author: JjPETERS, J.

text:
    STATE of Louisiana v. Kevin Tremaine FRANK.
    No. 04-0592.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Bart J. Bellaire, Assistant District Attorney, Abbeville, LA, for State of Louisiana.
    Patricia A. Thomas, Attorney at Law, Abbeville, LA, for Defendant/Appellant, Kevin Tremaine Frank.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   JjPETERS, J.

The defendant, Kevin Tremaine Frank, pled guilty to possession of cocaine with intent to distribute, a violation of La.R.S. 40:967(A)(1). However, in doing so, he reserved his right, pursuant to State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court rulings on pretrial motions. After the trial court sentenced the defendant, he appealed his conviction, asserting that the trial court erred in refusing to grant his motion to suppress the seized cocaine which formed the basis of his prosecution. For the following reasons, we reverse the defendant’s conviction and remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

On the afternoon of September 16, 2002, law enforcement officers of the Abbeville City Police Department stopped a vehicle occupied by the defendant and two other men. The defendant fled the scene on foot and, after a short chase, was apprehended. In retracing the defendant’s flight path, the pursuing officers found and seized a medicine bottle containing cocaine. They then arrested the defendant and charged him with possession of cocaine with intent to distribute. Law enforcement officers later conducted another search of the area where they had originally found the cocaine and, in doing so, discovered and seized a small amount of marijuana. The officers then charged the defendant with the additional offense of possession of marijuana, a violation of La.R.S. 40:966(E).

On March 14, 2003, the state filed two separate bills of information against the defendant — one for possession of marijuana, and the other for possession of cocaine with intent to distribute. The defendant then filed a motion to suppress the cocaine and marijuana, which the trial court rejected after a November 19, 2003 hearing. Thereafter, on December 19, 2003, the defendant entered a plea of nolo contendere Igto the distribution charge, reserving his Crosby rights. In exchange for the plea, the state dismissed the marijuana charge. In his one assignment of error, the defendant asserts that the state seized the cocaine in an illegal search and seizure.

The state presented the testimony of four witnesses at the hearing on the motion to suppress: Abbeville Police Department Lieutenant Steve Broussard, Detective Rick Coleman, and Officer Toby Walker; and Jeremiah Bolden, an employee of the Abbeville City Marshall’s Office. The trial court concluded, after hearing this testimony, that the initial stop of the vehicle containing the defendant constituted a valid investigative stop, and the defendant’s actions thereafter gave the investigative officers sufficient probable cause to pursue the defendant.

Lieutenant Broussard testified that on September 16, 2002, he received an anonymous telephone complaint that the defendant was “selling dope” in an area of the city known as “The Front.” After receiving the complaint, Lieutenant Broussard traveled to the location only to find that the defendant was not present. He then “put the information over on the radio that [the defendant] was possibly in possession of cocaine and that we wanted to stop and talk to him.” (Emphasis added). According to Lieutenant Broussard, Detective Coleman and Officer Walker acted on this transmission and stopped an automobile containing the defendant and two other men after it left a local trade school. He recalled that the two officers became aware the defendant was in the vehicle through a communication with Mr. Bolden, who had been monitoring the police transmissions with a scanner and heard Lieutenant Broussard’s radio transmission. Lieutenant Broussard arrived at the scene of the traffic stop in time to see the defendant being returned to the vehicle in handcuffs.

Mr. Bolden remembered little of the events of September 16, 2002. While he | ^recalled overhearing Lieutenant Brous-sard’s transmission, he did not recall looking for the vehicle containing the defendant or coming in contact with him, and he played no part in the defendant’s apprehension.

Detective Coleman could not remember exactly how he became involved in the stop of the vehicle containing the defendant. He only recalled that he had already been involved in an undercover narcotics investigation that afternoon and had been “shadowing the vehicle [occupied by the defendant] for some time.” He did not recall any communication from Lieutenant Broussard, but could give no explanation as to why he chose this particular vehicle to shadow. He testified that he first contacted the vehicle before it reached the trade school, and not at the trade school as suggested by Lieutenant Broussard. Detective Coleman observed the defendant and two men exit the vehicle at the trade school, enter and exit the trade school, reenter the vehicle, and drive away. At some point after the vehicle left the trade school, and on the radioed instruction of Lieutenant Broussard, Detective Coleman participated in stopping the vehicle. However, because his vehicle bore no police markings, he allowed a marked patrol unit to stop the vehicle.

According to Detective Coleman, when the vehicle stopped, the defendant exited the vehicle and immediately ran from the scene. Officer Walker began pursuit on foot and Detective Coleman drove around the block in an attempt to intercept the defendant. At one point during the pursuit, the defendant disappeared behind a garage, and, after apprehending the defendant, Detective Coleman walked behind the garage and found the medicine bottle containing the cocaine. He testified that he and Officer Walker returned to the scene twenty-five to forty minutes later, searched the same area, and recovered a small amount of marijuana. However, during that twenty-tfive4 to forty minutes, the officers left the crime scene unsecured.

Officer Walker accompanied Detective Coleman on the afternoon of September 16, 2002. According to Officer Walker, the pursuit of the defendant occurred, not as part of an ongoing investigation as suggested by Detective Coleman, but as a direct result of the anonymous telephone tip received by Lieutenant Broussard. He testified that he and Detective Coleman first traveled to “The Front” specifically looking for the defendant, but could not find him. They knew who they were looking for and had been provided with a picture of the defendant when they left the police station.

According to Officer Walker, he and Detective Coleman did not follow the vehicle containing the defendant to the trade school as suggested by Detective Coleman, but first encountered it when it pulled into the trade school. Officer Walker testified that they began looking for this specific vehicle after Mr. Bolden telephoned Lieutenant Broussard and informed the lieutenant that he had seen the defendant in the vehicle with two other men.

Officer Walker observed the same activity at the trade school as did Detective Coleman. However, Officer Walker made it clear that the defendant had already become the subject of the investigation as the defendant was “the only one [Officer Walker] was trying to pay attention to, watch him and see what he was doing— any particular thing, how he was acting, stuff like that.” Officer Walker testified that the order to stop the vehicle came from Detective Coleman, not Lieutenant Broussard.

During his pursuit of the defendant on foot, Officer Walker lost sight of him only when he ran behind the same garage where Detective Coleman lost visual contact. When he and Detective Coleman returned to the scene after the defendant was transported to the police station, they found the marijuana within two feet of |fiwhere Detective Coleman found the cocaine.

The following exchange occurred when Officer Walker was asked to explain the probable cause for the traffic stop:

DEFENSE COUNSEL: What was the probable cause for the traffic stop?
OFFICER WALKER: My stop would have been an investigatory stop, a narcotics stop.
DEFENSE COUNSEL: What is the authority for a narcotics stop, Officer? I’ve heard this and I really don’t know.
OFFICER WALKER: From his confidential informant. One, you would receive information from a confidential informant. That gives you enough probable cause to go and investigate.
DEFENSE COUNSEL: All right. And in this case, you have — did not have a confidential informant; did you?
OFFICER WALKER: Lieutenant Broussard received a phone call from a confidential informant, from my knowledge stating that the subject had narcotics.

In his sole assignment of error, the defendant asserts that the trial court erred in denying his motion to exclude the seized cocaine. He argues that the cocaine was seized as a result of an unconstitutional arrest, unsupported by reasonable suspicion or probable cause.

OPINION

In a suppression hearing, the state has the burden of proving the admissibility of all evidence seized without a warrant. La.Code Crim.P. art. 703(D). Additionally, this court’s holding in State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ denied, 99-0033 (La.5/28/99), 743 So.2d 658, sets forth the Rscope of review of the trial court’s ruling on a motion as follows:

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983); State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213. The admissibility of evidence seized without a warrant is a question for the trial court. Its conclusions on credibility and the weight of testimony regarding the voluntariness of a consent for admissibility purposes will not be overturned on appeal, unless the conclusions are unsupported by the evidence. State v. Gachot, 609 So.2d 269 (La.App. 3 Cir. 1992), writ denied, 617 So.2d 1180 (La.1993), cert. denied, 510 U.S. 980, 114 S.Ct. 478, 126 L.Ed.2d 429 (1993).

Thus, we must review the totality of the evidence presented to determine whether the trial court’s conclusions were supported by the record. The pivotal question to be decided herein is whether the initial stop of the vehicle occupied by the defendant was a legal stop.

United States Constitution Amendment TV and La. Const, art. I, § 5 protect individuals from unreasonable searches and seizures at the hands of law enforcement officers.

An illegal detention of a person is considered an unreasonable seizure. It is well settled that a seizure and search conducted without a warrant issued upon probable cause is per se unreasonable unless the warrantless seizure and search can be justified by one of the narrowly drawn exceptions to the warrant requirement.

State v. Lewis, 97-1244, p. 8 (La.App. 3 Cir. 3/6/98), 728 So.2d 1, 5, writ denied, 98-0977 (La.9/18/98), 724 So.2d 752.

One of the narrowly drawn exceptions is the automobile exception recognized in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and expanded upon in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). This exception “has developed because of the time problems associated with obtaining a search warrant 17and the mobility of automobiles.” State v. Washington, 96-656, p. 8 (La.App. 3 Cir. 1/15/97), 687 So.2d 575, 580. However, a law enforcement officer seeking to assert the automobile exception must establish that exigent circumstances and probable cause existed for the warrantless stop and search. Id. In Ross, 456 U.S. at 808-09, 102 S.Ct. at 2164-65, the Supreme Court stated that “[i]n this class of cases, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” (Emphasis added) (footnote omitted).

We find that the record does not establish probable cause for the vehicle stop. At best, and without considering the many internal inconsistencies in the investigating officers’ testimony, the record establishes that the investigating officers stopped the vehicle occupied by the defendant on the basis of an anonymous tip that the defendant was distributing drugs at a specific location in the city. The officers pursued this tip and were unable to locate the defendant at that location. Thus, one can only speculate whether the tip was inaccurate or the defendant left the scene before the officers’ arrival.

Thereafter, Detective Coleman and Officer Walker began to observe the defendant at the trade school (or perhaps sooner if Detective Coleman’s recollection is correct) and followed him until they received instructions to stop the car he occupied. The record contains no evidence of the distance between “The Front” and the trade school, or between the trade school and the point where the officers stopped the vehicle. However, it is clear that from the time Detective Coleman and Officer Walker came into contact with the defendant until the vehicle he occupied was stopped, they did not observe him do anything illegal, or even suspicious. Based on the | Rinformation available to them, the officers could not have obtained a search warrant. Therefore, they could not avail themselves of the automobile exception to the warrant requirement.

The state asserts that, not withstanding the lack of probable cause, they had sufficient reasonable suspicion to avail themselves of the provisions of La.Code Crim.P. art. 215.1(A). The supreme court considered this argument in State v. Sims, 02-2208, pp. 4-5 (La.6/27/03), 851 So.2d 1039, 1043, and stated the following:

While an arrest requires officers to have probable cause to believe that a suspect has committed a crime, see U.S. Const, amend. IV and La. Const, art. I, § 5, an investigatory stop requires a lesser standard of “reasonable suspicion.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Louisiana, the investigatory “Terry ” stop is codified in La.Code Crim. Proc. Art. 215.1(A): “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” Like an arrest, an investigatory stop entails a complete restriction of movement, although for a shorter period of time. State v. Bailey, 410 So.2d 1123, 1125 (La.1982).
In making a brief investigatory stop, the police “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Specifically, our courts have interpreted article 215.1 to require that an officer point to specific and artic-ulable facts to justify an investigatory stop. State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049.

Just as the facts available to the investigating officers did not rise to the level of probable cause, they also do not establish a particularized or objective basis for suspecting the defendant of criminal activity. The assertions of an anonymous source, without more, are not sufficient to reasonably establish that someone traveling down the highway has been, is, or is about to be engaged in criminal conduct. At best, they had a generalized suspicion based on unsubstantiated information.

l3The action of the officers in stopping the vehicle occupied by the defendant without reasonable suspicion rendered unlawful any resultant seizure of the abandoned cocaine. See State v. Belton, 441 So.2d 1195 (La.1983).

DISPOSITION

For the foregoing reasons, we set aside the defendant’s conviction and sentence, and remand the matter to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: JjGREMILLION, Judge.

license: Public Domain

text:
    Pamela WELCOME v. MARTIN DE PORRES NURSING HOME.
    No. 04-537.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      David B. McCain, Brame & McCain, Lake Charles, LA, for PlaintiffiAppellant Pamela Welcome.
    Charles V. Musso, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee Martin De Porres Nursing Home.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   JjGREMILLION, Judge.

The plaintiff, Pamela Welcome, appeals the workers’ compensation judge’s finding that she failed to prove that her wrist and back conditions were work-related. For the following reasons, we affirm.

FACTS

Welcome was employed as a certified nurse’s aide by Martin dePorres Nursing Home on three separate occasions, the latest being January 2001 through September 2002. On September 12, 2002, the Nursing Home fired her for burning up a van’s engine. Thereafter, on April 29, 2003, Welcome filed a disputed claim for compensation against the Nursing Home seeking medical treatment, compensation benefits, penalties, and attorney’s fees for her bilateral carpal tunnel syndrome and lower back pain. She alleged that these conditions arose as a result of her work-related duties, which included lifting patients. Welcome underwent a carpal tunnel release on her right hand on January 10, 2003, with the same procedure recommended for her left hand. She also sought treatment for her lower back pain from Dr. David Duhon, a chiropractor. An August 15, 2003 MRI revealed a broad-based central, left paracentral disc protrusion or herniation at the L5-S1 disc level.

This matter proceeded to a trial on the merits on May 6, 2003. On February 6, 2004, the workers’ compensation judge issued oral reasons finding that Welcome failed to prove that either of her conditions was work-related. A judgment was rendered in this matter dismissing her claims against the Nursing Home with prejudice. This appeal by Welcome followed.

J^ISSUES

On appeal, Welcome raises three assignments of error. She argues that the workers’ compensation judge erred in finding that she failed to prove that her carpal tunnel injury was an occupational disease, that she failed to prove a work-related injury to her lower back, and that she was not entitled to medical treatment and compensation benefits.

OCCUPATIONAL DISEASE

Welcome first argues that the workers’ compensation judge erred in holding that she failed to prove her bilateral carpal tunnel syndrome qualified as an occupational disease.

Louisiana Revised Statute 23:1031.1 provides in part:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined ... shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome....

In order to recover medical and compensation benefits as the result of an occupational disease, Welcome must prove that she developed carpal tunnel syndrome due to the nature of her duties as a nurse’s aide. Dunaway v. Lakeview Reg’l Med. Ctr, 02-2313 (La.App. 1 Cir. 8/6/03), 859 So.2d 131. The plaintiffs burden in this instance is to prove a connection between her condition and her work-related duties by a reasonable probability. Id. Proof of only a possible relationship ^between the two does not satisfy this burden. Id. The determination of whether a plaintiff has carried her burden of proof is a finding of fact; thus, the workers’ compensation judge’s finding is reviewed pursuant to the manifest error standard of review. Banks v. Indust. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551.

Welcome testified that her job duties as a nurse’s aide included lifting and changing the patients in their beds, transferring them to wheelchairs, beds, shower chairs, or toilets, and feeding, shaving, bathing, and combing their hair. She also drove them to their doctor’s appointments, helped them to and from the van, and sat with them while they waited. As a result of these duties, she stated that her hands and wrists started bothering her during her last term of employment with the Nursing Home.

Welcome’s carpal tunnel syndrome was treated by both Dr. Tariq Khan and Dr. Shakeel Sandozi. She testified that she told both doctors that her wrist problems arose as a result of her job duties. In her deposition, she testified that she experienced numbness and tingling in her hand and arms for approximately nine months to a year prior to her April 30, 2002 appointment with Dr. Khan. She further denied telling Dr. Sandozi that she experienced hand and wrist pain for at least two years prior to her initial appointment with him on December 6, 2003.

Dr. Khan, an internist at the W.O. Moss Regional Medical Center, testified that Welcome first complained of right hand pain, numbness, and tingling, especially at night, on April 30, 2002. She complained of similar symptoms in her left hand on July 24, 2002. He testified that his notes contained no mention by her |4of anything which may have precipitated this condition. A July 31, 2002 EMG revealed moderate bilateral carpal tunnel syndrome, greater on the right.

Dr. Sandozi, Chief of Surgery at Moss Regional, initially saw Welcome on December 16, 2002. He stated that she complained of experiencing pain and numbness in her hands and fingers for a few years, which interfered with her duties as a nurse’s aide. Dr. Sandozi diagnosed Welcome as suffering from bilateral carpal tunnel syndrome, worse on the right. He performed a carpal tunnel release on her right hand on January 10, 2003, from which he stated her recovery was uneventful.

Both Drs. Khan and Sandozi identified numerous conditions which can cause carpal tunnel syndrome, such as disease, trauma, and repetitive motions. Dr. Sandozi described the types of duties classically leading to this condition as those involving repetitive actions of the hands and fingers, e.g., typing, cashier work, moving heavy objects, or using vibrating tools. He reluctantly agreed that nurse’s aides, typically, do not develop carpal tunnel syndrome. Finally, Drs. Khan and Sandozi both found it difficult to determine whether Welcome’s job duties actually caused her carpal tunnel syndrome or whether they simply exacerbated an underlying problem.

The workers’ compensation judge held that Welcome failed to prove that her carpal tunnel syndrome was caused by her work-related duties. After reviewing the record, we conclude that the workers’ compensation judge reasonably could have concluded that Welcome failed to prove a causal connection between the two. Although carpal tunnel syndrome, in and of itself, is an occupational disease, Welcome still had to prove that her duties caused the condition. Despite being | ^questioned extensively on this issue, neither of her treating physicians would make that connection. When questioned, both equivocated by stating that while her duties may have exacerbated her condition, they were unsure if they actually caused it. Dr. San-dozi further stated that the duties of a nurse’s aide typically do not lend themselves to the development this type of condition. Finally, we point to Dr. Sandozi’s notes in which he noted Welcome reported suffering from these symptoms for a few years prior to December 16, 2002, and to Dr. Khan’s notes which are devoid of any mention by her that this condition was work-related. Thus, we perceive no error in the workers’ compensation judge’s finding that Welcome failed to prove a causal relationship between her carpal tunnel syndrome and her work duties. Finding no error, this assignment of error is dismissed as being without merit.

BACK INJURY

In her second assignment of error, Welcome argues that the workers’ compensation judge erred in holding that she failed to prove a work-related injury to her lower back.

In order to recover workers’ compensation benefits, a injured employee must prove by a preponderance of the evidence that she suffered “a personal injury by accident arising out of and in the course of’ her employment. La.R.S. 23:1031(A). An “accident” is defined as an “unexpected or unforseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

IfiThe Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babeo Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

Welcome testified that her lower back gradually started hurting over time during her last period of employment with the Nursing Home. On September 11, 2002, she and co-worker drove a patient to the Veteran’s Administration Hospital in Houston, and sat at the hospital all day waiting for his appointment. Welcome stated that her back hurt so badly that later she was unable to drive the Nursing Home’s van back to Lake Charles. She reported that she was fired the next day. She stated that she never reported her lower back pain to the Nursing Home because she was afraid that she would lose her job. Nor could she identify a specific incident initiating her |7pain other than the September incident and her typical duties involving lifting patients. After her termination, Welcome testified that she sought treatment from Moss Regional. She eventually sought treatment from Dr. Duhon, on August 13, 2003. Dr. Duhon ordered an MRI, which revealed a broad-based central, left paracentral disc protrusion or herniation at the L5-S1 disc level.

Dr. Duhon testified that Welcome told him that her back started hurting in May or June 2002, and that it progressively worsened thereafter. He stated that she listed the cause of her pain as being related to her repetitive duties of lifting, pulling, and pushing on patients; however, he stated that she was unable to identify a particular incident as initiating her lower back pain. Dr. Duhon testified that Welcome did indicate one instance when her back started hurting while she was driving, that she was unable to drive afterwards, and that this incident led to her termination.

Dr. Khan testified that Welcome visited the emergency room at Moss Regional on September 13, 2002, at which time she complained of experiencing right-sided lower back and tail bone pain for a long time. The emergency room records indicate that she related this pain to driving. Welcome was subsequently seen by Dr. Khan on November 12, 2002. At that time, she complained of pain in her tail bone for the last year, but reported no history of trauma. Prior to September 2002, Welcome was seen in Moss Regional’s Walk-In Clinic on August 29, 2001, for complaints of lower back pain and muscu-loskeletal strain as a result of heavy lifting. On October 10 and 12, 2001, she returned to the clinic for right groin pain after falling onto her right hip at home. On October 17, 2001, she complained of right | sthigh pain at Moss Regional’s Gynecological Clinic.

The workers’ compensation judge held that Welcome failed to prove that her lower back condition was work-related:

I have read and reread the doctor’s report and done the same with my notes. I have paid close attention to everyone who testified in live testimony sitting no more than three feet from them at all times, and I can find nothing to support her claim that she has a work related injury. The most liberal and forgiving interpretation of her live testimony and the jurisprudence would leave any trier of fact forced to conclude that she is probably a woman with serious health problems, but the resolution of these problems do not belong' in this particular court.

Reviewing this finding pursuant to the manifest error standard of review, we find that the workers’ compensation judge was presented with differing views of the evidence and that he chose not to credit the testimony offered by Welcome. Welcome admitted that her lower back condition developed gradually over time. Other than the September 11, 2002 incident, which occurred the day prior to her termination, she could point to no other specific incident as precipitating her condition. She told Dr. Duhon that her pain commenced in May or June 2002, while Moss Regional’s records indicate that she was also seen for lower back pain in August 2001. Furthermore, the Nursing Home did not learn of Welcome’s alleged injury until she filed her disputed claim for compensation. Considering the conflicting views, we cannot say that it was unreasonable for the workers’ compensation judge to find that Welcome failed to prove a work-related injury to her lower back. Accordingly, this assignment of error is dismissed as being without merit.

Considering these findings, we need not discuss Welcome’s third assignment of error.

laCONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Pamela Welcome.

AFFIRMED.


author: | .PETERS, J.

text:
    MARSH ENGINEERING INC., et al. v. Ernest L. PARKER, et al.
    No. 2004-0509.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Warren D. Rush, Charles M. Rush, Attorneys at Law, Lafayette, LA, for Plaintiff/Appellant, Richard D. Barnett/Marsh Engineering, Inc., et al.
    James J. Hautot, Judice & Adley, Lafayette, LA, for Defendant/Appellee, New England Insurance Company.

      Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   | .PETERS, J.

The plaintiff, Richard D. Barnett, appeals the grant of an exception of no cause of action dismissing six defendants from the litigation. For the following reasons, we affirm the trial court’s grant of the exception in all respects.

DISCUSSION OF THE RECORD

This litigation began on November 22, 1991, when Barnett and Marsh Engineering, Inc. filed a petition against Ernest L. Parker and Logan Nichols, seeking various forms of relief for damages allegedly sustained in a business transaction involving the parties to the litigation. The facts giving rise to the litigation relate back to 1981 when Barnett and Parker, who is a lawyer, began an attorney-client relationship which subsequently developed into a personal and business relationship. In 1985, Barnett, Parker, and two other individuals acquired all of the stock in Campbell Wells Corporation at the cost of $2,052,500.00. The purchasers financed part of the purchase price through a Lafayette, Louisiana bank.

On February 3, 1986, Barnett executed an Act of Cash Sale and Assumption (act of transfer) transferring his stock to Parker. The act of transfer, which was prepared by Parker, provided that, in exchange for the stock, Parker would assume Barnett’s share of the Lafayette bank indebtedness and would pay Barnett $1,000.00. Barnett asserts that the act of transfer did not accurately state the terms of the agreement. He claims that Parker was to hold the stock in trust until he (Barnett) overcame certain financial difficulties. Parker asserts that the transfer was just what it purported to be — transfer of full ownership to him. When Parker refused to return the stock to Barnett, he filed this lawsuit. In his original petition, Barnett premised |¡>his requests for relief on various grounds, including breach of contract, fraud, breach of fiduciary duty, failure of consideration, detrimental reliance, and nullity. Of particular importance to this litigation is the assertions in the original petition that, at all times during the original stock acquisition and the subsequent transfer giving rise to this litigation, Parker functioned as Barnett’s legal advisor.

In April of 2003, Barnett amended his original petition for the fifth time and added the following new defendants to the litigation:

1. Bean and Parker, a Louisiana law partnership which, in 1986, was comprised of James Wesley Bean and Ernest L. Parker (Law Firm),
2. New England Insurance Company (New England), the professional liability insurance carrier for the partnership and the partners in 1986,
3. The Estate of James Wesley Bean (Estate), and
4. Llewellyn Beadle Bean, the widow of James Wesley Bean, and Bean’s two daughters, Carolyn Bean Guil-beaux and Nancy Bean Sutton (Bean heirs).

In joining these defendants, Barnett asserted for the first time that both Parker and Bean had personally provided him with legal representation in the stock transactions, with Parker serving as general counsel. Specifically, Barnett asserted that both attorneys and the Law Firm breached the standard of care owed him as their client in a number of particulars, including the assertions that neither Parker nor Bean properly disclosed to him the relevant aspects of the transactions, the alleged conflicts of interest of the Law Firm, or of Barnett’s need for independent counsel. Thus, all of the assertions were couched in terms of legal malpractice. Barnett further asserted Lthat the Law Firm, the Estate, and the heirs are vicariously liable to him for the legal malpractice of both Parker and Bean, and that New England is liable to him pursuant to the terms of the professional liability insurance policy issued to the partners and the Law Firm.

On June 11, 2003, New England responded to Barnett’s April 2003 pleading by filing a peremptory exception of no cause of action. In the exception, New England asserted that all of the claims against the new defendants were perempt-ed by La.R.S. 9:5605. After a November 3. 2003 hearing, the trial court rendered judgment granting the exception and dismissing the six defendants from the litigation. Barnett timely appealed this judgment.

OPINION

The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts that are alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234 (La.1993). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ.P. art. 931. Therefore, in considering a trial court ruling on an exception of no cause of action, the appellate court accepts the allegations of fact in the petition as true. The determination is based on whether the face of the petition shows the plaintiffs are legally entitled to the relief sought therein. Everything on Wheels Subaru, Inc., 616 So.2d 1234.

The trial court granted the exception of no cause of action based on its interpretation of La.R.S. 9:5605, which became effective after the purported transfer |4of the stock at issue, but before Barnett filed his original suit. When originally enacted, La.R.S. 9:5605 read in its entirety as follows:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys, or any professional law corporation, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

The legislature amended the statute by Acts 1992, No. 611, § 1, adding language to Paragraph A, re-designating Paragraphs B and C as Paragraphs D and E, and rewriting Paragraphs B and C. The statute now reads as follows:

A.No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all | ^events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and per-emptive period shall be governed exclusively by this Section.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
E. The peremptive period provided in Subsection A of this Section shall not apply to cases of fraud, as defined in Civil Code Article 1953.

Barnett raises a number of issues to be considered in our review of the trial court decision.

Law of the Case Issue

Barnett first asserts that the trial court is precluded from applying La.R.S. 9:5605 by the law of the case doctrine. He bases this assertion on a prior decision of this court wherein we determined that La.R.S. 9:5605 did not apply to Barnett’s original suit against Parker. Marsh Engineering, Inc. v. Parker, 94-1129 (La.App. 3 Cir. 5/8/96), 688 So.2d 1042, writ denied, 96-1434 (La.9/27/96), 680 So.2d 637.

1 ¿That appeal arose because the trial court retroactively applied the provisions of La.R.S. 9:5605 and dismissed Barnett’s original suit against Parker on the basis of prescription. In reversing the trial court judgment, this court recognized that “[pjri- or to enactment of La.R.S. 9:5605, as a general rule, actions against attorneys for legal malpractice were considered ‘delictual’ in nature and governed by the one-year liberative prescription period recited in La.Civil Code art. 3492,” but that there were recognized exceptions wherein a ten-year prescriptive period was applicable, and Barnett’s assertions in his pleadings fit within one of those exceptions. Id. at 1045. Thus, absent the application of La. R.S. 9:5605, Barnett’s action against Parker was timely filed.

In considering the application of La.R.S. 9:5605, this court stated the following:

A statute of limitation is remedial in nature and, generally, applies to all actions instituted after its effective date even though the cause of action accrues before the statute was enacted. State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943); Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940); DeArmas v. DeArmas, 3 La. Ann. 526 (1848). Even though prescriptive statutes are generally retroactive, they may not violate the constitutional prohibition against divesting a vested right. Such divestiture offends “due process” guaranteed by both the State and United States Constitutions. However, as stated in Lott v. Haley, 370 So.2d 521, 524 (La.1979), “[njonetheless, a newly-created statute of limitation or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights.”

Id. at 1046.

Because La.R.S. 9:5605, as originally enacted, shortened the prior ten-year prescriptive period to one year without providing for a reasonable time wherein one affected by the statute could assert his vested right, this court concluded that the statute could not be retroactively applied. We then reversed the trial court judgment 17granting the exception of prescription and remanded the matter for further proceedings.

“The ‘law of the case’ is a policy by which an appellate court will not, on a subsequent appeal, reconsider its earlier ruling in same case.” Burns v. Sabine River Auth., 614 So.2d 1337, 1339 (La.App. 3 Cir.), unit denied, 617 So.2d 935 (La. 1993). However, it is not binding against those who were not parties to the litigation at the time the prior decision was rendered. Hesse v. Champ Serv. Line, 98-1627 (La.App. 3 Cir. 3/31/99), 732 So.2d 707. The six defendants at issue in this appeal were not parties to the litigation in 1996. Therefore, we reject Barnett’s argument that the law of the case doctrine is applicable to the trial court’s ruling on New England’s exception of no cause of action.

Issue of Trial Court Dismissing all Defendants on New England’s Exception

In filing its exception of no cause of action, New England did not purport to represent any other defendant. However, the exception itself sought dismissal of the suit on behalf of all the other newly joined defendants. In brief, Barnett challenges the trial court’s authority to dismiss all of the defendants as New England clearly acknowledged that it was not appearing on their behalf.

We find no merit in this challenge. Because New England was joined as the insurer of Bean, Parker, the Law Firm, the Estate, and the heirs, any relief available to it was dependent upon the dismissal of those defendants from the litigation. The trial court may notice the failure to disclose a cause of action on its own motion. La.Code Civ.P. art. 927(B). The fact that another defendant suggested to the trial court that it should consider noticing the pleading defect does not affect the validity of the trial court’s action in that regard.

| aLiability of Bean, the Law Firm, the Estate, and the Heirs for Bean’s Actions

In his April 2003 pleading, Barnett asserted that Bean committed acts of legal malpractice separate from those of Parker. In doing so, he specifically asserted that Bean committed no fraud in his acts of legal malpractice. Barnett asserts that the suit against Bean is timely because the amendment relates back to November 22, 1991, the date he filed his original petition.

“When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” La.Code Civ.P. art. 1153. However, “a supplemental petition filed after a peremptive period has run does not relate back to the time of filing of the original petition.” Robin v. Allstate Ins. Co., 02-689, p. 11 (La.App. 3 Cir. 2/5/03), 844 So.2d 41, 49, writ denied, 03-1818 (La.10/17/03), 855 So.2d 763. Additionally, the mere adding of a defendant does not in itself cause the addition to relate back to the original pleading. Hebert v. Doctors Mem’l Hosp., 486 So.2d 717 (La.1986).

Bean’s alleged acts of legal malpractice are separate causes of action from Parker’s alleged legal malpractice acts. The 1992 amendment to La.R.S. 9:5605, and specifically La.R.S. 9:5605(B), established the “reasonable time” for the protection of a vested right which this court had found lacking in La.R.S. 9:5605 as originally enacted in 1990. That amendment provided that a plaintiff had until September 7, 1993, to file suit “in a court of competent jurisdiction and proper venue ... without regard to the date of discovery of the alleged [legal malpractice].” La. R.S. 9:5605(B). Barnett failed to file suit against Bean for his individual acts of legal malpractice within that time period, and we find no error in the trial court’s determination that | gBarnett’s suit against Bean, the Law Firm, the Estate, the heirs, and New England for any acts of legal malpractice by Bean were perempted.

Liability of Bean, the Law Firm, the Estate, and the heirs for Parker’s Actions

Barnett next asserts that, because the added defendants are solidarity liable with Parker for his damages, the timely suit against Parker interrupted prescription as to all the solidary obligors. See La.Civ.Code arts. 1799, 3503. However, the issue before us is one of peremption, not prescription. Peremption and prescription differ in several respects. “Per-emption may not be renounced, interrupted, or suspended.” La.Civ.Code art. 3461. Additionally,

Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation (La. Civ.Code art. 1762 (1)); peremption, however, extinguishes or destroys the right (La. Civ.Code art. 3458). Public 'policy requires that rights to which peremption periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period.

Hebert, 486 So.2d at 723 (footnote omitted).

Although there exist some inconsistencies in the statute, La.R.S. 9:5605(33) clearly states that “[t]he one-year and three-year periods of limitation provided in [La.R.S. 9:5605(A) ] are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interpreted, or suspended.” See also Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291. Additionally, La.R.S. 9:5605(A) applies to any “action for damages against any attorney ... whether based on tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services.” This language is broad enough to include vicarious liability for the actions of partners or associates.

|inThe fact that Barnett alleged fraud on the part of Parker does not change the application of La.R.S. 9:5605, despite the language of La.R.S. 9:5605(E). As explained by this court in Dauterive Contractors v. Landry & Watkins, 01-1112, p. 29 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, 1260-61:

Subsection E of La.R.S. 9:5605 states that the existence of fraud operates to make Subsection A’s peremptive period inapplicable. Earlier in this opinion, we held that in cases of fraud, the singular “peremptive period” referenced in Subsection E refers to the three-year per-emptive period only. Contra Coffey, 762 So.2d at 1187 (“Because the one and three-year limitations of La.R.S. 9:5605(A) are peremptive, the fraud exception of La.R.S. 9:5605(E) is applicable to both.”). Therefore, if fraud is proven, the three-year peremptive period will be inapplicable; the claim can be brought at any time after the act of malpractice, subject still, however, to the one-year peremptive period, to which the fraud exception is inapplicable. In Broussard v. Toce, 99-555, p. 5 (La.App. 3 Cir. 10/13/99); 746 So.2d 659, 662, we said that “Broussard’s argument that his fraud claim has not prescribed fails to recognize that this claim is still subject to the one-year prescriptive [peremp-tive] period from the date of discovery. La.R.S. 9:5605(A). Subsection E of La. R.S. 9:5605 carves out an exception for the three-year peremptive period only.” See also Broussard v. F.A. Richard & Assoc. Inc., 732 So.2d 578 (the fraud claim, while not subject to the three-year peremptive period, is still subject to the one-year period).

Barnett failed to timely file suit against Bean, the Law Firm, the Estate, the heirs, and New England for Parker’s legal malpractice for his individual acts of legal malpractice, and we find no error in the trial court’s determination that Barnett’s suit against Bean, the Law Firm, the Estate, the heirs, and New England for any acts of legal malpractice by Parker were perempted.

New England’s Right to Benefit from the Provisions of La.R.S. 9:5605

Finally, Barnett asserts that because La.R.S. 9:5605 provides peremptive periods only for lawsuits against attorneys and firms, New England cannot avail itself of the provisions of La.R.S. 9:5605. In other words, even though New England may be solidarity bable with Bean, the Law Firm, the Estate, and the heirs, the insurer In does not have the requisite attorney-client relationship to assert a defense under this statute.

“A solidary obligor may raise against the obligee defenses that arise from the nature of the obligation, or that are personal to him, or that are common to all the solidary obligors. He may not raise a defense that is personal to another soli-dary obligor.” La.Civ.Code art. 1801. “[W]hen an immunity from suit is classified as personal, an insurer may not plead the immunity as a defense to a suit under the Direct Action Statute.” Liberty Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 579 So.2d 1090, 1093 (La.App. 4 Cir.), writ denied, 586 So.2d 563 (La.1991). Thus, the question is whether the protection provided an attorney under La.R.S. 9:5605 is personal to the attorney. We conclude it is not.

The direct action statute does not create an independent cause of action against the insurer. It merely grants a procedural right of action against the insurer where the plaintiff has a substantive cause of action against the insured. Descant v. Adm’rs of Tulane Educ. Fund, 93-3098 (La.7/5/94), 639 So.2d 246. When the injured party’s substantive' cause of action against the original tort feasor is extinguished, the procedural right of direct action against the insurer, which is purely remedial and ancillary to the cause, must fall by operation of law. Dumas v. U.S. Fid. & Guar. Co., 241 La. 1096, 134 So.2d 45 (1961).

Under the direct action statute, the Legislature did not intend to give the insurer the right to plead defenses which are purely personal between the insured and claimant and in no way growing out of, or connected with, the accident or policy. Edwards v. Royal Indem. Co., 182 La. 171, 161 So. 191 (1935): Castille v. Chaisson, 544 So.2d 670 (La.App. 3 Cir. 1989). Louisiana courts have held the following 112immunities to be personal to the insured and therefore unavailable to the insurer: interspousal immunity, parental immunity, governmental immunity, charitable immunity, minority, bankruptcy and insanity. Danzy v. U.S. Fid. & Guar. Co., 380 So.2d 1356, 1359 n. 5 (La.1980). However, an immunity which denies the plaintiff a cause of action is not personal to an insured and may be invoked by his insurer. Gray v. Margot Inc., 408 So.2d 436 (La. App. 1 Cir.1981). A peremptive statute totally destroys the previously existing right with the result that, upon expiration of the prescribed period, a cause of action or substantive right no longer exists to be enforced. Pounds v. Schori, 377 So.2d 1195 (La.1979).

In the ease before us, peremption as a basis for the exception of no cause of action asserted by Bean, the Law Firm, the Estate, and the heirs arises from the fact that the claims against them are based on legal malpractice. The statutory peremption is not a personal defense between them and Barnett. The peremption statute in the present case creates a defense of no cause of action which is available to New England as their insurer.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of the exception of no cause of action dismissing Barnett’s claims against Bean and Parker, New England Insurance Company, the Estate of James Wesley Bean, Llewellyn Beadle Bean, Carolyn Bean Guilbeaux and Nancy Bean Sutton. We tax all costs of this appeal to Richard D. Barnett.

AFFIRMED.

      .This matter has been before this court numerous times during the years of litigation. For a more detailed summary of the facts surrounding the stock acquisition and transfer, see Marsh Engineering, Inc. v. Parker, 94-1129 (La.App. 3 Cir. 5/8/96), 688 So.2d 1042, writ denied, 96-1434 (La.9/27/96), 680 So.2d 637.

      . While Nichols remains a defendant in the litigation, his involvement in the transactions is not an issue in this appeal.

      . In December of 1993, Parker had joined New England as a third-party defendant, but the April 2003 filing was the first time Barnett had attempted to join the insurer in the principal demand.

      . New England remains a defendant in Parker's third-party claim.

      . The Louisiana Legislature enacted La.R.S. 9:5605 into law by Acts 1990, No. 683, § 1, effective September 7, 1990. The stock transfer at issue occurred on February 3, 1986, and Barnett filed suit on November 21, 1991.


author: | GREMILLION, Judge.

text:
    John Nathan THIBEAUX v. Chuck R. TROTTER, et al.
    No. 04-482.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Randal L. Menard, Lafayette, LA, for Plaintiff/Appellee, John Nathan Thibeaux.
    L. Lane Roy, Dawn L. Morris, Esq., Preis, Kraft & Roy, Lafayette, LA, for Defendants/Appellants, Westport Insurance Company, Chuck R. Trotter, Schilling Distributing Company, Inc.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   | GREMILLION, Judge.

The defendants, Schilling Distributing Company, Inc., Chuck R. Trotter, and Westport Insurance Company (collectively referred to as Schilling), appeal a jury verdict awarding the plaintiff, John Nathan Thibeaux, damages for future lost wages/loss of earning capacity and future medical expenses. For the following reasons, we affirm.

FACTS

Thibeaux filed suit against Schilling after he was rear-ended by one of its delivery trucks on August 4, 2000. Schilling does not dispute liability. This matter proceeded to trial solely on the issue of damages. Following a jury trial, the jury awarded Thibeaux damages totaling

$800,092.77. The jury award was broken down into the following categories:

GENERAL DAMAGES
Physical injury suffered $ 75,000.00
Pain & Suffering, both physical and mental $ 75,000.00
Physical impairment $ 0
Permanent disability, if any $ 0
Loss of enjoyment of life $ 0
SPECIAL DAMAGES
Past Lost Wages $ 30,000.00
Future Lost Wages/Loss of Earning Capacity $560,000.00
Past Medical Expenses $ 25,092.77
| gFuture Medical Expenses $ 35,000.00

In response to this verdict, Schilling filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial arguing that the jury’s award for future lost wages/loss of earnings capacity was inconsistent with its finding that Thi-beaux suffered no permanent disability. It further argued that the award of $35,000 in future medical expenses was purely speculative and should be reduced to the amount proven at trial, $1500. Subsequent to a hearing, the trial court denied the motion finding that the awards made by the jury were “amply supported by the evidence that was presented.” This appeal by Schilling followed.

ISSUES

On appeal, Schilling reurges its JNOV arguments that the award of damages for future lost wages/loss of earning capacity was inconsistent with the finding of no permanent disability and seeks a reduction of the future medical expenses from $35,000 to $1500.

We further note that Thibeaux has raised three assignments of error in his appellate brief asking for an increase in the awards for past and future lost wages/ loss of earning capacity and future medical expenses. However, since he failed to answer the appeal or appeal in his own right, as required by La.Code Civ.P. art. 2133, he waived his right to seek a modification of this judgment. See Matthews v. Consol. Cos., Inc., 95-1925 (La.12/8/95), 664 So.2d 1191. Thus, we shall not address his assignments of error.

FUTURE LOST WAGES

The jury awarded Thibeaux $560,000 in future lost wages/loss of earning |scapacity, but found that he suffered no monetary loss for permanent disability from the August 4, 2000 accident. Thus, Schilling argues that the jury award is inconsistent and should be reversed.

The types of damages awarded in a personal injury action consist of general and special damages. General damages, are speculative in nature and, thus, incapable of being fixed with any mathematical certainty. They include pain and suffering, physical impairment and disability, and loss of enjoyment of life. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. Special damages, however, may be determined with some degree of certainty and include past and future lost wages and past and future medical expenses. Id. In this instance, the jury awarded Thibeaux special damages in the absence of an award for general damages.

In Wainwright, the supreme court held that it was not, per se, error for a jury to award a plaintiff special damages (medical expenses), but not to award general damages (pain and suffering). Rather than performing a de novo review in such a situation, the supreme court held that the proper course of action is for the reviewing court to first determine whether the fact-finder’s “determination that the plaintiff is entitled to [special damages] but not to general damages is so inconsistent as to constitute an abuse of discretion. Only-after the reviewing court determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record.” Id. at 76. The matter at issue differs from Wainwright in that Schilling is not contesting the jury’s failure to award general damages, rather, it argues that the jury erred in awarding special damages (future lost wages/loss of earning capacity) in the face of a zero award for general damages (permanent | ¿disability).

The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence. Hornsby v. Bayou Jack Logging, 03-1544 (La.App. 3 Cir. 5/5/04), 872 So.2d 1244. An award of special damages is reviewed pursuant to the manifest error standard of review, unlike a general damage award which is reviewed pursuant to the abuse of discretion standard. Id. Thus, the “adequacy or inadequacy of the award should be determined by the facts or circumstances of the case under consideration.” Id. at 1248. Thus, we must first determine whether the jury was manifestly erroneous in awarding Thibeaux $560,000 in future lost wages/loss of earning capacity.

After reviewing the record in its entirety, we first note that Thibeaux presented evidence that more probably than not, he has suffered permanent disability as a result of this accident. He was diagnosed as suffering from chronic pain syndrome of the lower back secondary to a ligament disruption at L5-S1 by Dr. Louis Blanda, an orthopedic surgeon. Dr. Blanda assigned Thibeaux a five percent total body disability and restricted him to light duty work. He was further diagnosed as suffering from moderate depression and chronic pain syndrome by Dr. F.T. Fried-berg, a clinical psychologist. Although Schilling presented evidence that Thibeaux suffered a lower back injury in a 1984 accident, Dr. Blanda, the treating physician, reported that diagnostic testing performed at the time revealed no problems at L5-S1. While he released Thibeaux to light-duty work in 1985, after fifteen months of treatment, Dr. Blanda noted that Thibeaux was released to full unrestricted activities by Dr. Thomas Laborde, a physiatrist, on November 13, 1985. Thi-beaux Ifthen worked fifteen years for his employer, Williams Gas Pipeline, as a maintenance man and equipment operator, both manual labor positions, without any complaints. Accordingly, we find that more probably than not, Thibeaux proved he suffered permanent disability as a result of the August 4, 2000 accident.

We note that Schilling strenuously argues that the jury’s finding of zero damages for permanent disability “translates into a jury factual determination that [Thibeaux] suffered no permanent disability,” citing Sengsouly v. Allstate Insurance Co., 99-22 (La.App. 3 Cir. 6/9/99) 744 So.2d 649, 653, writ denied, 99-2526 (La.11/19/99), 749 So.2d 677. However, as in Sengsouly, we have found that the jury committed error in its finding regarding permanent disability. The reason we make this finding is to determine whether the jury erred in awarding Thibeaux damages for future lost wages/loss of earning-capacity. Since Thibeaux failed to answer the appeal or appeal in his own right, the jury’s failure to award him damages for permanent disability is a final judgment which may not be reversed on appeal.

[B]ecause to so do would result in a modification in favor of the nonappealing defendant, contrary to Louisiana law. La.CCP art. 2133; Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971); Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (1968); and Britt Builders, Inc. v. Bris- ter, 618 So.2d 899 (La.App. 1st Cir.1993). While a defendant who has not appealed or answered the appeal and who did not seek modification, revision or reversal of that judgment may assert in support of that judgment any argument supported by the record under La.CCP art. 2133, he may not obtain a modification of the judgment without appealing or answering the appeal.

Matthews, 664 So.2d at 1191-92.

With regard to lost wages/loss of earning capacity, the jury heard testimony from several expert witnesses on this issue. Dr. Roy Womack, a professor of economics and finance, determined Thi-beaux’s future lost earnings based on two | (¡figures. The first was based on him being totally disabled from work; the second on him returning to work at a lower wage than he was earning when injured. At the time of the accident, Thibeaux was earning $23.75 per hour and had been employed by Williams Gas, formerly Texas Gas Pipeline, approximately twenty-four years. Dr. Womack used $60,791 in his calculations for Thibeaux’s actual earnings for 2000 ($56,401 + $4,389.61 his employer said he would have earned that year). He determined that the present-day value of Thibeaux’s lost future earnings was either $953,772 or $1,231,000, based on a work-life expectancy of either 17.51 years or 23.38 years. Dr. Womack further determined Thibeaux’s lost future fringe benefits and per diem: $114,453 and $20,710 for 17.51 years; and $147,720 and $26,730 for 23.38 years. Thus, if Thibeaux never returned to work, the present-day value of his lost future earnings would be either $1,088,935 ($953,772 + $114,453 + $20,710) or $1,405,450 ($1,231,000 + $147,720 + $26,730).

Dr. Womack also determined Thibeaux’s future lost earnings if he returned to work earning $6.25 per hour. If he worked 17.51 years, then the present-day value of his future earnings would be $203,962 and his future lost earnings would total $884,973 ($l,088,935-$203,962). If he worked another 23.38 years, then the present day value of his future earnings would be $263,246 and his future lost earnings would amount to $1,142,204 ($1,405,450-$263,246).

On cross examination, Dr. Womack admitted that the amount he used for Thi-beaux’s actual 2000 wages was incorrect. His earnings in 2000 were actually 17$37,784.53. However, Dr. Womack projected that Thibeaux would have earned $66, 289 for 2000, had he not been injured. He testified that Thibeaux’s highest earnings prior to the accident were $55,576 in 1999, and that his income had risen every year.

Glenn Hebert, a vocational rehabilitation counselor, determined that Thibeaux suffered a loss of earning capacity as a result of the August 4, 2000 accident, based on statements from the physicians, all of whom said that he was capable of performing only light-duty work. Light-duty involves frequent carrying, handling, or lifting of ten pounds, with occasional lifting of up to but not exceeding twenty pounds. Although he found that Thibeaux did have a problem with depression, Hebert stated that it was not debilitating.

Hebert testified that Thibeaux was earning $23.50 per hour at the time of the accident and approximately $58,000 per year. If no retraining was required, Hebert stated that Thibeaux could earn between $5.15 and $8.00 per hour or $11,000 and $16,000 per year as a dispatcher, light truck driver, security guard, warehouse worker, or forklift operator. However, he testified that Thibeaux could earn up to $10.00 per hour if he completed a vocational program in outdoor power equipment repair or basic electronics. Hebert testified that Thibeaux would have greater employment opportunities if he completed a three-month computer course and was then capable of entering data, taking orders, or looking up equipment on computers. However, he felt that the most accurate estimation of Thibeaux’s earning capacity was $7.50 to $8.00 per hour.

Dr. John Grimes, a specialist in rehabilitation counseling, testified that Thibeaux was a good candidate for vocational rehabilitation. First, he felt that | ¿Thibeaux could earn between $80,000 to $35,000 per year if he could still drive a truck. If his back prevented this, then Dr. Grimes agreed with Hebert that Thibeaux could earn between $5.50 and $7.50 per hour. However, he stated that Thibeaux could earn $12.00 per hour after technical training, which could increase to $15.00 per hour in three to five years. Dr. Grimes believed that Thibeaux was a good candidate for technical training since he had a good work history, hobbies consistent with technical training, satisfactory test scores, and a demonstrated history of vocational success.

Thibeaux testified that his work history consisted of manual labor through his employment with Williams Gas Pipeline. Pri- or to the accident, he stated that he restored several old vehicles, which entailed performing body work, minor mechanical repairs, and painting. At the time of the trial, Thibeaux felt that he could perform light-duty work. He further stated that he still had his commercial drivers license.

After reviewing the record, we find that the jury was presented with evidence concerning Thibeaux’s future lost wages/loss of earning capacity. Although the evidence revealed that the present-day value of his future lost earnings was between $949,404 and $1,206,635, if he returned to work earning $6.50 per hour, the jury heard evidence that he was capable of earning up to $12.00 or $15.00 per hour with retraining. Considering that both Dr. Grimes and Hebert considered Thi-beaux capable of being retrained, we find that it was reasonable for the jury to conclude that Thibeaux could earn substantially more than the $6.50 per hour wage used by Dr. Grimes in his calculations. Accordingly, we find no manifest error in the jury’s | ¡¡award of $560,000 in future lost wages/loss of earning capacity. The judgment of the trial court awarding this amount is affirmed; this assignment of error is dismissed as being without merit.

FUTURE MEDICAL EXPENSES

In this assignment of error, Schilling argues that the jury erred in awarding Thibeaux $35,000 in future medical expenses when evidence during the trial only indicated future medical expenses of $1500.

The award of future medical expenses must be supported by medical testimony indicating both their need and probable cost. Holliday v. United Servs. Auto. Ass’n, 569 So.2d 143 (La.App. 1 Cir. 1990). “However, when the need for future medical care has been demonstrated but cost is not susceptible of determination, the court may make a reasonable award.” Id. at 146 (citing Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281 (La.1984), and Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971)).

In this instance, the record reveals that Thibeaux will require future medical care and, thus, will incur future medical expenses. Dr. Friedburg estimated that his future care of Thibeaux will cost $1500. Dr. Blanda testified that Thibeaux’s need for future medical treatment is dependent upon the status of his back pain. Unless Thibeaux’s back heals or becomes asymptomatic, his treatment will continue. The evidence revealed that Dr. Blanda charges $70 per office visit. Dr. Daniel Hodges, a physiatrist, is attempting to manage Thi-' beaux’s back pain. His records as of April 23, 2000, state that he is treating Thibeaux conservatively, with a return appointment scheduled for four months hence. Dr. Blanda indicated that Thibeaux |incould continue treatment with Dr. Hodges indefinitely based on his continuing back pain. Dr. Hodges charged $155 for Thibeaux’s April 23, 2003 office visit. Thibeaux also introduced the records of Farmer’s Sav-More, which revealed medication costs from August 2000 through July 2003, of approximately $5020.

Considering this evidence, we find that Thibeaux, although he has not proven the exact costs of his future medical expenses, has proven that he will incur such costs in the future. After reviewing Ms past medical expenses, we find that the jury reasonably could have found that he would incur future medical expenses of $35,000. Although the amount of future medical care required by him is uncertain, a jury reasonably could have found that his pharmaceutical costs would continue and base its award on this need. Accordingly, we find no error in this award and affirm the trial court’s judgment on this issue.

CONCLUSION

For the foregoing reasons, the judgment of the trial court awarding damages for future lost wages/loss of future earning capacity and future medical expenses is affirmed. The costs of this appeal are assessed to the defendants-appellants, Schilling Distributing Company, Inc., Chuck R. Trotter, and Westport Insurance Company.

AFFIRMED.

      . This figure for work-life expectancy was taken from the Bureau of Labor Statistics.

      . After 23.38 years, Thibeaux would be sixty-seven years old and eligible for full Social Security retirement benefits.


author: JjSCOFIELD, Judge .

text:
    POLAR BEAR ICE CO., INC. v. Ann M. WILLIAMSON, et al.
    No. 04-368.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      William M. Ford, George Carnal Gaien-nie, III, Alexandria, LA, for Plaintiff-Appellant, Polar Bear Ice Co., Inc.
    Bruce Allen Craft, Baton Rouge, LA, for Defendanb-Appellee, Ann M. Williamson and AMW Cold Storage Management, Inc.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD, Judges.
   JjSCOFIELD, Judge .

The Plaintiff, Polar Bear Ice Co., Inc. (Polar Bear) filed this claim for breach of contract, tortious interference with contract and unfair trade practices. The trial court found that Defendant, AMW Cold Storage Management, Inc. (AMW) breached the contract but denied the claim against Ann M. Williamson (Williamson) for tortious interference with the contract. The trial court also denied the claims for unfair trade practices against both AMW and Williamson. For the reasons set forth hereinafter, we affirm.

FACTS

Polar Bear, a Louisiana Corporation domiciled in Alexandria, is in the cold storage business. On March 16, 2000, Polar Bear, under the trade name of Alexandria Ice and Cold Storage, entered into a contract with AMW styled “Lease/Handling Agreement” (the Lease). The Lease recognizes that AMW had anticipated making a bid to the State of Louisiana to provide state-wide cold storage services to the Louisiana Department of Agriculture; that AMW did not have its own cold storage facilities in the Alexandria area; and that in order to meet its obligation to provide storage space to the State, AMW desired to lease such storage space from Polar Bear. The Lease further provided that AMW would pay Polar Bear specified sums on a monthly basis for various categories of storage space.

The Lease was negotiated by Robert A. Moore on behalf of Polar Bear, Mr. Moore having died prior to this suit having been filed. Williamson had negotiated the Lease on behalf of AMW. At all times pertinent hereto, Williamson was the sole 12incorporator, stockholder, director and officer of AMW.

AMW eventually was awarded the statewide storage contract and began paying Polar Bear the specified rental beginning in June of 2000. However, in November 2001, AMW significantly reduced its monthly payments to Polar Bear, presumably because there had been a reduction in the payments AMW was receiving from the state.

A significant fact bearing upon the procedural aspects of this case is that prior to the trial, criminal charges were lodged against Williamson, presumably emanating from the AMW state-wide cold storage contract. The record does not reflect whether these charges were still pending at the time of trial. Nevertheless, Williamson’s Fifth Amendment rights attendant to her criminal charges became a factor in these proceedings.

TRIAL COURT PROCEEDINGS

Polar Bear filed this suit against AMW and Williamson contending that Defendants were individually, jointly and solidar-ily liable to Polar Bear for damages, attorneys fees, interest and costs because of the deficiencies in the rental payments made pursuant to the Lease. AMW is claimed to have breached the Lease. Williamson is alleged to have tortiously induced this breach. Polar Bear further claims that both Defendants violated the Louisiana Unfair Practices Act.

A bench trial resulted in a finding that AMW had breached the Lease, resulting in a judgment being rendered against AMW in the amount of $312,130.05, together with interest and costs. All claims against Williamson were dismissed as were the unfair trade practices claims against AMW.

Judgment was signed on August 13, 2003, and AMW’s motion for a new trial |3was denied. Polar Bear devolutively appealed. No appeal was filed by AMW. ISSUES

The issues in this appeal are Polar Bear’s claims that the trial court erred in not finding that Williamson tortiously interfered with the contract, and in not allowing Polar Bear to offer into evidence certain documentary evidence allegedly supporting the claims against Williamson. Polar Bear also contends that the trial court erred in not granting its unfair trade practices claims against either defendant. DISCUSSION

THE PRINCIPAL CLAIM AGAINST WILLIAMSON

Polar Bear contends that Williamson is liable because she tortiously interfered with the Lease Contract, citing in support of this claim the landmark case of 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989). Polar Bear correctly quotes from 9 to 5 as to the requisite proof necessary to establish a tortious interference with contract claim:

For purposes of analysis, the action against a corporate officer for intentional and unjustified interference with contractual relations may be divided into separate elements: (1) the existence of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate officer’s knowledge of the contract; (3) the officer’s intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome; (4) absence of justification on the part of the officer; (5) causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.

Id. at 234. See also Technical Control Systems, Inc. v. Green, 01-0955 (La.App. 3 Cir. 2/27/02), 809 So.2d 1204.

For one to establish liability for tortious interference with contract, all five of the evidentiary requirements of 9 to 5 must be proven. In this case, we find the evidence lacking in two of the categories, i.e., item three, requiring proof that |¿Williamson intentionally induced or caused AMW to breach the contract, and item four, proof that there was no justification for Williamson’s actions. Given Williamson’s dominant position with AMW, it could arguably be assumed that Williamson intended that the corporation breach the contract. However, there was no direct proof of her intent in this respect. There was no evidence that her intent was contrary to the best interests of the corporation. The clincher is that Polar Bear failed to prove that Williamson had no justification in inducing the lowering of the monthly payments made to Polar Bear. As Justice Dennis stated in 9 to 5:

The officer’s action is justified, and he is entitled to a privilege of immunity, if he acted within the scope of his corporate authority and in the reasonable belief that his action was for the benefit of the corporation.

9 to 5 Fashions, Inc., 538 So.2d at 231.

Williamson did not testify in these proceedings. There was testimony from Herschel Abbott, lawyer who had represented AMW and Williamson. Mr. Abbott testified that the state had reduced rental payments it was making to AMW and because of this, he had advised AMW to reduce its payments to Polar Bear. He further testified that according to his interpretation of the Lease, it permitted such a reduction. In fact, Mr. Abbott wrote a letter to Polar Bear giving notice of the reduced payments by the state and that his interpretation of the Lease was that this would permit a reduction in the payments from AMW to Polar Bear.

Polar Bear disagrees with AMW’s interpretation of the Lease and further argues that the cutting of payments by the state was not the real reason AMW began paying less to Polar Bear. In short, Polar Bear argues that AMW and Williamson were not justified in reducing the payments. Polar Bear complains bitterly that the trial court refused to allow Polar Bear to offer evidence which would prove | ./Williamson's lack of justification in inducing AMW to pay less to Polar Bear. We have carefully viewed the evidence proffered by Polar Bear and have failed to find any that would satisfy Polar Bear’s burden of proof in this regard.

The most significant deficiency in Polar Bear evidence, proffered or otherwise, is its failure to call Williamson as a witness. During pre-trial discovery, the deposition of Williamson had been scheduled, as well as the 1442 deposition of AMW. The procés verbal of this deposition — which was proffered by Polar Bear after its being filed into evidence was denied by the trial judge — indicates that pri- or to the deposition, the parties had agreed that Williamson would not have to testify at this deposition, presumably on the basis of her Fifth Amendment rights attendant to her pending criminal charges. Williamson, therefore did not testify at this deposition, either on her own behalf, or as the corporate representative of AMW. The proffered proees verbal identifies various documents that were produced at the deposition by AMW pursuant to subpoena duces tecum. None of these documents appears to materially bear on Williamson’s intent or justification in causing the reduction of payments to Polar Bear.

Williamson’s deposition was again scheduled to be taken just a few days before the trial, there being no indication in the record what stance Williamson would have taken with reference to her Fifth Amendment rights at that deposition. Nevertheless, shortly before this deposition was to be taken, counsel for Polar Bear cancelled it because of a conflict in his schedule.

At the trial itself, Williamson was present, yet Polar Bear chose not to call her as a witness. Polar Bear could have called Williamson as a witness and posed 1 (¡questions to her regarding her intent and justification (or the lack thereof) pertaining to the lowering of payments to Polar Bear. Even if Williamson were to have refused to answer these questions because of her Fifth Amendment rights, Polar Bear could have at least proceeded to ask Williamson the pertinent questions and then avail itself of the negative inference which the court may draw against a party in a civil case who asserts this privilege and refuses to answer questions. See Boyd v. Boyd, 26,292 (La.App. 2 Cir. 12/7/94), 647 So.2d 414; Miles v. Louisiana Landscape Specialty, Inc., 97-118 (La.App. 5 Cir. 6/30/97), 697 So.2d 348. Inexplicably, Polar Bear chose not to call Williamson as a witness.

Since Williamson was never called upon to answer any questions, never formally invoked her Fifth Amendment rights, no negative inferences could be drawn by the trial court, or by this court. Even considering the evidence that was proffered by Polar Bear, there is no proof in this record that Williamson did not act “within the scope of [her] authority” and no proof that she did not have “the reasonable belief that [her] action was for the benefit of the corporation.” 9 to 5 Fashions, Inc., 538 So.2d at 231. Consequently, there is no merit in Polar Bear’s contention that the trial court erred in not allowing into evidence the proffered documents. Accordingly, we find no error in the trial court’s dismissal of the tortious interference with contract claims against Williamson.

THE UNFAIR TRADE PRACTICES CLAIM

Polar Bear contends that the breach of the Lease by AMW and Williamson “was unfair, deceptive, immoral, unethical, oppressive, and was an unscrupulous act and practice designed and intended to cause substantial injury and damage to Polar Bear” and that this was a violation of the Louisiana Unfair Trade Practices Act, |7La.R.S. 51:1401, et seq. Because some litigants have attempted to take some of the broad language of the Unfair Trade Practices Act out of context and urge its application to routine business misunderstandings and because the act is penal in nature, our courts have carefully avoided applying the act to other than the more egregious circumstances. Indeed, that is the intent and purpose of the act. “The statute is penal in nature and subject to reasonably strict construction.” Levine v. First Nat. Bank of Commerce, 02-1114 (La.App. 5 Cir. 4/29/03), 845 So.2d 1189, 1193; See also Cajun Restaurant and Bar, Inc. v. Maurin-Ogden 1978 Pinhook Plaza, 574 So.2d 536, (La.App. 3 Cir.1991).

We find no evidence in this record sufficient to sustain a claim under the Louisiana Unfair Trade Practices Act. Indeed, given our finding that Polar Bear has failed to prove Williamson’s ill-intent or lack of justification necessary to sustain a claim against her for tortious interference with a contract, it seems axiomatic that the same evidence would not rise to the level necessary to support a claim under the Unfair Trade Practices Act. To the contrary, the much stronger evidence is that Williamson acted under advice of counsel and under the belief that the Lease permitted the reduction of rental payments in the event the state were to lower its payments to AMW.

While we do not disagree with the trial court’s finding that the Lease did not justify or permit the reduction in the rental payments by AMW, an issue that is not before us in this appeal, we cannot conclude that Williamson was not acting in the best interests of AMW in effecting the reductions in the payments to Polar Bear, especially when this was done on advice of counsel.

In sum, we find this case to be one of breach of contract and nothing more.

IsFor the foregoing reasons, we affirm the decision of the trial court and assess the costs of this appeal to Polar Bear.

AFFIRMED.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . La.Code Civ.P. art. 1442 sets forth the procedure for taking depositions of corporations and other entities.