author: I «SOL GOTHARD, Judge.

text:
    Johnny RATLIFF v. BRICE BUILDING COMPANY and Larry McCorkle.
    No. 03-CA-624.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Lloyd N. Frischhertz, Diane M. Sweezer, Frischhertz and Associates, LLC, New Orleans, LA, for Claimant/Appellant (Johnny Ratliff).
    Eric A. Bopp, Walter R. Woodruff, Edward S. Bopp — A Law Corporation, Arabi, LA, for Defendant/Appellee (Larry McCorkle).
    Thomas J. Eppling, Lance E. Harwell, Staines & Eppling, Metairie, LA, for Defendant/Appellee (Brice Bldg. Company).
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   I «SOL GOTHARD, Judge.

Plaintiff, Johnny Ratliff, appeals from the dismissal of his disputed claim for workers’ compensation filed against Brice Building Company (“Brice”) and Larry McCorkle d/b/a McCorkle Steel Reinforcing (“McCorkle”).

Claimant filed a disputed claim for compensation on November 11, 2000, alleging that he was injured in a work related accident on July 24, 2000, while employed by McCorkle. He also filed a claim against Brice, the general contractor, alleging that it was his statutory employer. Both defendants plead affirmative defenses, including the defense of intoxication.

The matter was heard by the workers’ compensation court on February 10, 2003. Prior to trial, the court granted Brice’s motion to have the plaintiffs witnesses and exhibits stricken on the basis that plaintiff had not filed a pretrial statement. The court further granted McCorkle’s motion to exclude the deposition of Dr. Bourgeois, on the basis that counsel for McCorkle did not receive notice of that deposition.

Thereafter, the court rendered judgment in favor of defendants, dismissing Ratliffs claim with prejudice.

[ ?FACTS

Ratliff alleged that he was working as a laborer with McCorkle, having been rehired in June of 2000. On July 24, 2000, he was sent to the Ascension of Our Lord Church in LaPlace, to work on a building project by Brice. He and a co-worker were carrying two 40 foot iron rods. The co-worker tripped and dropped his end, causing the bars to fall on Ratliffs right shoulder. He tripped and fell to the ground. Ratliff went to Pendleton Memorial Hospital, where he was diagnosed with a fractured acromion. McCorkle paid wages in lieu of workers’ compensation from the date of the accident until September 8, 2000. On November 17, 2000, Ratliff filed a disputed claim for compensation.

Ratliff went to work for Mickey Bennett, doing business as Foundation Builders, from November 22, 2000 until January 10, 2001. Mr. Bennett stated that he hired Ratliff as a laborer, and that his duties included digging ditches by shovels and picks, and cleanup work. Mr. Ratliff would also do some finishing work, which included bending and kneeling. Mr. Bennett stated that Ratliff appeared physically capable of doing the work, and did not complain until that last day of his employment, when he was moving slow, and did not want to keep up the pace. Mr. Bennett further stated that Ratliff did not tell him of any prior injury. Bennett’s records indicated that Ratliff “was fired because he wasn’t dependable and lack of interest in his work.” Finally, Mr. Bennett stated that three times after Ratliff stopped working for him, Ratliff came back and asked for employment. Ratliff never indicated that he could not do certain types of work.

At trial, Ratliff testified that he worked for Bennett after McCorkle stopped paying him, and that he performed finishing work. He stated that he did tell Mr. Bennett about his injuries, and that Bennett only required him to use a finishing trowel because of the injury. Ratliff stated that he was terminated because Bennett did not have the work for him.

|4On March 5, 2001, Ratliff filed a supplemental disputed claim for compensation. From June 2001 until October 2002, Brice paid claimant compensation benefits.

On June 13, 2001, Dr. Gordon Nutik, an orthopedic surgeon, conducted a physical examination of Mr. Ratliff, and he also reviewed the reports from Ratliffs treating physician. In his report, Dr. Nutik stated that Ratliff complained of pains in his neck, right shoulder and lower back. His responses to examination were inconsistent, as he “would restrict range of motion in certain positions and allow more normal ranges of motion in other positions.” Dr. Nutik noted that there were no complaints of lower back pains in the emergency room records, or the records of the treating physician, and therefore it was questionable that the lower back pains were caused by the accident. He stated at the time of the examination, he did not see any evidence of a fracture of the right acromion, and therefore if there had been one it was healed. He further stated that there were no objective clinical findings to indicate evidence of a disability of the neck, right shoulder or lower back. Dr. Nutik opined that Mr. Ratliff could perform, at the least, a light level of work. He further stated that, “It is my initial opinion that he should be able to be functionally capable of heavier work however it is difficult to assess him because of the inconsistencies at the time of this examination.”

ANALYSIS

In this appeal, Ratliff alleges that the workers’ compensation judge erred in finding that his exhibits were inadmissible due to his failure to file a pre-trial statement. He further alleges that the judge erred in ruling that he failed to meet his burden of proof that a work-related accident occurred or that he sustained an injury. Finally, he alleges that the trial court erred in not finding that he was temporarily and totally disabled.

| .^Claimant alleges that the trial court erred in finding his evidence inadmissible for his failure to file a pre-trial statement.

La. Workers’ Compensation Rules and Regulations Sections 6003-6007 require the parties to submit a pre-trial statement. The workers’ compensation judge may refuse to accept the introduction of testimony of evidence that has not been listed in the pre-trial statement. “Because of the need to insure an orderly disposition of cases, the workers’ compensation judge is given broad discretion to determine whether or not to modify a pretrial order listing witnesses. Absent an abuse of discretion, the decision of the trier of fact will be upheld.” Wright v. Wendy’s International, Inc., 2001 2758 (La.App. 1 Cir. 12/20/02), 836 So.2d 325, 327.

In this case, the record shows that on November 20, 2001, Brice filed its statement of evidence. Brice filed its pre-trial statement on January 30, 2002, and amended it on April 9, 2002, April 15, 2002, and July 2, 2002. On February 11, 2002, Larry MeCorkle filed a pre-trial statement in proper person on behalf of MeCorkle. On October 21, 2002, claimant filed a motion for continuance on the ground that his counsel had left the firm representing him, causing the firm to assign new counsel to his claim. Trial was rescheduled for and conducted on February 10, 2003.

In refusing to allow claimant’s evidence, the workers’ compensation judge noted that:

As evidenced by the record, through examination indicates that this Court issued pretrial orders on at least three occasions, January 22nd, February the 19th, and March 5th, all of 2002, instructing all parties and all counsel of record when discovery would be terminated, when exhibits should be exchanged, making provisions for amendments to the pretrial statement.
And in order to be consistent with prior rulings under very similar circumstances, the Court cannot accept the offerings as made and relies on the rule 6003 through 6007 and also ... Wright v. Wendy’s
|fi... the Court is not in the business of trying to protect any of the parties by making this ruling except the only thing that the Court is trying to protect is the integrity of the proceedings.

We cannot find that the workers’ compensation court abused its discretion in so ruling. Accordingly, we find this allegation of error to be without merit.

Claimant next alleges that the trial court erred in finding that he did not prove that an accident occurred and that he was not entitled to benefits. He further alleges that the trial court erred in not finding that he was entitled to temporary total disability.

The appellate court’s review of the workers’ compensation judge’s findings of fact is governed by the manifest error or clearly wrong standard and will not be disturbed absent such a finding. 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 factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice of them can never bye manifestly erroneous or clearly wrong. Thus, if the factfinder’s findings are reasonable in light of the record, the court of appeal may not reverse or modify the judgment.

Barbarin v. TLC Home Health, 02-1054 (La.App. 5 Cir. 4/29/03), 845 So.2d 1199, 1202.

The claimant in a workers’ compensation case has the burden of proving a work-related accident and a resulting injury by a preponderance of the evidence. The claimant’s testimony alone may be sufficient to satisfy this burden of proof, as long as there is no other evidence that discredits or casts serious doubt upon his version of the incident, and his testimony is corroborated by circumstances following the alleged accident. Head v. Winn-Dixie, Inc., 01-467 (La.App. 5 Cir. 10/17/01), 800 So.2d 992, 995. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Corroboration may also be provided by medical evidence. Shaw v. Arc of St. Charles, 00-1193 (La.App. 5 Cir. 11/28/00), 776 So.2d 542, 545.

|7We note that in this case, the only evidence of the accident was the testimony of claimant. Furthermore, there was evidence that claimant was able to work, and was employed after the accident occurred. Thus, we cannot say that the workers’ compensation judge was manifestly erroneous in his conclusions. Nevertheless, McCorkle paid wages, and Brice paid compensation benefits to claimant. Claimant does not allege in this appeal that his medical bills were unpaid. Claimant’s issues in this appeal are that Brice erred in ceasing to pay benefits, and his contention that he is entitled to temporary and total disability.

A claimant seeking temporary or permanent disability benefits must offer clear and convincing evidence that he is unable to engage in any type of employment. La. R.S. 23:1221(1). In order to meet this clear and convincing standard, the claimant must introduce objective medical evidence. Greis v. Lake Charles Memorial Hosp., 97-1258 (La.App. 3 Cir. 3/6/98), 709 So.2d 986, writ denied, 98-0937 and 98-0938 (La.5/19/98), 719 So.2d 467. The trial court must weigh all the evidence, medical and lay, in order to determine if the plaintiff has met his burden. This factual finding should be given great weight and should not be overturned absent manifest error. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277, 280 (La.1993).

At trial, Mr. Ratliff testified that he could not return to his job with McCorkle. However, Mr. Ratliff offered no testimony to show that he was unable to perform any work. Further, Dr. Nu-tik’s report opined that claimant could perform, at a minimum, light duty work. Mr. Ratliff did not present any evidence to show that there was no light duty work available to him. We therefore find that Mr. Ratliff did not meet his burden of proving, by clear and convincing evidence, that he was unable to engage in any type of employment as a result of the accident.

Finally, claimant argues that he is, at the very least, entitled to supplemental earnings benefits. Again the claimant offered no evidence to show that he could [Rnot obtain employment equal to ninety percent of his wages at the time of his injury.

For the above discussed reasons, the decision of the workers’ compensation judge dismissing appellant’s claim is affirmed. All costs are assessed against appellant.

AFFIRMED.


source: Caselaw Access Project

author: j .SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Sheree JONES v. Sean PHILLIPS and State Farm Mutual Automobile Insurance Company.
    No. 03-CA-636.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      David A. Strauss, Christian A. Garbett, King, LeBlanc and Bland, New Orleans, LA, for defendants-appellants, Sean Phillips and State Farm Mutual Automobile Insurance Company.
    Elizabeth M. Gaudin, Hilary G. Gaudin, Gaudin & Gaudin, Gretna, LA, for plaintiff-appellee, Sheree Jones.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   j .SUSAN M. CHEHARDY, Judge.

This is an auto accident case in which the trial court awarded the plaintiff $20,000.00, but found the defendant driver eighty percent at fault and the plaintiff driver twenty percent at fault, resulting in a net award of $16,000.00 to the plaintiff. The defendants appeal, seeking reapportionment of fault and/or reduction of the damages awarded. We affirm.

The suit arose out of a March 26, 1999 collision between vehicles driven by Sheree Jones and Sean Phillips, which occurred in the parking lot of a Marrero shopping center. Jones filed suit in Second Parish Court for the Parish of Jefferson against Phillips and his insurer, State Farm Mutual Automobile Insurance Company. After trial the court took the matter under advisement for approximately two months, then rendered judgment in favor of the plaintiff. The court found the defendant 80 percent at fault and the plaintiff 20 percent at fault, and awarded the plaintiff $18,794.20. The court set out the following calculations:

1. Pain and Suffering $20,000.00 (8 month injury x $2600.00)
2. Medicals 2,710.00
3. Rental vehicle 226.10
4. Repair 556.65
$23,492.75
Eighty (80%) Percent $18,794.20
Twenty (20%) Percent $ 4,698.55

| ^Defendants filed a motion for new trial on the grounds that the court erred by awarding damages in excess of the parish court’s $20,000.00 jurisdictional limitation (e.g., the total award of $23,492.75 before deduction for comparative fault), that plaintiff did not establish her burden of proving medical causation, and that the awards for both general and medical damages were excessive.

The court granted the new trial motion for the limited purpose of correcting the damages awarded. The court reduced the overall damages awarded to $20,000.00, without itemizing the elements, and reiterated the prior comparative fault determination of 80 percent to the defendant, 20 percent to the plaintiff. After deduction for the 20 percent comparative fault previously attributed to the plaintiff, the final award was $16,000.00. Defendants appeal.

On appeal defendants contend the trial court was clearly wrong in finding defendant Phillips 80 percent at fault and in finding that plaintiff suffered an aggravation of a pre-existing injury. Defendants assert further that the trial court clearly erred in awarding general damages for eight months of treatment when plaintiff was discharged after five months and that the award of $2,500 per month is excessive. Finally, defendants argue the court clearly erred in the award of plaintiffs medical expenses because the plaintiff failed to relate the medical expenses to the March 1999 accident, the clinic double-billed the patient, and the plaintiffs treatment after August 1999 was not necessary.

The only witnesses at the trial were the defendant driver and the plaintiff.

Defendant testified the accident occurred in a parking lot at Lapalco and Barataría Boulevards. He was coming from work in his Chevrolet Blazer and needed to pick up something from the Rite Aid store in the shopping center. He was traveling no more than five to ten miles per hour in the parking lot, parallel to | ¿Lapalco, when he saw plaintiffs Ford Escort approaching from his right near an exit to Lapalco. He stopped, but the driver’s side of plaintiffs vehicle struck the passenger side of his vehicle. He was unsure, but thought plaintiff may have tried to slow before her car struck his.

He denied that he was driving through the parking lot to avoid the traffic on Lapalco Boulevard and said there was nothing he could have done to avoid the accident. There were no traffic signs in the parking lot indicating he had any obligation to yield or stop.

Phillips said the damage to his car cost about $98.00 to repair. He said plaintiffs car had a broken headlight and there was damage to the hood.

After the accident he asked plaintiff if she was okay and she told him yes. He saw nothing to indicate that she was injured, either in her appearance or her behavior, and she did not indicate she needed or wanted medical care. He said the plaintiff called the police to investigate. Defendant did not receive a citation.

Sheree Jones testified she was employed by Papa John’s restaurant in the shopping center at the time of the accident. The collision occurred as she was coming out to deliver a pizza and was about to go onto Lapalco. Before she could get to Lapalco, the other car struck from her left side. She was in a main lane of travel leading to the exit. She said there is a traffic light on Lapalco near that exit and a light that controls traffic coming out of the parking lot at that exit. The light controls the left-hand side of Lapalco and also controls the motorists turning left coming from the other side.

Plaintiff said she first noticed defendant’s car right before the accident, when it was approximately a foot away. She said there was nothing she could have done to avoid this accident. Accordingly to the plaintiff, the police were called by the | sdefendant’s mother, whom the defendant telephoned after the accident. Plaintiff said she heard defendant tell the piolice officer that he was trying to avoid traffic by going through the parking lot.

Plaintiff testified her insurer, Allstate, paid for repair of her vehicle, less her deductible of $200.00.

Plaintiff said she was wearing the seat belt, but her body “moved around” in the car when the accident occurred. She said her neck and back were injured. She admitted she had injured her neck and back in a motor vehicle accident in January 1999 (two months before this accident) and that she was still being treated for those injuries when this accident occurred. She stated she had been feeling better, but this accident aggravated her previous injuries by making them hurt more.

Plaintiff was treated for the injuries from this accident at Lafayette .Street Medical Center, where she was still undergoing treatment for her pre-existing injuries. She said she was examined on April 9, 1999 and received treatment on the “heat bed,” the “cold bed” and the “vibrating bed,” as well as hot and cold compresses and chiropractic treatment. She went there three times a week for about eight months. She said she still has problems with her lower back, despite having been discharged from treatment.

Plaintiff admitted to having complaints of lower back pain approximately a year before the January 1999 accident for which she was treated at West Care Medical Center and received a prescription for Flexoril.

On cross examination plaintiff testified that after she reported this accident to her employer, Papa John’s, she was instructed to go to driving school. She admitted that she did not make a worker’s compensation claim regarding this accident. She admitted she was familiar with the parking lot, knew there was a lane of traffic | Bcoming from her left, and knew there was no sign or other marking that would required traffic from that direction to stop or yield. She said, “I figured I had the right of way.” She admitted that she did not yield when she approached the intersection of the traffic lanes in the parking lot.

Plaintiff also admitted that she went to her attorney’s office that day before she went to the doctor. She admitted that her counsel in this case also was representing her regarding the January 1999 accident and that she had recovered money from that accident. She admitted that she was in an accident for which she was found at fault before the January 1999 accident, but for which she made no claim.

She admitted she had a history of neck and back pain prior to the January 1999 accident and that she has rheumatoid arthritis, which causes pain in her back, neck, fingers, legs and toes. She admitted seeking treatment for back pain as far back as May 1998. She said that at the time of the January 1999 accident she was not having pain, but admitted that in January 1999 she stated on her medical history form she was taking painkillers. She testified she did not know that the doctors at Lafayette St. Medical Center attributed all of her medical treatment there to the January 1999 accident.

On redirect plaintiff said she had not made a worker’s compensation claim because she was afraid it might affect her employment. She also clarified that she had not been diagnosed with rheumatoid arthritis until February 2000, after both the automobile accidents. She stated she had been having back pain as far back as 1998.

Review of the medical records show the reports of the Lafayette St. Medical Center all reference the findings as resulting from the accident that occurred in January 1999. The diagnosis was neck sprain/ strain (whiplash injury); lumbar Rsprain/strain; contused left knee. She was treated with joint mobilization, myofa-cial release, trigger point therapy, hot/cold packs, mechanical traction and myofaeial electrical stimulation three times a week and was discharged from care on August 27,1999.

Dr. J.O. Trice of the Lafayette St. Medical Center admitted there was nothing in the medical record from either a medical doctor or a chiropractor that specifically says any of the treatment plaintiff received at the clinic related to the March 1999 accident. He also admitted that the Lafayette St. Medical Center had assigned a second chart number to plaintiff when she came in after the March 1999 accident and that many of her therapy sessions for the remainder of her treatment period were billed to both charts — the chart assigned from her initial visit following the January 1999 accident and the chart assigned following the March 1999 accident. Defense counsel referred to this as “double billing” and Dr. Trice was unable to explain why the practice was employed at the medical center.

Dr. Trice, reviewing the patient welcome sheet that plaintiff filled out on April 9, 1999, noted that plaintiff indicated she was experiencing pain in two areas of which she had not complained in January 1999: the chest and her left arm. Dr. Trice admitted he had not examine plaintiff following the second accident. Her therapeutic treatments were administered by employees of the medical center or by Dr. Critchfield, the chiropractor associated with the medical center.

Nevertheless, Dr. Trice stated that based on his examination of the chart, he believed the second accident would have exacerbated plaintiffs symptoms. He referred specifically to the welcome sheet plaintiff completed on April 9, 1999, in which she stated, “I was got [sic] better from another accident 1-12-99 when I got into this accident March 99 ... hurting worse now than before ... neck, back, left arm.”

| sDr. Trice admitted that accepted medical practice is to render an opinion about the cause of a patient’s problem based not only on the patient’s history but also on physical examination of the patient and he admitted that he had not re-examined the plaintiff since January 1999.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as ' reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

If the trial court’s findings are reasonable in light of the record viewed in its entirety, the appellate court may not reverse even though convinced that had it been sitting as the trier of fact,, it,would have weighed the evidence differently. Id. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844.

The manifest error-clearly wrong standard demands great deference to the trier of fact’s findings, for only the fact-finder can be aware of the variations in demeanor and tone- of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, 549 So.2d at 844-845.

In this case, the testimony of each party directly contradicts the testimony of the other party in important respects. For example, defendant testified he stopped to try to avoid hitting plaintiffs car; plaintiff testified that was not so. Plaintiff said she heard defendant state he was driving through the parking lot to avoid the traffic on Lapalco Boulevard; defendant denied that he said that or that he was in the | ^parking lot for that reason. Hence, credibility determination was the essence of the trial judge’s decision.

It is true, as defendant-appellant asserts, that even a favored driver must keep a lookout to try to avoid an accident. Nevertheless, the trial judge was within his discretion to find that defendant did not see appellee and that he did not stop to try to avoid the collision. Every negligence case must be decided on its own facts and circumstances. Roberts v. Benoit, 605 So.2d 1032, 1055 (La.1991) (on rehearing). On the evidence before us we are unable to say the trial judge was clearly wrong in his evaluation of the conflicting testimony.

Similarly, with regard to appellant’s assertion that the trial court erred in finding that this accident aggravated plaintiffs injury from an earlier accident, we find no manifest error. The defendant must take the victim as he finds her and he is responsible for all natural and probable consequences of his tortious conduct. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). When the defendant’s tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation. 625 So.2d at 1006.

Plaintiff testified at trial that her injury from the January accident had been aggravated by the March accident and that she had been feeling better when the second accident occurred, but the accident made it hurt more. Further, the Lafayette St. clinic records show she complained that the second accident exacerbated her symptoms and caused symptoms she had not reported after the first accident — specifically, sleep loss, irritability, back stiffness and/or pain in her arm and shoulder. In addition, plaintiff was unable to work immediately following the second accident, unlike the first accident, and after the second accident she complained that almost all daily activities had become painful. Further, plaintiff | incontinued to seek treatment at the clinic through November 1999 and she testified at trial that she still suffered with the injuries from this accident.

Although Dr. Trice admitted he did not examine plaintiff following the second accident, he testified that the second accident would have exacerbated her symptoms. It was within the trial judge’s discretion to choose how much weight to give to the medical testimony and documentary evidence. We cannot say the court was manifestly erroneous in determining that plaintiffs injuries were aggravated and/or increased by the second accident.

With regard to the general damages award, appellant contends the trial court awarded the plaintiff $2,500 per month for eight months for a soft-tissue injury and that such an award was an abuse of discretion. We note, however, that the judgment on appeal does not itemize the damages, but only gives a single award. The original judgment had listed amounts for general and special damages, but we cannot be certain that the second judgment was intended to have the same breakdown. The trial judge stated he was granting the motion for new trial only to correct the prior award because it exceeded the jurisdictional limits.

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
:¡i * *
The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact.... Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion....
hJTjhe discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages.... It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. [Citations omitted.]

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-1261 (La.1993).

When a judgment is for a lump sum presumed to award all items of damages, an appellant’s burden of proving an abuse of discretion is more difficult because the intent to award a specific amount for a particular item is not readily ascertainable. Abadie v. Metropolitan Life Ins. Co., 00-352, p. 20 (La.App. 5 Cir. 4/11/01), 804 So.2d 11, 24. Considering these principles, we are unable to find the trial judge committed a clear abuse of his great discretion.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.


author: | .MARION F. EDWARDS, Judge.

text:
    Joseph C. PHILLIPS Sr. & Pauline Phillips o/b/o Joseph C. Phillips, Jr. v. JOSEPH MANAGEMENT SERVICES, INC., and JP & Sons, Inc.
    No. 03-CA-715.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Bertrand M. Cass, Jr., William K. Ter-rill, New Orleans, LA, for Appellants.
    Eric A. Holden, Thomas E. Gottsegen, New Orleans, LA, for Appellees.

      Panel composed of Judges EDWARD A. DUFRESNE, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | .MARION F. EDWARDS, Judge.

In this workers’ compensation suit, the employers appeal the judgment finding a deceased worker’s parents eligible for funeral expenses and benefits under the Louisiana Workers’ Compensation Act. For the following reasons, we amend the workers’ compensation judge’s ruling and affirm as amended.

FACTS AND PROCEDURAL HISTORY

Joseph Phillips, Jr. (“Phillips, Jr.”) was killed when he fell from a tow boat, the “Ms. Pauline,” and drowned in Barataría Channel in Jefferson Parish on October 7, 2002. At the time of his death, Joseph Phillips Jr. was part owner of, and employed by, J.P. & Sons, Inc., a contracting business located in Jefferson Parish. Phillips, Jr. was engaged in the course and scope of his employment with J.P. & Sons, Inc. at the time of his death.

Joseph and Pauline Phillips (“the Phillips”), the parents of Joseph Phillips, Jr., sought funeral expenses and benefits under the Louisiana | ..Workers’ Compensation Act from them workers’ compensation carrier, Gray Insurance Company. Gray denied coverage on the basis that it felt the action was more properly covered by either the Longshore and Harbor Worker’s Compensation Act (“LWHCA”), or the Jones Act.

The Phillips thereafter filed a Disputed Claim with the Office of Worker’s Compensation against appellants, Joseph Management Services, Inc and J.P. & Sons, (“Employers”). Employers filed a peremptory exception of lack of subject matter jurisdiction, which was denied on March 18, 2008.

Trial on the matter began on April 14, 2003. At the conclusion of the trial, the worker’s compensation Hearing Officer ruled in favor of the Phillips, awarding $75,000 each, as well as funeral expenses.

Appellants timely filed the present appeal, and the Phillips, in their answer to the appeal, further petitioned this court to award attorney’s fees, penalties, the cost of the proceedings, and legal interest.

LAW AND ARGUMENT

In their first assignment of error, Phillips, Jr.’s former Employers assert that the trial court erred in finding LWCA jurisdiction and awarding benefits, arguing that the maritime quality of Philips Jr.’s activities should compel a finding that Phillips Jr. was covered by either the LHWCA or Jones Act, which forecloses LWCA jurisdiction and an award of LWCA benefits.

LSA-R.S. 23:1035.2 states:

No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer’s Liability Act, the Longshoremen’s and Harbor Worker’s Compensation Act, or any of its extensions, or the Jones Act.

|4We first consider whether Phillips, Jr.’s job duties with his Employers were of such a nature that an injury sustained in the course of performing these duties would have placed him within the jurisdiction of the LHWCA or the Jones Act.

At trial, the following evidence was adduced regarding Phillips, Jr.’s daily work duties.

Gerald Spohrer, Executive Director of the West Jefferson Levee District, testified that he initially worked with Phillips, Jr. in the process of renewing levee district permits that had been issued to J.P. & Sons, and subsequently worked with him on various levee projects, all of which were land based. Spohrer has the impression that Phillips, Jr., “ran” J.P. & Sons, because he saw Phillips, Jr. “in the field,” in a supervisory capacity, managing crews and equipment.

Max Mega, Vice President of Audit for the Gray Insurance Company testified that Gray had worker’s compensation insurance on J.P. & Sons for a three year policy. An audit was conducted of J.P. & Sons on January 21-23, 2003 in regard to this case, to confirm that there had not been a mis-classification of employees in the prior 12 months, from September 1, 2001 through September 1, 2002. Mega explained that employees would fall into one of five classes: salesman, clerical, land, USL & H, and maritime class. Mega testified that as a result of the audit, in particular information provided to him by Joe Becker from J.P. & Sons, it was determined that one-third of Phillips Jr.’s pay would be classified as sales related, and two-thirds of his pay would be classified as maritime.

On cross examination, Mega said that he did not know if Becker was authorized by J.P. & Sons to agree to audit figures or reclassification of officers salaries by J.P. & Sons, and did not know if the information | .-¡provided to him by Becker to conduct the audit was accurate. Mega stated that on previous audits, Phillips Jr., salary had been classified completely as salesman related. Mega stipulated that the evidence he had with respect to the work of Phillips Jr. and the reclassification was the fact that Phillips Jr. died after falling off of a barge.

Pauline Phillips, Phillips, Jr.’s mother, and co-founder of J.P. & Sons, testified that Phillips Jr. spent most of his time in the field doing construction work, and operated boats like the “Ms. Pauline,” but “not on a steady basis.” Referring to her deposition, she recalled that Phillips, Jr. would use the boat, because it was the only way that one could reach the barges and dredges that were out in the river. She said that Philips, Jr.’s duties in the company were related to construction. Pauline Phillips stated that she never authorized anyone in her company to reclassify Philips, Jr., as a maritime employee.

Craig Breaux, a J.P. & Sons employee in the dredging department, had been with the company for approximately one year at the time of trial. Breaux stated that Phillips, Jr.’s title with the company was President. Breaux stated that Danny Anderson is normally the captain of the dredge and the “Ms. Pauline” when they’re performing routine duties, and that Phillips, Jr. was not a regular member of the crew of the dredge or the “Ms. Pauline.” Breaux said that he had never seen Phillips, Jr. on the dredge.

David Phillips, Phillips, Jr.’s brother, testified that he was one-third owner in the business, in charge of the construction department at the time of Phillips, Jr.’s death. David Phillips said that Phillips, Jr. duties for J.P. & Sons were mainly to run the “sand jobs,” consisting of piling sand that goes under the foundation of a house, as well of all of the “big heavy dirt jobs,” for use in the construction of levees. Both of these duties were strictly land | abased operations. David Phillips said that Phillips, Jr. was the supervisor of these duties, and ran the dirt jobs for approximately the last 1 and a-half years of his life. Phillips, Jr. was also responsible for the entertainment of clients.

Danny Anderson, supervisor of the dredge for J.P. & Sons testified that he had been with J.P. & Sons for four years at the time of trial. Shortly after the accident, Anderson told investigators that Phillips, Jr. worked about 20% of time on the “Ms. Pauline” but has no way of knowing if that number is accurate or not. At trial, Anderson specifically refuted the percentage that he told investigators. Anderson said that he recalled three or four times since 1998 that Phillips, Jr. had helped with a dredging operation, and that he saw Phillips, Jr. operate the “Ms. Pauline” on three occasions over four years.

Marion Phillips, Phillips, Jr.’s brother who was active with the dredging department, testified that he called upon Phillips, Jr. for help on an as needed basis, and that Phillips, Jr.’s support was limited to helping him move the anchors. Phillips, Jr. was not always there to help out, and when he did help it was for only short periods of time. Marion Phillips estimated that Phillips, Jr. assisted him approximately two times out of six years that J.P. & Sons had been running the dredge, and that Phillips, Jr. had never been assigned to the dredge the whole time J.P. & Sons owned it.

Marion Phillips further testified that Phillips, Jr. did paperwork, checked invoices, went over bills, and checked on bid process, with nearly 100% of his time spent working on land based construction jobs or entertaining clients. Marion Phillips clarified that less than 1% of Phillips, Jr.’s time would have been spent assisting with anchoring.

17In order to receive benefits under the LHWCA, a worker must fulfill both a status test and a situs test. Under the status test, the worker must be engaged in “maritime employment.” Under the situs test, the worker must suffer injury “upon the navigable waters of the United States.” In this case, there is no dispute that Phillips, Jr. died upon navigable waters, thereby fulfilling the “situs” requirement of the LHWCA.

In Bienvenu v. Texaco, Inc., the court elaborated on what type of worker may meet the status and situs requirements, thereby becoming eligible for LHWCA benefits:

We therefore hold that a worker injured in the course of his employment on navigable waters is engaged in maritime employment and meets the status test only if his presence on the water at the time of injury was neither transient or fortuitous. The presence, however, of a worker injured on the water and who performs a “not insubstantial” amount of his work on navigable waters is neither transient nor fortuitous. Though we decline to set today the exact amount of work performance on navigable waters sufficient to trigger LHWCA coverage, instead leaving that task to the case-by-case development for which the common law is so well-suited.

To be eligible for relief under the Jones Act, one must first meet fit within the parameters of a “seaman status.” As explained by the court in Doucet v. Computalog Wireline Services, Inc., :

The essential requirements for seaman status are twofold. First ... an employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission....
“Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. (515 U.S., at 368,115 S.Ct., at 2179).

The determination of seaman status is inherently fact intensive, and each case must be decided under the facts presented therein. In 1997, the |sUnited States Supreme Court in Harbor Tug and Barge Co. v. Papai elaborated on the “substantial connection” requirement:

For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee’s connection to the vessel must concentrate on whether the employee’s duties take him to sea. This will give substance to the inquiry both as to the duration and nature of the employee’s connection to the vessel and be helpful in distinguishing land-based from sea-based employees.

In Buford v. Cardinal Services, Inc., the court established a guideline about what length of service could serve as a determining factor in deciding seaman status:

A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.

In the present case, as detailed above, the trial court was presented with testimony from several witnesses that an overwhelming portion of Phillips, Jr.’s daily job duties with J.P. & Sons, Inc., consisted of performing land-based tasks. Additionally there was testimony from a number of witnesses who were actively engaged in the maritime arm of J.P. & Sons, Inc.’s business, that Phillips, Jr. had only participated very few times with this type of activity to their knowledge. While the court did not make a specific finding of what percentage of time Phillips, Jr. spent involved with maritime activities, the trial court did reject Employer’s assertions in total, presumably finding that Phillips, Jr. did not fulfill the “status” test of the | sLHWCA, nor the “substantial connection requirement” to qualify for seaman status and relief under the Jones Act.

The manifest error standard of review applies to factual findings in a workers’ compensation case. 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 factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice of them can never be manifestly erroneous or clearly wrong. Thus, if the factfinder’s findings are reasonable in light of the record, the court of appeal may not reverse or modify the judgment.

Based upon our review of the record and the specific facts of this case, we cannot say that the trial court was manifestly erroneous in finding that benefits were properly awarded to the Phillips under the Louisiana Workers’ Compensation Act.

In their second assignment of error, appellants assert that the trial court erred in excluding the testimony of Joseph Becker, concerning information allegedly provided by Phillips, Jr. related to his maritime activity.

At trial, Joseph Becker, a contract accountant who had been hired by J.P. & Sons to install new accounting software, testified. The Phillips objected to a portion of Becker’s testimony related to statements that Phillips Jr. had allegedly made to him regarding the nature of his work with J.P. & Sons, arguing that the statements at issue were hearsay and therefore were properly excluded under the Louisiana Code of Evidence. The Hearing | TnOfficer ruled in the Phillips favor, and required Employers to proffer the disputed portion of Becker’s testimony.

In determining whether a trial court has committed manifest error by the refusal or admission of certain testimony, we are bound by the edict that, “[T]he trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion.”

Hearsay is testimony in court or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein and thus resting for its value upon the credibility of the out-of-court asserter. The central concern in the exclusion of hearsay evidence is lack of reliability because the declarant is not present, the statement is not made under oath and it is not subject to cross-examination. La.R.S. 15:434 provides: “Hearsay evidence is inadmissible, except as otherwise provided in this Code.”

At the outset, appellants, citing LSA-C.E.'Art. 1101(B)(1), argue that the exclusionary rules in the Code of Evidence are less stringent in Worker’s Compensation cases, and therefore the Hearing Officer should have not excluded the statements. Appellants then rely on two Code of Evidence provisions that they claim apply to the statements allegedly made to Becker by Phillips, Jr.

Appellants argue that Phillips Jr.’s alleged statements to Becker should have been allowed under the business record exception of La. C.E. Art. 803(6), which excludes from the hearsay rule:

| n(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. [Emphasis added].

The “business record” at issue here, the audit itself which was reportedly generated in part from Phillips, Jr.’s alleged statements to Becker, was introduced into evidence without objection. In the portion of Becker’s testimony that was not proffered, Becker testified that he had spoken with Phillips, Jr. about his duties with J.P. & Sons, and that based upon those conversations, Becker felt that Phillips, Jr.’s classification within the company needed to be changed for worker’s compensation purposes.

The court was further presented with evidence, however, that the audit in which the alleged statements by Phillips, Jr. were made was not ordered until after Phillips, Jr.’s death. The court also heard Becker’s own admission that he had been hired for the sole purpose of installing a new bookkeeping and accounting system, not to be the company auditor. Accordingly, we find no error in the trial court’s holding that the alleged information provided to Becker by Phillips, Jr., was not provided to Becker in a capacity for which |12he was routinely acting for the business, and that therefore the business exception was inapplicable.

We further find no merit to Employer’s assertion that Phillips, Jr.’s alleged statements were admissible under LSA-C.E. Art. 801(D)(3)(e), and see no abuse of discretion by the trial court in excluding the alleged statements as hearsay.

On appeal, the Phillips assert that the court erred in failing to award them costs, including attorney’s fees, witness fees, and deposition expenses.

LSA-R.S. 23:1310.9 provides:

If the workers’ compensation judge before which any proceedings for compensation or concerning an award of compensation have been brought, under the Workers’ Compensation Act, determines that such proceedings have not been brought on a reasonable ground, or that denial of benefits has not been based on a reasonable ground, the workers’ compensation judge shall assess the total cost of the proceedings to the party who has brought them or the party who has unreasonably denied payment of benefits.

Because the workers’ compensation judge did not make a finding that the present compensation proceeding has not been brought on a reasonable ground or that denial of benefits has not been based on a reasonable ground, however, LSA-R.S. 23:1310.9 is inapplicable.

LSA-R.S. 23:1317(B) states, in relevant part:

Costs may be awarded by the workers’ compensation judge, in his discretion, and when so awarded the same may be allowed, taxed, and collected as in other civil proceedings. The fees of expert witnesses shall be reasonable and shall not be allowed unless fixed in the judgment.

On review, -a Hearing Officer’s assessment of costs can be reversed by this court only upon a showing of abuse of discretion.

After review, we find no abuse of the trial court’s discretion in its decision not to award fees to the Phillips.

|13The Phillips further request that the Judgment be amended to include all accrued judicial interest.

LSA-R.S. 23:1201.3 provides, in relevant part:

Any compensation awarded and all payments thereof directed to be made by order of the workers’ compensation judge shall bear judicial interest from the date compensation was due until the date of satisfaction. The interest rate shall be fixed at the rate in effect on the date the claim for benefits was filed with the office of workers’ compensation administration.

Because the language of this statute is mandatory, an award of legal interest in workers’ compensation cases is not discretionary with the court, as the interest attaches automatically until the judgment is satisfied, whether prayed for in the petition or mentioned in the judgment. Therefore, appellees are entitled to such interest in the present case and we amend the judgment accordingly.

For the foregoing reasons, the judgment of the trial court is amended, and affirmed as amended.

AMENDED AND AFFIRMED.

      . 33 U.S.C. § 901, etseq.

      . 46 U.S.C.App. § 688, et seq.

      . 33 U.S.C. § 902(3).

      . 33 U.S.C. § 903(a); Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 1423, 84 L.Ed.2d 406 (1985).

      . 164 F.3d 901, 908 (5 Cir.1999).

      . 97-551 (La.App. 3 Cir. 10/29/97), 702 So.2d 1064.

      . Chandris, Inc. v. Latsis, 515 U.S. 347, 355, 115 S.Ct. 2172, 2183, 132 L.Ed.2d 314 (1995).

      . 520 U.S. 548, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997).

      . 2001-0738 (La.App. 3 Cir. 12/12/01), 801 So.2d 1269.

      . 801 So.2d at 1276.

      . Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380.

      . Id.

      . Chaisson, atp. 14, 708 So.2dat381.

      . Id.

        .Miller v. Southern Baptist Hosp., 2000-1352 (La.App. 4 Cir. 11/21/01), 806 So.2d 10; writ denied, 2001-3379 (La.2002), 811 So.2d 943.

      . State v. Martin, 458 So.2d 454 (La.1984).

      . C. McCormick, Evidence § 245 (E. Cleary ed.1984).

      . The audit itself was discussed at length by witness Max Mega, supra.

      . State v. Nicholls College Foundation, 592 So.2d 419, 422 (La.App. 1st Cir.1991), writ denied, 593 So.2d 651 (La.1992).

      . Kortz v. Colt Energy Services, Inc., 97-159 (La.App. 5 Cir, 07/29/97), 698 So.2d 460, citing Crooks v. Town of Ball, 94-466 (La.App. 3 Cir. 11/2/94), 649 So.2d 597.


author: |,MARION F. EDWARDS, Judge.

text:
    Sabrina TRUSTY and Minh Quang Bui v. ALLSTATE INSURANCE COMPANY and Robert S. Hatje.
    No. 03-CA-289.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Thomas L. Smith, New Orleans, LA, for Appellant.
    James L. Donovan, Jr., Metairie, LA, for Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and SUSAN M. CHEHARDY.
   |,MARION F. EDWARDS, Judge.

Plaintiffs/appellants Sabrina Trusty and Minh Quang Bui (hereinafter collectively “Trusty”) appeal a judgment of the district court dismissing their lawsuit. We reverse for the following reasons.

This case arises out of an automobile accident occurring in Jefferson Parish. Trusty filed suit on March 30, 2001. Defendants/appellees Allstate Insurance Company and Robert S. Hatje (hereinafter “Allstate”) answered the suit, and submitted written Interrogatories and Request for Production of Documents. Allstate alleged that it made numerous attempts to contact the attorney for Trusty, who did not return telephone calls or answer correspondence. On July 25, 2001, Allstate filed a Motion to Appoint a Private Process Server, for the purpose of serving a Motion and Order to Compel Discovery. Service could not be effected at that time. A subsequent Motion to Compel was filed in May 2002. The record indicates that the sheriff made five unsuccessful attempts to serve Trusty’s counsel with the motion. The return showed that the attorney was never in his office. |s Another Motion to Appoint Process Server was granted, and according to the return, service was achieved by putting the motion in the mail slot on July 24, 2002. Trusty’s’ counsel did not appear at the hearing scheduled on the Motion to Compel set for July 29, 2002. As a result, the trial court rendered judgment on August 6, 2002, ordering Trusty to provide Allstate with answers to interrogatories and responses to its Request for Production of Documents within fifteen days of service of the Judgment.

The sheriff again attempted on five occasions to serve Notice of Judgment on Trusty’s attorney, and again noted that counsel was never in his office. The Notice of Judgment was mailed by the Clerk of Court pursuant to La. C.C.P. art. 1913. Another private process server was appointed, and service of the judgment was made on October 7th by placing the notice of judgment through the mail slot. On November 8, 2002, Allstate filed an Ex Parte Motion to Dismiss, alleging that Trusty failed to comply with the judgment of the court ordering discovery. The Motion was granted on November 12th. It is from this judgment of dismissal that Trusty appeals.

Trusty argues that the service of both the Motion to Compel and the Rule to Show Cause was insufficient.

The rule to show cause is a contradictory motion requiring service on the adverse party. La. C.C.P. art. 963. The Louisiana Code of Civil Procedure provides clear-cut methods of service of process. La. C.C.P. art. 1312 provides that except for certain motions not applicable here, every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable. C.C.P. article 1313 states:

Service by mail, delivery, or facsimile
A.Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under |4an express provision of law may be served as provided in this Article, may be served either by the sheriff or by:
(1) Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.
(2) Delivering a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party.
(3) Delivering a copy thereof to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.
(4) Facsimile transmission of a copy thereof to the counsel of record at his number designated for facsimile transmission, or if there is no counsel of record, to the adverse party at his number designated for facsimile transmission, this service being complete upon receipt of the transmission.
B. When service is made by mail, delivery, or facsimile transmission, the party or counsel making the service shall file in the record a certificate of the manner in which service was made.
C. Notwithstanding Paragraph A of this Article, if a pleading or order sets a court date, then service shall be made by registered or certified mail or as provided in Article IS If (emphasis supplied) Under C.C.P. art. 1314:
A. A pleading which is required to be served, but which may not be served under Article 1313, shall be served by the sheriff by either of the following:
(1) Service on the adverse party in any manner permitted under Articles 1231 through 1266.
(2)(a) Personal service on the counsel of record of the adverse party or delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.
(b) Except as otherwise provided in Article 2293, service may not be made on the counsel of record after a final judgment terminating or disposing of all issues litigated has been rendered, the delays for appeal have lapsed, and no timely appeal has been taken,
B. Personal service on a partner or office associate of a counsel of record, in the office of such counsel of record shall constitute valid service under Paragraph A of this Article.

C.C.P. art. 1235 also permits service on a person represented by an attorney as follows:

A. Service is made on a person who is represented by another by appointment of court, operation of law, or mandate, through personal or domiciliary service on such representative.
|fiB. Service on an attorney, as a representative of a client, is proper when the attorney’s secretary is served in the attorney’s office.
C. For the purposes of this Article “secretary” shall be defined as the person assigned to a particular attorney and who is charged with the performance of that part of the attorney’s business concerned with the keeping of records, the sending and receiving of correspondence, and the preparation and monitoring of the attorney’s appointments calendar.

None of the applicable method of service on an attorney of record includes the process utilized in the instant case. We are obliged to conclude that service of the Motion and Order to Compel Discovery was not properly served.

Allstate avers that Trusty’s counsel cannot defeat service by refusing to “effectively have a legal office which he purports to have.” We agree. It is well settled that a litigant may not defeat service by merely refusing to accept a letter containing a citation. Neither may a litigant avoid service by refusing to claim a certified letter. This court has previously determined that a default is properly entered against a litigant after a factual determination that the party was avoiding service.

In the present case, at the hearing on the Motion to Compel, counsel for Allstate disclosed to the court his problems contacting opposing counsel for both discovery purposes and service of the motion. On the facts of this case, and based on our previous jurisprudence, we find that at that hearing on the Motion to Compel, an evidentiary showing that Trusty’s counsel was avoiding service was necessary before a valid judgment might have issued. Further, it is not apparent from the record that Allstate attempted to serve Trusty, through her counsel, via certified or registered mail as provided by C.C.P. art. 1313(C).

I fiWe are required to find that the judgment of August 6 was an absolute nullity because Trusty was not properly served with notice. Although service of the judgment was properly accomplished via the Clerk of Court, it was null from its inception and therefore without effect against Trusty.

For the foregoing reasons, the judgment dismissing Trusty’s action is reversed, and the matter is remanded for further action in accordance with this opinion. We note herein that in our opinion, attempts by Trusty’s counsel to thwart discovery may well be a violation of the Rules Of Professional Conduct.

REVERSED AND REMANDED.

      . We are cited to McFarland v, Dippel, 1999-0584 (La.App. 1st Cir.3/31/0), 756 So.2d 618, writ denied 2000-1794 (La.9/29/00), 770 So.2d 349.

      . Id.

      . Id., and the cases cited therein.

      . Gordon v. Coker, 94-402 (La.App. 5th Cir. 11/29/94), 646 So.2d 1189.


author: J^SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Bryan DAVIS.
    No. 03-KA-488.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Jane Beebe, Louisiana Appellate Project, Gretna, LA, for Appellant, Bryan Davis.
    Bryan Davis, In Proper Person, ALC Mercury Dorm D-l Kinder, LA, Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Twenty-Fourth Judicial District Court, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges EDWARD J. DUFRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   J^SUSAN M. CHEHARDY, Judge.

On November 29, 2000, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Bryan Davis, with three counts of distribution of cocaine, in violation of La. R.S. 40:967(A). Defendant was arraigned on November 30, 2000 and pled not guilty.

On November 30, 2000, the State amended the first two counts of the bill of information to distribution of a counterfeit controlled dangerous substance as defined by La. R.S. 40:967(A), in violation of La. R.S. 40:971.1. Arraignment on the amended bill of information was scheduled for January 30, 2001.

On January 30, 2001, the defendant withdrew his prior plea and entered a guilty plea to the amended charges. On that day, defendant, his attorney, and the trial judge signed an Acknowledgement of Constitutional Rights and Waiver of Rights form, in which the defendant acknowledged that he was pleading guilty to two counts of distribution of “false representation of controlled dangerous substance” and one count of distribution of cocaine. The form also reflected that defendant was to- be- sentenced to five years at hard labor on each count of distribution of counterfeit controlled dangerous substances and twenty years at |3hard labor without benefit of parole, probation, or suspension of sentence for the first five years on the distribution of cocaine charge. Further, the sentences were to run concurrently and defendant would receive credit for time served. Finally, the State agreed that, when it sought to enhance the defendant’s sentence, the resulting punishment would not exceed “the sentence given today.”

After the waiver of rights form was executed, the court conducted a hearing pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial judge advised defendant of the constitutional rights he was waiving by entering the guilty plea and, after questioning the defendant, determined that the plea was knowing and voluntary. The trial judge then accepted the defendant’s guilty plea. That same day, the court then sentenced the defendant pursuant to the plea agreement to twenty years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence for the first five years, but with credit for time served on for distribution of cocaine. On each of the distribution of a counterfeit controlled dangerous substance counts, defendant was sentenced to five years at hard labor. The defendant’s sentences were ordered to be served concurrently.

After the defendant was sentenced on the original charges, the State filed a multiple offender bill of information pursuant to La. R.S. 15:529.1(A)(l)(a) alleging that defendant was a second felony offender. On that day, defendant, his attorney, and the trial judge signed an Acknowledgement of Constitutional Rights and Waiver of Rights in connection with a guilty plea to a Habitual Offender Bill of Information, in which the defendant acknowledged that he was a second felony offender. The form also reflected that defendant, as a second felony offender, was to be sentenced to twenty years at hard labor without benefit of probation, or suspension of sentence. Further, the sentence would run concurrently with all other sentences and defendant would not be billed as a third felony offender.

[ ¿That same day, defendant admitted to being a second felony offender. After questioning the defendant and advising the defendant of his rights regarding his admission, the trial judge accepted the admission as being knowing and voluntary. Thereafter, the trial judge found defendant to be a second felony offender, vacated the defendant’s original sentence on the distribution of cocaine charge, and imposed the enhanced sentence of twenty years at hard labor without benefit of probation or suspension of sentence.

After his sentencing on original and enhanced sentencing on January 30, 2001, defendant did not move for an appeal within the statutory time limits. Over the ensuing year, defendant filed three pro se writ applications with this Court.

On March 11, 2002, defendant filed a pro se writ application wherein he sought enforcement of a trial court order requiring production of his Boykin transcript. State v. Davis, 02-KH-240 (La.App. 5 Cir. 3/18/02) (unpublished writ disposition). This Court, on March 18, 2002, transferred the matter to the trial court for compliance with its order for production. Id.

On April 9, 2002, defendant filed a pro se writ application with this Court. State v. Davis, 02-KH-353 (La.App. 5 Cir. 4/11/02) (unpublished writ disposition). In that application, defendant complained that the trial court denied him post conviction relief when he sought an out-of-time appeal. This Court denied the writ and stated the following: “Relator stipulated to being a multiple offender and was sentenced as such on January 30, 2001. Based on his stipulation he waived his appeal rights. Accordingly, this writ application is denied.”

On August 23, 2002, defendant-filed a third pro se application for writs with this Court. State ex rel. Davis, 02-KH-877 (La.App. 5 Cir. 9/28/02) (unpublished writ disposition). The application for writs was denied by this Court because defendant had not first sought post conviction relief with the trial court. Id.

|5On January 27, 2003, defendant filed a pro se application for post conviction relief with the district court. In that application, defendant claimed his guilty plea to the underlying felony was not knowing and voluntary, his multiple offender sentence was illegal, and his counsel was ineffective for failing to seek an appeal. On February 7, 2003, the trial court denied relief on the first two issues, granted defendant an out-of-time appeal, and appointed Louisiana Appellate Project to represent the defendant on appeal.

On May 19, 2003, defendant’s attorney filed a brief indicating that a thorough review of the record revealed no non-frivolous issues to raise on appeal and no rulings that would arguably support an appeal, in accord with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Defendant was advised of this filing and, on June 3, 2003, defendant filed a pro se brief with this Court alleging two assignments of error: his guilty plea to the underlying felony of distribution of cocaine was not knowing and voluntary because the trial judge failed to fully explain the privilege against self-incrimination and his multiple offender sentence is illegal because the trial judge failed to vacate the original sentence before imposing the enhanced sentence.

First, we note a jurisdictional matter. In this case, defendant did not move for appeal in open court or file a written motion for appeal within five days of his sentencing on January 30, 2001. Further, defendant did not file a motion to reconsider sentence pursuant to La.C.Cr.P. art. 881.1.

When a defendant fails to move for an appeal within the time allotted by La. C.Cr.P. art. 914, the defendant’s conviction and sentence become final and the defendant loses the right to obtain an appeal by simply filing a motion for appeal in the trial court. State v. Counterman, 475 So.2d 336, 338 (La.1985); State v. Taylor, 03-127, p. 3 (La.App. 5 Cir. 5/29/03), 848 So.2d 141, 142. Once the time ^delays provided in La.C.Cr.P. art. 914 have expired, the appropriate procedural vehicle for a defendant to seek the exercise of his right to appeal is by an application for post conviction relief filed with the district court, pursuant to La. C.Cr.P. art. 924 et seq. State v. Counterman, 475 So.2d at 339.

On January 27, 2003, defendant filed an application for post conviction relief seeking an out-of-time appeal, which was granted. This Court now has jurisdiction over this appeal. We note that this appeal arises from a guilty plea, in which no factual predicate was presented. Thus, no further facts are available to this Court.

In this case, as noted earlier, defense counsel has filed a brief that follows the procedure approved by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), reh’g denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967), discussed in State v. Benjamin, |7573 So.2d 528 (La.App. 4 Cir.1990), and adopted in State v. Bradford, 95-929, 95-930 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108.

After an independent review of the record and appellant’s counseled brief, it appears that the appellant’s counsel adequately reviewed the procedural history of the ease and provided a detailed and reviewable assessment for both the defendant and the appellate court of the appeal’s prospects, as required by the Louisiana Supreme Court in Jyles. Further, there do not appear to be any errors or issues which, if raised, would arguably support an appeal. State v. Haynes, 96-84, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1120, 1122.

In his pro se brief, defendant argues that his guilty plea was not knowing and voluntary because he was not properly advised of his privilege against self-incrimination. He contends that, if he had known that he did not have to “take the stand to testify,” he would have gone to trial instead of pleading guilty.

In Boykin v. Alabama, supra, the United States Supreme Court emphasized three federal constitutional rights which are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront one’s accusers. Because a guilty plea waives these fundamental rights of the accused, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. State v. Galliano, 396 So.2d 1288, 1290 (La.1981); State v. Vu, 02-1243, p. 9 (La.App. 5 Cir. 4/9/03), 846 So.2d 67, 72.

The trial court must make an independent determination of whether the defendant’s plea is made knowingly and intelligently through a colloquy wherein the defendant is questioned about his decision and the constitutional rights he is waiving. State v. Montalban, 00-2739, p. 4 (La.2/26/02), 810 So.2d 1106, 1109, cert. denied, 537 U.S. 887, 123 S.Ct. 132, 154 L.Ed.2d 148 (2002). Thus, the record of the plea |smust show that the defendant was informed of these three fundamental rights and knowingly and voluntarily waived the same. State v. Gardette, 00-38, p. 5 (La.App. 5 Cir. 5/17/00), 760 So.2d 1262,1264.

A court may not set aside a guilty plea after sentence is imposed unless the plea is constitutionally deficient. State v. Smith, 406 So.2d 1314, 1315 (La.1981); State v. Bell, 00-1084, p. 8 (La.App. 5 Cir. 2/21/01), 781 So.2d 843, 847. Plea agreements must be construed in light of the rights and obligations created by.tbe Constitution. State v. Givens, 99-3518, p. 31 (La.1/17/01), 776 So.2d 443, 455.

During the defendant’s guilty plea hearing, prior to the acceptance of the plea, the trial judge specifically asked the defendant if “your attorney had ... advised you of your rights to trial by jury or by the Court alone, to confront your accusers and of your rights against self-incrimination.... ” (Emphasis added). The defendant indicated that his attorney had advised him of these rights and, further, that he understood those rights.

In this case, the defendant’s attorney and the trial judge both explained defendant’s privilege against self-incrimination. Further, defendant, his attorney and the trial judge executed a waiver of rights from that also explained the privilege against self-incrimination. Defendant’s claim that he was not adequately advised of the right to remain silent is unsupported by the record. Therefore, we conclude that this assignment of error lacks merit.

In his second pro se assignment of error, defendant argues that he was denied due process and his sentence is illegal because the trial judge did not vacate the original sentence for distribution of cocaine before imposing the enhanced, habitual-offender sentence. Defendant also contends that the trial judge failed to “give reasons for the determination.”

La. R.S. 15:529.1(D)(3) discusses the requirements for sentencing of a multiple offender, and provides in pertinent part, as follows:

hWhen the judge finds that [defendant] has been convicted of a prior felony or felonies or adjudicated a delinquent as authorized in Subsection A, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted or adjudicated, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed.... The court shall provide written reasons for its determination ....

(Emphasis added).

We have reviewed the official transcript of defendant’s January 30, 2001 sentencing in the record on appeal. Our review reveals that the trial judge, after advising the defendant of his rights and ascertaining his understanding of those rights, vacated defendant’s sentence for distribution of cocaine before imposing the agreed-upon enhanced sentence. The record also contains a corrected minute entry, which reflects that the trial judge vacated the sentence on count three (distribution of cocaine) for the specific case number of the underlying felony conviction. Defendant’s claim that his underlying sentence was not vacated is unfounded.

Additionally, the trial judge stated the factual basis for the sentence that was imposed on the record at the sentencing hearing. We find that defendant has failed to demonstrate a denial of due process. Therefore, this pro se assignment of error lacks merit.

Finally, according to La.C.Cr.P. art. 920, we have reviewed the record for errors patent and found none that require remand.

CONVICTIONS AND SENTENCES AFFIRMED.

      . According to the record, defendant did not seek review of the denial of his writ application.

      . In a writ disposition in this same case (State v. Davis, 02-KH-353 (La.App. 5 Cir. 4/11/02)), defendant sought an out-of-time appeal and this Court denied the defendant's application, noting that when defendant stipulated to being a multiple offender, defendant waived his right to appeal. An unqualified guilty plea normally waives all non-jurisdictional defects in the proceedings prior to the entry of the guilty plea and precludes review of such defects either by appeal or post conviction relief, State v. Cox, 02-0333, p. 7 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 523. In this case, no objection or reservation of defects was made by defendant either at the time of the guilty plea proceedings or during the multiple offender adjudication and sentence. Thus, the rationale in denying defendant's second writ application.
      Under the "law of the case” doctrine, an appellate court will generally not reconsider prior rulings made in the same case on subsequent appeal. State v. Guccione, 96-1049, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060, 1066, writ denied 97-2151 (La.3/13/98), 712 So.2d 869. Judicial efficiency demands that this Court accord great deference to its prior rulings. State v. Thibodeaux, 97-1636, pp. 9-10 (La.App. 3 Cir.1998), 728 So.2d 416, 422, writ denied, 98-3131 (La.5/7/99), 741 So.2d 27, cert. denied, 528 U.S. 936, 120 S.Ct. 341, 145 L.Ed.2d 266 (1999).
      Importantly, however, the appellate court's denial of supervisory writs does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. Reconsideration is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Thibodeaux, 728 So.2d at 422. See also, State v. Humphrey, 412 So.2d 507, 523 (La.1982).
      Furthermore, appeals are favored in the law. State v. Gilliam, 01-748-750, p. 4 (La.App. 5 Cir. 1/15/02), 807 So.2d 1024, 1026, writ denied, 02-512 (La.11/1/02), 828 So.2d 562. Pro se filings are generally held to less stringent standards. See, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). Additionally, the Louisiana Supreme Court has disapproved the refusal to review the merits of pro se claims on the basis of hyper-technical interpretation of court rules, the panel may choose to reach the merits of the claims. See, State ex rel. Johnson v. Maggio, 440 So.2d 1336, 1337 (La. 1983). Finally, we note that, procedurally, when the trial judge granted an out-of-time appeal, defendant’s full appeal rights were restored, rendering rulings on defendant's other post conviction relief issues premature.

      . The Bradford procedure has been quoted in Central Staff memoranda in the past, and it is not repeated here. Rather, the procedure is attached as an appendix to this memorandum for the panel's convenience.