author: I, GASKINS, J. 11 STEWART, J.,

text:
    STATE of Louisiana, Appellee, v. Eddie BROWN, III, Appellant.
    No. 37,736-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 12, 2004.
    Rehearing Denied April 1, 2004.

      James E. Beal, Louisiana Appellate Project, for Appellant.
    Jerry Jones, District Attorney, Madeleine Slaughter, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and PEATROSS, JJ.
   I, GASKINS, J.

The defendant, Eddie Brown, III, was convicted by a jury of possession of cocaine. He was then adjudicated a second felony habitual offender and was sentenced to serve eight years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals his conviction and sentence. We amend, and as amended, affirm the conviction and sentence.

FACTS

After midnight on April 10, 2002, Officers Joel Heard and Daryl Stapp of the Monroe Police Department were on patrol in an area of town known for drug trafficking. They observed a vehicle, driven by the defendant, stopped in the middle of Dixie Street. Two men were standing at the driver’s side of the vehicle with their hands inside the car. As the officers approached the vehicle in their patrol ear, the two men ran away and the defendant started driving away. The officers followed the vehicle and turned on their emergency lights. The car turned into a residential driveway, the passenger door opened, and two men immediately got out. Officer Stapp stopped the men and put them on the ground. The defendant put the car in reverse and attempted to leave the scene. Officer Heard pointed his gun at the defendant and commanded him to stop.

Officer Heard then ordered the defendant to get out of the car. After handcuffing him, the officer observed a brown piece of paper on the ground on the driver’s side of the car. The paper was dry although the ground was wet due to recent rain. The paper was found to contain two plastic bags containing substances later determined to be marijuana and cocaine. The 12defendant denied that the drugs belonged to him. He contended that they belonged to the passengers. The officer saw no other people in the area at the time of the arrest. The defendant did not have a significant amount of money with him nor did he have any drug paraphernalia.

The defendant was charged with possession of cocaine. On October 29, 2002, a jury convicted him as charged. The defendant was sentenced to serve five years at hard labor. After being adjudicated a second felony habitual offender, he was sentenced on January 17, 2003 to serve eight years at hard labor without benefit of probation or suspension of sentence. A motion to reconsider the sentence was filed on January 21, 2003. On August 12, 2003, pursuant to an order of this court, the trial court denied the motion to reconsider the sentence and clarified that the original five-year sentence was vacated following the defendant’s adjudication as a habitual offender. The trial court then stated that the defendant was sentenced to serve eight years at hard labor without benefit of parole, probation or suspension of sentence. The defendant appealed, claiming that the evidence was insufficient to support the conviction, that the sentence imposed was excessive, and that the sentence was improperly ordered to be served without parole.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that his conviction should be overturned because the evidence was not sufficient to convict him of possession of cocaine. This argument is without merit.

|sAlthough the record does not reflect that the defendant filed a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 1997-1203 (La.10/17/97), 701 So.2d 1333.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 1996-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

14The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. Flight and attempt to avoid capture are circumstances from which the trier of fact may infer guilt. State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir. 1992), writ denied, 605 So.2d 1089 (La.1992).

La. R.S. 40:967(C), in part, prohibits the knowing and intentional possession of a Schedule II controlled dangerous substance. Cocaine is a Schedule II controlled dangerous substance. La. R.S. 40:964, Schedule 11(A)(4). To support a conviction for possession of cocaine, the state must establish that the defendant was in possession of the drug and that he | fiknowingly or intentionally possessed it. State v. Shields, 1998-2283 (La.App. 4th Cir.9/15/99), 743 So.2d 282.

However, to be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband; constructive possession is sufficient to convict. Constructive possession means having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. White, 37,261 (La. App.2d Cir.6/25/03), 850 So.2d 987.

Mere presence in the area where narcotics are discovered is insufficient to support a finding of possession. However, the fact finder may draw reasonable inferences based upon the evidence presented at trial. State v. White, supra; State v. Allen, 34,103 (La.App.2d Cir.12/22/00), 774 So.2d 1212.

A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to' constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Toups, 2001-1875 (La.10/15/02), 833 So.2d 910.

The defendant argued that the drugs belonged to the passengers of the car. He questioned the officers about whether there was a sofa under the carport of the driveway in which the defendant stopped. He argued that | fithere may have been people on the sofa who dropped the drugs when they saw the police approaching. The testimony of Officer Heard and Officer Stapp showed that they did not see any other people in the area. Also, the defendant stopped his car in the driveway, not under the carport.

Mark Johnson of the Monroe Police Department testified as an expert in training techniques, as well as packaging, value and handling of narcotics. He stated that the situation observed by Officers Heard and Stapp looked like a drug deal. Officer Johnson testified that the amount of cocaine found in this case was approximately one-eighth of an ounce and is known as an “eight ball” on the street. He said that amount of cocaine could be bought by a dealer for $200 to $225. If cut and resold, a dealer could make between $300 to $350 for an “eight ball.”

The officers’ testimony shows that, although they did not see the actual drug transaction, when they first observed the defendant’s vehicle, two men were standing outside on the driver’s side of the car, with their hands in the' car. The individuals standing outside the car fled when the police approached. The defendant also attempted to drive away from the police. The officers followed in their patrol car with emergency lights activated. When the defendant pulled into a driveway, his passengers jumped out of the vehicle and tried to run away. The defendant then tried again to drive away, and was ordered out of the car at gunpoint. After the defendant was handcuffed, the dry paper containing the drugs was found on the wet ground, on the driver’s side of the vehicle.

In this case, no drugs were found on any occupants of the car, the officers did not see the drugs passed to them while the car was stopped on Dixie Street, and the officers did not see anything being tossed from the car. However, the testimony of the officers shows that the defendant and his passengers were stopped in an area known for drug trafficking, engaging in behavior that appeared to be a drug transaction. When the defendant was apprehended, drugs were found near him and appeared to have been there only a short time. The defendant was the only person close to the area where the cocaine was found.

Under these facts, the evidence is sufficient for the jury to conclude that the defendant and his friends purchased the cocaine from the individuals outside the car and that the defendant was in constructive possession of cocaine. The jury did not err in finding the defendant guilty of possession of cocaine based upon this record.

EXCESSIVE SENTENCE

Following the defendant’s conviction for possession of cocaine, his adjudication as a second felony habitual offender, and his sentence to serve eight years at hard labor without benefit of probation or suspension of sentence, the defendant filed a motion to reconsider his sentence. When the trial court failed to rule on the motion, this court ordered the court to do so. The trial court was also ordered to clarify the sentence because the first sentence had not been vacated before the imposition of the habitual offender sentence. Following his resentencing, the defendant appealed, claiming that the sentence was excessive. This argument is without merit.

lsThe test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641.

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

The second prong of the test of whether the sentence imposed is too severe depends on the circumstances of the case and the background of the 19defendant. A sentence violates La. Const, art. 1 § 20 if it is grossly out of proportionate to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Brown, 35,641 (La.App.2d Cir.8/20/03), 852 So.2d 1234.

The defendant argues that the trial court failed to adequately consider that, at 22 years of age, he was a youthful offender, that he is not dangerous, and that there was only circumstantial evidence against him. The trial court had access to and considered a presentence investigation report listing all pertinent information about the defendant’s family background and listing his extensive criminal record, including convictions for burglary of a pharmacy and attempted possession of marijuana. One month prior to the present offense, the defendant had been released from prison on a 2000 conviction for possession of cocaine with intent to distribute.

La. R.S. 40:967 provides that the penalty for possession of cocaine is imprisonment with or without hard labor for not more than five years; in addition, a defendant may be sentenced to pay a fine of not more than $5,000. La. R.S. 15:529.1 provides that, upon adjudication as a habitual offender, if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a conviction. Therefore, the defendant’s | ^sentencing exposure for incarceration was two and one-half to 10 years. His sentence of eight years at hard labor is not excessive. The sentence imposed by the court is tailored to the offender and the offense and does not shock the sense of justice.

ILLEGAL SENTENCE

The defendant argues that the minutes from his resentencing on August 12, 2003, reflect an illegally excessive sentence because the defendant was ordered to serve eight years at hard labor without benefit of probation, suspension of sentence, or parole. The prosecution agrees that this argument has merit.

La. R.S. 15:529.1(G) provides that a sentence imposed under the habitual offender statute is to be served without benefit of probation or suspension of sentence. The statute does not specify that the sentence be served without benefit of parole. State v. Tate, 1999-1483 (La.11/24/99), 747 So.2d 519.

We note that when the defendant was originally sentenced as a habitual offender on January 17, 2003, the trial court specifically stated that the sentence was imposed under the provisions of La. R.S. 15:529.1(G), to be served without benefit of probation or suspension of sentence. The sentence was not ordered to be served without the benefit of parole. The intent of the sentencing court was clearly to comply with the applicable statutory provisions. It appears that on August 12, 2003, when the trial court clarified the sentence in compliance with an order of this court, it simply misspoke in including parole in the list of benefits to be denied the | n defendant. We amend the sentence and the minutes to delete any reference to service of the sentence without eligibility for parole.

ERROR PATENT

The transcript of the defendant’s resen-tencing on August 12, 2003, shows that he was not advised of the delays within which he may seek post conviction relief under La. C. Cr. P. art. 930.8. By this opinion, we inform the defendant that no application for post conviction relief, including one which seeks an out-of-time appeal, will be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. art. 914 or 922.

CONCLUSION

For the reasons stated above, we affirm the conviction of the defendant, Eddie Brown III, for possession of cocaine. We amend the sentence to provide that the defendant is to serve eight years at hard labor without benefit of probation or suspension of sentence. We delete reference to denial of parole. The sentence is affirmed in all other respects.

AMENDED AND AFFIRMED AS AMENDED.

STEWART, J., dissents with written reasons.

11 STEWART, J.,

dissenting.

Because I find the circumstantial evidence upon which this conviction rests insufficient to establish the defendant’s guilt beyond a reasonable doubt, I respectfully dissent from the majority’s decision to affirm the defendant’s conviction for possession of cocaine.

This is a matter of constructive possession, which requires proof that the accused exercised dominion and control over the contraband and had knowledge of its presence. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987. The evidence fails to establish either the defendant’s dominion, control, or knowledge of the cocaine found in a bag on the ground outside of the defendant’s vehicle. The officers who testified neither witnessed an exchange between the defendant or his passengers with persons outside the vehicle, nor did they witness the defendant or any of his passengers throwing anything from the vehicle. This conviction rests only on the fact that the defendant was in an area known for drug activity and that a bag of drugs was found near his vehicle. This meager circumstantial evidence is woefully inadequate to meet the high burden required for criminal prosecution. For these reasons, I dissent.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS and PEATROSS, JJ.

Rehearing denied.

Stewart, J., would grant rehearing.


source: Caselaw Access Project

author: 1,WILLIAMS, J.

license: Public Domain

text:
    John E. BROWN and Lovie Brown, Plaintiff-Appellee v. BROOKSHIRE’S GROCERY COMPANY d/b/a Super 1 Foods, et al., Defendant-Appellant.
    No. 38,216-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 12, 2004.

      David H. Nelson, Monroe, for Appellant.
    Richard J. Gallot, Jr., Ruston, Bobby L. Culpepper, Jonesboro, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   1,WILLIAMS, J.

In this slip and fall case, the defendant, Brookshires Grocery Company d/b/a Super One Foods (“Brookshires”), appeals a trial court judgment in favor of the plaintiff, John E. Brown. The trial court awarded the plaintiff $15,000 in general damages and $1888.94 in special damages for injuries sustained after he slipped and fell in the defendant’s store. For the following reasons, we affirm.

FACTS

On April 3, 1999, at approximately 7:30 a.m., the plaintiff, John E. Brown (“Brown”), entered the Super One Foods (“Super One”) grocery store in Ruston, Louisiana, to purchase groceries. As Brown was walking through the check-out area toward the grocery shelves, he slipped on spilled dishwashing liquid and fell.

At trial, Chris Turner (“Turner”), an assistant manager at Super One, testified that prior to the accident, a patron in an electronic motorized shopping cart, Alice Smith (“Smith”), was standing in the check-out line to purchase her items. He testified that after making her purchases, Smith began to put her items in bags and place them in her cart, which is customary for the patrons of Super One. Turner testified that he noticed that dishwashing detergent was leaking from the basket of Smith’s cart and he removed the upside-down bottle containing the liquid and replaced the pop-top cap, which had been released. Turner testified that he notified the store director, Michael D. Terry (“Terry”) of the spill and asked Terry to retrieve a “wet floor” sign. Turner^ further testified that he “guarded” the spill, by positioning himself between the spill and anyone entering the store, while | ¡(Terry left to retrieve the sign.

Despite Turner’s testimony that the accident occurred “right after” he discovered the spill, he testified that he witnessed several patrons pass him to leave the storp after they had finished checking out at other counters and he saw at least one person enter the store and proceed along the “Wall of Values” before the accident. However, he testified that he never saw Brown enter the store or approach the area of the spill. In fact, he stated that he did not see Brown until after the accident. Turner admitted that while the majority of customers entered the grocery store and traveled along the “Wall of Values,” to access the grocery shelves, it was not uncommon for patrons to proceed through one of the check-out aisles after entering the store, as Brown had done. According to Turner, the time of day when the accident occurred is not a particularly busy time for the grocery store.

Terry, the store director, confirmed Turner’s testimony that there was very'little traffic in the store at the time of the accident. Terry testified that he did not witness the accident because he left the area to retrieve a “wet floor” sign. He testified that when he returned to the area, approximately forty-five seconds later, Brown already had fallen and he was getting up from the floor. Terry testified that because the tile in the area of the spill was white and the spilled liquid was yellow, the contrast between the two colors made' the spill very noticeable. He also confirmed Turner’s testimony that it was not unusual for patrons to proceed to the merchandise area |3through the check-out aisles. Terry testified that there were no signs or other obstructions to discourage patrons from walking through the checkout aisles to reach the merchandise area.

J.C. Knight, a cookie salesman, testified that at the time of the accident, he was talking to Turner about some sales promotions. He stated that as he was talking to Turner, he noticed Brown walk in the front door at a brisk pace without ever looking down at the floor. He testified that Turner was standing between the front door and the spill, but facing the other check out counters when Brown walked past him, brushed Turner’s shoulder and slipped in the spilled liquid. He also testified that the liquid was orange in color.

Brown’s wife, Lovie Brown, testified with regard to her husband’s injuries and his physical condition after the accident. While she appeared to be somewhat confused as to which arm he had injured, she testified that the arm was swollen and Brown had to wear a splint for a period of time. She testified that Brown still experiences some pain and weakness in his wrist which prevents him from lifting anything heavy. According to Mrs. Brown, the injury has impaired Brown’s ability to work with his tools and to do maintenance work at apartments owned by his brother, activities that he enjoyed prior to the accident. Mrs. Brown also testified that because her husband suffered á stroke in January 2000, his memory is not as good and he gets confused about some of the details with regard to the accident and his injuries. Mrs. Brown offered no real substantive testimony with regard to her loss of consortium claim, other than to state that Brown was irritable |4about not being able to do “certain things” after the accident.

We note that Brown’s testimony appears to have been largely error-prone due to his confusion and lack of memory. However, the trial court did not find, and nothing in this regard suggests to this Court, that he was purposely- coloring his testimony in an attempt to be disingenuous. The trial court noted in its ruling its impression that Brown’s memory had been affected by an unrelated illness, and thus the court did not cite much of his testimony in reaching its conclusions. Also testifying at the trial was Angelo Julian, a longtime friend of Brown. Julian was not present at the time of the accident and was only able to offer vague testimony with regard to the plaintiffs complaints of pain and discomfort caused by the injury.

Medical records jointly introduced at trial reveal that Brown presented to the emergency room at Lincoln General Hospital in Ruston after he slipped and fell in Super One on April 3, 1999. He complained of pain in his left wrist and swelling of the forearm above his left wrist. An x-ray revealed that Brown had suffered a non-displaced fracture to the distal end of the radius of his left wrist, with significant soft-tissue swelling of his left forearm. He was placed in a wrist splint and prescribed pain medication. Brown was instructed to follow up with an orthopedist within four to five days.

On April 8, 1999, Brown was seen by Dr. Richard Ballard, an orthopedist at the Green Clinic in Ruston. Because Dr. Ballard noticed that Brown was still experiencing moderate swelling of his left wrist and forearm, he advised Brown to continue to wear the wrist splint and to return | Bto the clinic in two weeks for a new x-ray. When Brown returned to the clinic on April 22, 1999, Dr. Ballard noted some improvement to Brown’s left wrist. He also noted that Brown complained of “quite a bit” of back pain that began shortly after the accident. Dr. Ballard detected spasms in Brown’s lower back, but did not find any neurological deficit. He recommended that Brown wear the wrist splint for an additional three weeks and diagnosed him with a lumbar strain, for which he prescribed medication.

On May 13, 1999, Brown returned to the Green Clinic for a follow-up visit. Dr. Ballard’s notes reflect that while Brown’s condition had improved, he still had some stiffness in his wrist and fingers. Dr. Ballard discontinued the wrist splint, but advised Brown to begin vigorous occupational therapy.

On May 14, 1999, Brown reported to the Ruston Outpatient Physical Therapy Service for an occupational therapy evaluation and plan of care. The occupational therapist concluded that Brown’s primary deficits were decreased range of motion and increased pain with the use of his left upper extremity. Brown attended three physical therapy sessions in accordance with the plan of care, after which it was noted that he had a significant improvement in his range of motion, strength, endurance and functional abilities. Brown was last seen by Dr. Ballard on June 3, 1999. In his final report, Dr. Ballard noted that Brown had responded well to his physical therapy sessions. He released Brown to continue his normal activities. Although Brown’s wrist had minimal swelling and pain, Dr. Ballard did not | ^anticipate that Brown would have any permanent impairment as a result of his injury.

Following the presentation of evidence, the court rendered judgment against Brookshires, finding it 100% at fault, and awarding plaintiffs general damages in the amount of $15,000 and medical expenses of $1,888.94. Brookshires now appeals, urging that the trial court erred in finding its employees negligent in causing the accident, in failing to find comparative fault on the part of Brown or the patron whose dishwashing liquid had spilled and by abusing its discretion in the award of general damages.

DISCUSSION

LSA-R.S. 9:2800.6 states in pertinent part:

B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless such finding is clearly wrong. Stobart v. State, 92-1328 (La.4/12/93), 617 So.2d 880; Rosell v. ESCO, 549 So.2d 840 (La.1989). In fact, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, supra. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one in light of the evidence in the record. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Stobart, supra.

The trial court concluded, and we agree, that the dishwashing liquid spill presented an unreasonable risk of harm to Brown, that the risk of harm was reasonably foreseeable and that Brookshires had actual notice of the spill. Defendant does not appear to dispute these findings on appeal.

The trial court further found that Brookshires failed to exercise reasonable care in its effort to protect patrons, particularly the plaintiff, from the spill. It is this finding that is the basis of Brook-shires’ argument on appeal. Specifically, Brookshires argues that it exercised reasonable care when one of its employees, Turner, recognized that the spill was present. According to Brookshires, Turner immediately stopped the spill, he sent someone to retrieve a “wet floor” sign and a mop, and he stood in front of the spill to warn store patrons. Brookshires contends that based on these acts by its employee and the fact that the spill was cleaned up within three to four minutes, the trial court was clearly wrong in finding that it was negligent.

A merchant is required to exercise reasonable care to protect its Ispatrons, to keep the premises safe from unreasonable risks of harm and to warn persons of known dangers. Ward v. ITT Specialty Risk Services, Inc., 31,990 (La.App.2d Cir.6/16/99), 739 So.2d 251. Whether measures taken by a merchant to prevent conditions that might cause a customer to fall are reasonable must be determined in light of the circumstances of each case. Hardman v. Kroger Co., 34,250 (La. App.2d Cir.12/6/00), 775 So.2d 1093.

In the present ease, Brookshires’ employees were aware of a known danger, namely, the dishwashing liquid spill in an area heavily trafficked by patrons either entering or leaving the store. Hence, the measures which should have been taken to prevent patrons from the known hazard were heightened. While we do not conclude that dutiful vigilance by one employee over the spill would not satisfy that duty, the evidence in this case clearly shows that Turner was somewhat distracted and not particularly alert to the patrons approaching the spill. This was not a par-tieularly busy time in the store. The evidence indicates that while standing guard over the spill, Turner was engaged in a conversation with Knight while both of them stood between the front door and the spill. Furthermore, Turner testified that he never saw Brown during the time Brown traveled approximately 25 feet from the front door to the area of the spill. Thus, we cannot say that the trial court was manifestly erroneous in concluding that Turner was less than attentive, and thus negligent, in his attempt to keep customers from stepping in the spill.

With regard to Brookshires’ argument that the trial court erred in | emailing to assign some percentage of fault to either Brown or the patron whose dishwash-ing liquid spilled on the floor, we find this assignment to be entirely without merit. As the trial court noted, there is no indication that Brown saw the spill as he approached. Patrons may reasonably assume that the aisles and floors in a store are clean and clear for passage and their duty to keep a proper lookout is diminished when distracted by the store’s merchandise. Perez v. Wal-Mart Stores, Inc., 608 So.2d 1006 (La.1992). The evidence reveals that Brown was entering the grocery store and looking straight ahead toward the checkout counter where Turner and Knight were standing. Furthermore, there is no evidence which allows us to conclude that Brown should have seen the spill. Therefore, we cannot conclude from the evidence in this record that the trial court was manifestly erroneous in finding that Brown was not at fault in causing the fall.

We also fail to identify in this record any evidence which proves any fault on the part of a female patron whose dish-washing liquid allegedly spilled. No one witnessed her place the dishwashing bottle in her cart. While Brookshires has taken the position that the patron caused the spill when she placed the bottle in her cart upside down, there is no evidence that she even placed a bottle of dishwashing liquid in her cart. Brookshires assumption is based solely on its general policy that its customers bag their own groceries. We, like the trial court, are unable to determine whether the top became dislodged while being handled by the check-out clerk before it was placed in the cart or whether on this particular occasion the patron even placed her own groceries in the cart. Absent any such evidence, we cannot Imconclude that the trial court erred in not assessing the female patron with a percentage of fault in causing the plaintiffs accident.

DAMAGES

Brookshires contends the trial court’s award of $15,000 in general damages is excessive. It argues that if Brown is entitled to any recovery, the maximum amount should be $8,500. We disagree.

In assessing general damages in tort cases, much discretion is left to the judge or jury. Before an appellate court may disturb such an award, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. It is only after an articulated analysis of the facts discloses an abuse of discretion that resort to prior awards in similar cases is proper. If the award is abusively low, it is raised to the lowest amount the trier of fact could reasonably have awarded. If the award is abusively high, it is reduced to the highest amount the trier of fact could have awarded. Jones v. Brookshires Grocery Company, 33,683 (La.App.2d Cir.8/23/00), 774 So.2d 200.

In the present case, the trial court found that although most of Brown’s back and wrist pain had been resolved within a couple of months, Brown was left with some residual pain and a weakened grip. The trial court also noted that the injury kept Brown from enjoying some of his pre-accident activities, such as working with his tools and at his brother’s apartments. In light of the medical records detailing Brown’s complaints of pain and the extent of his injuries, the trial court awarded him $15,000 injjjgeneral damages.

Before a trial court award for damages can be questioned as excessive, the reviewing court must first consider the individual circumstances of the case. The reviewing court must determine whether the amount of the award can be supported under an interpretation of the evidence viewed in a light most favorable to the plaintiff which reasonably could have been made by the factfinder. Hammock ex rel. Thompson v. Louisiana State Medical Center in Shreveport, 34,086 (La.App.2d Cir.11/1/00), 772 So.2d 306 citing Powell v. RTA, 96-0715 (La.6/18/97), 695 So.2d 1326. As stated above, only after an articulated analysis of the facts discloses an abuse of discretion, is it appropriate for a reviewing court to resort to prior awards in similar cases. O’Brien v. Remington Anns Co., Inc., 601 So.2d 330 (La.App. 2d Cir.1992). For an award to be considered excessive and an abuse of discretion, it must be so high in proportion to the seriousness of the injury that it shocks the conscience. Jones, supra.

After reviewing the record in its entirety, we cannot say that the general damages award in this case is abusively high. Other than presenting examples of lower general damage awards in cases where generically similar facts existed, defendant has not urged any argument on appeal to persuade this Court that such a comparison of prior awards should be undertaken.

CONCLUSION

For the reasons set forth above, the judgment of the district court is hereby affirmed. Costs of this appeal are assessed to Brookshires Grocery | ^.Company d/b/a Super One Foods.

AFFIRMED.

      . The documents in the record refer to this portion of the store as both the "Wall of Values” and the "Aisle of Value.” For purposes of this opinion, we will refer to this portion of the store as the "Wall of Values.”

      . Although the trial court rendered judgment in favor of both John and Lovie Brown, it specifically found that Lovie Brown had failed to present evidence to support her loss of consortium claim, and no monetary amount was awarded for that claim.


author: I,STEWART, J.

text:
    Larry LEMOINE and Kathryn Lemoine, Plaintiffs-Appellees v. ILLINOIS NATIONAL INSURANCE COMPANY, Allstate Insurance Company, and Jennifer M. Boyer, Defendants-Appellants.
    No. 38,237-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 12, 2004.

      Lunn, Irion, Salley, Carlisle & Gardner, by J. Martin Lattier, Shreveport, for Defendant Appellant Illinois National Ins. Co.
    McGlinchey Stafford, by Michael H. Rubin, Justin M. O’Brien, Baton Rouge, Street & Street, by C. Daniel Street, Monroe, for Plaintiffs Appellees Larry Lem-oine and Kathryn Lemoine.
    G. Larry Arbour, for Defendant Appel-lee Jennifer M. Boyer.
    Before STEWART, GASKINS and PEATROSS, JJ.
   I,STEWART, J.

At issue in this appeal by Illinois National Insurance Company (“Illinois”) is whether the trial court erred both in finding coverage under a personal auto policy for Jennifer Boyer, who was listed as a “driver” on the declarations page of the policy, and in assessing damages for bad faith as provided under La. R.S. 22:1220. Finding that the trial court erred in both respects, we reverse the judgment as it pertains to Illinois.

FACTS

Illinois issued a personal auto policy to Robert Pennington, effective June 5, 1998. Pennington was the named insured on the policy, which he obtained through Hogan Agency, Inc., in West Monroe, Louisiana. On November 1, 1999, after purchasing a Kia Sephia for use by his fianceé, Jennifer Boyer, who was residing with Pennington and his parents, Pennington contacted the Hogan Agency to add the Kia and Boyer to his policy. Accordingly, the Kia was added to the policy as a covered vehicle, and Boyer was added as a driver. These changes were evidenced on the declarations page of the policy. In September 2000, Pennington sold the Kia and had it removed from his policy. Boyer remained on the policy as a driver.

On February 8, 2001, Boyer was involved in an automobile accident while driving a Mercury Grand Marquis owned by Malissa Pennington, Pennington’s sister-in-law. Larry and Kathryn Lemoine, the occupants of the automobile struck by Boyer, filed suit against Boyer, Illinois, and Allstate Insurance Company, Malissa Pennington’s insurer.

19,Although there were substantial damages, the Lemoines’ attorney attempted to settle their claims for the policy limits under both the Allstate and Illinois policies. Illinois refused to settle on the grounds that its policy did not provide coverage for Boyer as she was not an insured under the policy and was not driving a covered vehicle at the time of the accident. Boyer filed a third party demand against Illinois asserting that she was covered under the policy and seeking damages and penalties for Illinois’s breach of the duty of good faith and its refusal to settle the claim.

At trial, and over objections by Illinois, both Pennington and Boyer testified that they believed Boyer was insured under the policy. Pennington testified that he directed the Hogan Agency “to add the Kia car with full coverage and add Jennifer Boyer as the main driver of the Kia car.” He also advised the agent with whom he spoke that Boyer was his fiancé and that she lived with him. He accompanied Boyer to the Hogan Agency where he signed papers and she presented her driver’s license for a copy to be made. Boyer testified that she was present when Pennington called the Hogan Agency and that she believed she was insured as a result of the call. She testified that she saw the declarations page, saw her name on it, and thought she was insured.

Charles Hogan of the Hogan Agency also testified at trial on the issue of coverage under the policy. He testified that Pennington’s policy was amended to add a vehicle and a driver, effective October 30, 1999. A new named insured was not added to the policy. Hogan testified there was nothing indicating a request to add Boyer as a named insured. Moreover, l.qBoyer would not have been listed as the named insured because she was not the owner of the Kia. Hogan explained that Boyer was insured for the two vehicles listed on the policy. Hogan further explained that all drivers in the household are listed in the policy so that the insurer will be aware of the potential drivers of the insured vehicle. Hogan admitted that the policy does not explain the significance of being listed as a driver.

After a bench trial, the trial court awarded damages to Larry and Kathryn Lemoine. The trial court found there to be coverage for Boyer under the Illinois policy and awarded the policy limits to the Lemoines. The trial court found Illinois to have been in bad faith and concluded that the matter could have been settled on Boyer’s behalf but for Illinois’s actions. Granting Boyer’s third party demand against Illinois, the trial court awarded Boyer $462,789.16 representing the uninsured portion of the damages awarded to the Lemoines and imposed a penalty of $5,000 with legal interest. In addition, the trial court assessed Illinois with legal fees totaling $3,945 plus legal interest and all costs of the proceedings. Illinois now appeals the trial court’s judgment.

DISCUSSION

Illinois argues that the trial court erred in finding coverage for Boyer under its policy and in allowing parol evidence on the meaning of the policy. Illinois contends that Boyer is not covered under any provision of the policy. She was neither the “named insured” under the policy, the spouse of the named insured at the time of the accident, nor a family member as that term is defined in the policy. In addition, she was not 14driving a covered vehicle when the accident occurred. Illinois asserts that being listed as a “driver” on the declarations page does not transform that person into a “named insured.”

In support of the trial court’s judgment, Boyer and the Lemoines contend that the policy fails to express the true intent of the parties regarding coverage for Boyer. They also contend that the policy is ambiguous in that it does not define what liability coverage is provided to a named driver. Because of this ambiguity, they assert par-ol evidence was admissible to determine the parties’ intent. They contend that the evidence shows Pennington added Boyer to his policy for purposes of obtaining coverage and that both of them believed she was covered. Moreover, Illinois knew she was his fiancé and that she was living with him. Boyer likens this to being a family member under the policy. Both Boyer and the Lemoines also contend that coverage is mandated under La. R.S. 32:900(C).

Our review of this matter is guided by the principles regarding the interpretation of insurance contracts. These bedrock principles were recently reiterated by the Louisiana Supreme Court in Cadwallader v. Allstate Insurance Company, 2002-1637 (La.6/27/03), 848 So.2d 577, 580:

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts as set forth in the Louisiana Civil Code.... The judiciary’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract....
Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning.... An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd | Bconclusion.... The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent....
Ambiguous policy provisions are generally construed against the insurer and in favor of coverage.... Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer.... That strict construction principle applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable....
If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written.... Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms.... The determination of whether a contract is clear or ambiguous is a question of law.

0Citations omitted.)

In Doerr v. Mobil Oil Corp., 2000-0947 (La.12/19/2000), 774 So.2d 119, 124, opinion correction on rehearing, 2000-0947 (La.3/16/01), 782 So.2d 573, the supreme court noted that where a contract cannot be construed based on its language due to some ambiguity, then the court may look to extrinsic evidence to determine the parties’ intent. Any ambiguities in the policy are to be construed in favor of the insured to effect, not deny, coverage. Id. With these principles in mind, we must now determine whether the trial court erred in finding coverage for Boyer.

Liability Coverage Provided in Policy

Under “Part A-Liability Coverage,” Illinois agreed to “pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident.” The policy defines “insured,” in relevant part, as “you or any ‘family member’...,” or “(A)ny |fiperson using ‘your covered auto.’ “ The policy defines the terms “you” and “your” as referring to the “named insured” and the “spouse if a resident of the same household.” The policy also defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household” and includes both ward and foster child in the definition.

We find these provisions to be clear and unambiguous. Under the explicit terms of the policy, Boyer was neither the named insured, the spouse of the named insured, nor a family member of the named insured. In addition, she was not driving a covered auto. We find no basis for coverage under the liability section of the policy as written. In the absence of a conflict with statutes or public policy, insurers have the same rights as individuals to limit their liability and enforce whatever conditions they impose upon their obligations. Cadwallader, 848 So.2d at 583; Marcus v. Hanover, 98-2040 (La.6/4/99), 740 So.2d 603, 606.

We find no merit in the argument that Boyer should be considered a “family member” under the policy since Illinois knew that she was Pennington’s flaneé and that they lived together. This court previously considered and rejected a similar argument in Crigler v. Crigler, 28,085 (La.App.2d Cir.4/3/96), 671 So.2d 1199, writ denied, 96-1092, 96-1148 (La.6/7/96), 674 So.2d 968, wherein we refused to interpret “spouse” as used in an insurance contract to include one’s paramour or concubine. The Cadivallader court found the term “relative” used in an insurance contract to be unambiguous, to refer to those connected by blood or marriage, and thus to exclude foster children from coverage. In this instance, the policy clearly |7defines “family member.” The definition is unambiguous and not against public policy. It includes only those related by blood, marriage or adoption who reside in the same household, in addition to a ward or foster child. Boyer, who was not married to Pennington when the accident occurred, was not a family member as defined by the policy. Accordingly, we find no basis for coverage under the liability section of the policy.

Designation as Driver

Illinois disputes the argument of Boyer and the Lemoines that the policy is ambiguous because it does not define the term “driver” or explain its significance regarding coverage. Illinois argues that being listed as a “driver” is not a basis for finding coverage for Boyer, who was driving a non-covered vehicle when the accident occurred. We agree.

The declarations page of the policy designates Robert Brent Pennington as the named insured and lists four drivers — Pennington, Boyer, and Pennington’s parents, both of whom are designated as excluded drivers. Our review of the policy reveals the use of the term “driver” in one instance other than on the declarations page. Part F of the policy includes a section addressing termination which provides for cancellation of the policy by the insurer when the driver’s license of “any driver” who either lives with the named insured or who “customarily uses” the covered auto has been suspended or revoked. Nowhere in the policy is the term “driver” used to address coverage.

“Driver” is neither a term of art nor a technical term. Therefore, it is to be given its general popular meaning, namely, a person who drives a |svehicle. See Webster’s College Dictionary (Random House, 1991). This definition comports with the use of the term in the policy. As Charles Hogan’s testimony indicates, all drivers in a household are typically listed on the policy so that the insurer will be aware of potential drivers of the covered automobiles. No doubt this information allows the insurer to assess the risks associated with providing coverage. Although the policy does not include a “driver” as an “insured,” it does extend liability coverage to any person using a covered automobile. While Boyer was not an “insured” under the policy, she was insured while driving a covered vehicle. Unfortunately, she was not doing so when the accident occurred.

In addressing the distinction between a “named insured” and an “insured,” Couch On Insurance, 3d Ed., explains that “named insured” applies only to those specified as such by name in the policy, whereas to be an “insured” under an automobile policy, one must either be the named insured or the driver or occupant of a covered vehicle involved in an accident. Merely being listed in the policy in the status of a driver does not make one a “named insured.” Lee R. Russ and Thomas F. Segalla, 7 Couch On Insurance Ch. 110, § 110.1 (West Group, 3d Ed.1997). As previously discussed, Boyer is listed on the declarations page as a driver. She is not the “named insured,” and she is not covered for purposes of this accident as an “insured” as defined by the policy. The policy does not extend blanket liability coverage to persons listed as drivers.

We find nothing in the policy regarding the scope of coverage or the listing of drivers to be ambiguous. The terms of coverage are clearly set 19forth. There being no ambiguity, it was error for the trial court to admit parol evidence to vary the terms of the policy. The purpose of the testimony by Pennington and Boyer was to show that the policy was to include coverage for Boyer and thus alter the terms of the policy. Even if we were to consider the testimony of Boyer and Pennington, our conclusion would not differ. Although Pennington testified that he believed Boyer would be covered like he was, he also testified that he directed his insurance agent “to add the Kia car with full coverage and add Jennifer Boyer as the main driver of the Kia car.” This is what was added to his policy. The Kia was fully insured, and Boyer was insured for purposes of driving the Kia.

We do not find this to be an instance wherein reformation of the contract is required because the contract fails to express the true intent of the parties as in Perry v. Law, 834 So.2d 523 (La.App. 1st Cir.1976), writ denied, 337 So.2d 527 (La.1976) and 337 So.2d 529 (La.1976), and Collins v. State Farm Mut. Auto. Ins. Co., 188 So.2d 460 (La.App. 3d Cir.1966), two cases cited by the Lemoines. Both of these cases involved the issuance of a new policy to insure an automobile. In both cases, the insurer failed to designate the proper party as the named insured. In this instance, neither Pennington nor Boyer sought a separate policy to insure the Kia or to designate Boyer as the named insured of such policy. The facts show that Pennington only sought to add the Kia to his own policy and to add Boyer as a driver of that vehicle. Boyer was insured for purposes of driving the [inKia or any other covered automobile. This comports with Pennington’s requested additions to his policy of insurance.

Omnibus Coverage Under La. R.S. 32:900(C)

Boyer and the Lemoines also rely on La. R.S. 32:900(C) as a basis for finding coverage. They argue that Boyer was added to the policy as an operator and that this provision mandates liability coverage for operators. Illinois contends that this provision does not apply and relies on Simms v. Butler, 97-0416 (La.12/2/97), 702 So.2d 686 as supporting authority.

La. R.S. 32:900(C) provides as follows:

C. Such operator’s policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him, within the same territorial limits and subject to the same limits of liability as are set forth above with respect to an owner’s policy of liability insurance.

This provision is part of the Louisiana Motor Vehicle Safety Responsibility Law, La. R.S. 32:851, et seq., which provides a mandatory, comprehensive scheme for protecting the public from damage caused by motor vehicles. Simms, 702 So.2d at 687. Under La. R.S. 32:861(A)(1), every self-propelled motor vehicle registered in Louisiana is required to be covered by some form of security, one form of which is an automobile liability policy with liability limits as set forth in La. R.S. 32:900(B)(2), the statutory omnibus clause. Id. In footnotes, the Simms court distinguished an “automobile liability policy” from a “motor vehicle liability policy.” The court noted that, aside from the statutory omnibus clause incorporated by law into all automobile liability policies, the provisions of La. R.S. 32:900 apply only to “motor vehicle Lability policies.” A motor vehicle liability Impolicy is defined as “an owner’s or an operator’s policy of liability insurance, certified ... as proof of financial responsibility.... ” La. R.S. 32:900(A). Because the policy at issue in Simms was an “automobile liability policy,” and not a “motor vehicle liability policy” as defined by La. R.S. 32:900(A), the court found no merit to the argument that La. R.S. 32:900(0) was statutorily incorporated into the policy.

There is no indication that the policy at issue here is anything other than an automobile liability policy as in Simms. As such, La. R.S. 32:900(C) is not statutorily incorporated into the policy and does not mandate coverage for Boyer.

Bad Faith Damages

An insurer owes his insured a duty of good faith and fair dealing. La. R.S. 22:1220(A). This includes an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims. Id. Breach of this duty subjects the insurer to Lability for damages. Id. An insurer may also be penahzed when it arbitrarily, capriciously, and without probable cause refuses to timely settle or pay a claim. La. R.S. 22:658(B)(1).

Part A of the policy pertaining to liability coverage provides that Illinois has “no duty to defend any suit or settle any claim ... not covered under this policy.” Illinois denied coverage in this matter, and its denial was well-founded. Nothing in the policy extends coverage to Boyer, who was not an “insured” under the terms of the policy and who was involved in an accident while driving a non-covered vehicle. Illinois did not act in bad faith in denying coverage and was neither arbitrary, capricious, nor without | ^probable cause in refusing to settle. Having found there to be no coverage for Boyer under the policy for this accident, we find that it was error for the trial court to assess damages, penalties, attorney fees, and costs against Illinois.

CONCLUSION

For the reasons mentioned, we reverse the trial court’s judgment as it pertains to a finding of coverage under Illinois’s policy and awards the policy limits to the plaintiffs, Larry and Kathryn Lemoine. We also reverse that part of the judgment granting Boyer’s third party demand and awarding damages, penalties, costs, and attorney fees. Costs are assessed equally between the Lemoines and Boyer.

REVERSED.

      . In Collins, supra, the ultimate issue of whether the insurance contract would be reformed was not decided. Rather, the summary judgment was reversed, and the matter was remanded to determine whether the parties to the contract intended to provide protection for the party designated as named insured on the policy or the actual driver of the vehicle.


author: JjPETERS, J. h SAUNDERS, J.,

text:
    Loyce Allen RAY v. RODMAR ENTERPRISES, INC.
    No. 03-1133.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 2004.

      Robert E. Guillory, Jr., Guillory & McCall, LLC, Lake Charles, LA, for Defendants/Appellees, Rodmar Enterprises, Inc., American Interstate Insurance Company.
    Loyce Allen Ray, In Proper Person.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   JjPETERS, J.

Loyce Allen Ray appeals a summary judgment in favor of his employer, Rod-mar Enterprises, Inc. (Rodmar Enterprises), and its insurer, American Interstate Insurance Company (American Interstate), dismissing Mr. Ray’s claim for workers’ compensation benefits, ordering forfeiture of Mr. Ray’s right to benefits pursuant to La.R.S. 23:1208, and ordering restitution in the amount of $117,149.54 for amounts paid by American Interstate. For the following reasons, we reverse and remand for further proceedings.

Mr. Ray contends that he sustained a compensable accident on March 25, 1999, while working for Rodmar Enterprises. Initially, American Interstate paid weekly benefits and medical expenses associated with the alleged accident. At some point, American Interstate became suspicious of Mr. Ray’s continued complaints of disability and retained an investigator to evaluate the overall situation. American Interstate claims that through this process it became aware that Mr. Ray was engaged in physical activities that would preclude his right to continued workers’ compensation benefits. Among other things, American Interstate claims to have obtained information that Mr. Ray participated in the construction of a carport for the grandparents of his wife, Tandi, in Gerty, Oklahoma.

With this information in hand, American Interstate caused Mr. Ray’s deposition to be taken. In response to specific questions concerning the carport construction, Mr. Ray specifically denied doing anything in the construction other than watching the trusses being put in place. The taking of other depositions revealed an entirely different picture of Mr. Ray’s participation in the construction project. The deponents in those depositions testified that Mr. Ray directly participated in the construction project, even to the extent that he worked on the roof installation. Furthermore, some 1 gof those deposed testified that Mr. Ray had offered them money to lie at the depositions. Armed with this sworn testimony and relying on the provisions of La.R.S. 23:1208, Rodmar Enterprises and American Interstate filed a motion for summary judgment seeking to have Mr. Ray’s claim for workers’ compensation benefits dismissed and seeking reimbursement of the $117,149.54 paid in weekly benefits and medical expenses. They submitted the following, among other items, in support of their motion:

1. Deposition of Loyce Allen Ray, taken June 18, 2002.
2. Deposition of Dale Sullivan, Mrs. Ray’s grandfather, taken February 17, 2003.
3. Deposition of Lola Sullivan, Mrs. Ray’s grandmother, taken February 17, 2003.
4. Deposition of Jerry Wayne Sanders, Mrs. Ray’s stepfather, taken February 17, 2003.
5. Deposition of Diane Sanders, Mrs. ■ Ray’s mother, taken February 17, . 2003.
6. Deposition of Steven Ray Gatlin, ■husband of Mrs. Ray’s half-sister, taken February 17, 2003. 1
7. Deposition of Tesha Gatlin, Mrs. Ray’s half-sister, taken February 17, 2003. .
8. Affidavit of Dawn Neville, an American Interstate case manager.

In opposition to the motion for summary judgment, Mr. Ray attempted to introduce a written statement purportedly made by his wife as well as a photograph of his wife and himself. The workers’ compensation judge (WCJ) refused to admit the written statement because it was not in affidavit form. Mr. Ray indicated that the photograph contradicted testimony of his wife’s mother and stepfather. The WCJ refused to admit it into evidence as well.

Louisiana Revised Statutes 23:1208(A) provides that “[i]t shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or-for any other person, to willfully make a false statement or representation.” In addition to possible criminal | aprosecutión as provided for in La.R.S. 23:1208(C), a claimant who willfully makes a false statement or representation as defined by La.R.S. 23:1208(A) -may be required to forfeit the right to benefits associated with the claim. La.R.S. 23:1208(E). Also, a claimant who commits fraud may be required to make restitution of all benefits paid up to the time the employer became aware of the fraud and to pay a civil penalty. La.R.S. 23:1208(D).

At the hearing on the motion for summary judgment, counsel for Rodmar Enterprises and American Interstate stated to the WCJ that “you either believe these four people, these four adults, subpoenaed under oath or, as Mr. Ray would have you believe, you — you don’t believe your lying eyes.” Thus, he made it clear that the motion survived or failed on the credibility of the witnesses deposed. The WCJ agreed by providing the following oral reasons in support of the summary judgment:

Well, I have read the depositions of all these people and they pretty much put Mr. Ray’s claim .for compensation benefits in — in a bucket.
They — Mr. Ray testified in his deposition taken June 18th of 2002 that he did not participate in any manual fashion in the — assisting his wife’s grandfather build some type of carport structure. Although, everyone else testified that, in fact, Mr. Loyce Ray was on the roof of that structure and did manual labor by installing some type of sheet metal, I believe it was, or tin product or roof cap covering and that Mr. Ray was the only one capable at that time of doing that type of activity.
Moreover the testimony from these persons are that when they were first subpoenaed to give depositions in Mr. Ray’s claim for compensation benefits that there was conversation between Mr. Loyce Ray and a couple of these deponents that Mr. Ray offered them a hundred dollars to testify falsely about his participation in the construction of this carport structure.
There is further testimony in the depositions that Mr. Ray has made statements over time that he — that he has no injury and that he has made this claim because he realizes the difficulty of physicians to diagnose a back injury and that he’s only made this claim to get back at this employer because he believes that somehow they wrongfully terminated him.
The deponents further testify that at no time in their association with Mr. Ray have they ever seen him act disabled, that he has moved |4on several occasions furniture and large appliances without difficulty.
The purpose of a motion for summary judgment, it’s — it’s a procedure ... designed to secure just and speedy and inexpensive determination in an action. The burden remains upon the mover. And the Court is to consider the pleadings, depositions, answers to interrogatories and admissions on file together with affidavits to determine whether there’s a genuine issue of material fact.
And I’m to consider this in — in light of the relevant law. The relevant law in workers’ compensation with respect to a 1208 claim is found in Revised Statute 23:1208 which states in section “A” that it shall be unlawful for any person for the purpose of obtaining or defeating any benefit or payment under the provisions of this chapter, either for himself or for any other person, to willfully make a false statement or representation.
And the only thing the Court has to find or-is that there was a false statement made and that it was made for the purposes of obtaining compensation benefits. ...
In order to find — sustain a finding under 23:1208 the Court must determine that there’s been a false statement or misrepresentation made; two, that it was willfully made, the statement or misrepresentation; and, three, that the statement was made or misrepresented for the purpose of obtaining workers’ compensation benefit payments and that there is no requiring under 23:1208 of a showing of prejudice to an employer and that this statute is penal in nature and strictly construed.
Given the depositions of these individuals who are in-laws of Mr. Ray and who appear to have been personally present, some of which have — were personally present during the construction of the carport structure, and the Court being particularly impressed with the deposition of Ms. Tandi Ray’s stepfather and the — given the fact that, according to him in his deposition, he was a former law enforcement person and specifically informed Mr. Loyce Ray that he would at no time give any false testimony in support of Mr. Ray’s claim, the Court finds that the employer has shown under the requirements for a motion for summary judgment that Mr. Ray has violated Revised Statute 23:1208 and that there is a forfeiture of compensation benefits in this matter.
The affidavit of Ms. Dawn Neville, which is contained in the- — -which was executed on April 11th of 2003 and filed with this Court on April 16th of 2003, and all the offerings of the, mover are admitted into evidence indicates there— there — there has been paid on behalf of the employer and insurance company to Mr. Ray the sum of one hundred and seventeen thousand one hundred and forty-nine dollars and fifty-four cents.
And the Court would order reimbursement of that entire sum to the employer and payor of benefits.

We agree that the evidence presented in support of the motion for summary judgment overwhelmingly establishes, if believed, that Mr. Ray did perform | Ksubstantial manual labor on the carport construction project and that he sought to bribe others who were aware of his activities with money in exchange for their false testimony in that regard. However, Mr. Ray’s testimony, if believed, establishes that he did not perform substantial manual labor on- the construction project.

As urged to do so by counsel for Rodmar Enterprises and American Interstate, the WCJ made specific credibility calls in reaching its decision. Credibility issues have no place in summary judgment procedure. Lexington House v. Gleason, 98-1818 (La.App. 3 Cir. 3/31/99), 733 So.2d 123, turit denied, 99-1290 (La.6/25/99), 746 So.2d 603. “It is not the court’s function on a motion for summary judgment to determine or even inquire into the merits of the issues presented. While deposition testimony may be used to support or oppose a motion for summary judgment, it may not be weighed.” Id. at 126 (citation omitted). Had this case come before us in the posture of an appeal from a judgment on the merits, we would not have hesitated to affirm. However, because the ultimate conclusion that Mr. Ray willfully made false statements for the purpose of obtaining benefits required the weighing of evidence and the making of credibility calls in the context of a motion for summary judgment, we find that the WCJ erred in granting summary judgment.

DISPOSITION

For the foregoing reasons, we reverse the summary judgment below and remand for further proceedings: We assess costs of this appeal to Rodmar Enterprises, Inc. and American Interstate Insurance Company.

REVERSED AND REMANDED.

SAUNDERS, J., dissents and assigns written reasons.

h SAUNDERS, J.,

dissenting.

I would affirm the trial court, see (Girard v. Courtyard by Marriot), 02-105 (La. App. 3 Cir. 10/2/02), 827 So.2d 578.


author: |, SULLIVAN, Judge.

text:
    Richard H. LEE, III v. Jane LEE, Born Barham.
    No. 03-1483.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 2004.
    Michael R. Garber, Attorney at Law, Charles, LA, for Defendant/Appellant: Jane Lee, born Barham.
    Walter M. Sanchez, Lorenzi, Sanchez & Palay, L.L.P., Lake Charles, LA, for Plaintiff/Appellee: Richard H. Lee, III.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   |, SULLIVAN, Judge.

Jane Lee appeals the trial court’s judgment which awards her former husband, Richard Lee, monies for payments he made on her separate debts with his separate funds. For the following reasons, we reverse in part, affirm in part, and render.

Facts

Richard and Jane were married on July 29, 1976. They were divorced on September 14,1999. Prior to their marriage, they contracted to live under a separate property regime and did so throughout their marriage. In 1988, they purchased an interest in the Audubon Agency, an insurance business. Richard purchased a 26% interest, and Jane purchased a 25% interest in the business. To finance the purchase, Richard borrowed $38,250.00 individually. Jane admitted in requests for admissions that none of her separate funds were used to repay the debt. However, the parties stipulated that payments on the loan were made with funds from an account into which they both deposited funds. Payments made from this “joint account” on Jane’s behalf totaled $18,750.00, representing her 25% interest in the agency; payments on Richard’s behalf totaled $19,500.00, representing his 26% interest in the agency.

During their marriage, Richard and Jane lived in Jane’s home. At times, Richard deposited separate funds in the amount of $8,933.54 into Jane’s separate account from which her mortgage payments were paid. Additionally, checks totaling $19,890.00 issued on the Audubon Agency account were deposited into Jane’s separate account to make her mortgage payments. Rick’s 26% interest in these agency funds equals $10,140.00.

After the divorce, Richard filed suit, seeking to recover his separate funds paid on the Audubon Agency loan, which represent Jane’s interest in the agency and his separate funds paid on Jane’s mortgage. Jane answered, denying any debt was owed Rand seeking set-off for amounts she paid toward their joint obligations and toward Richard’s separate obligations.

After a hearing at which the parties stipulated to the above information, the trial court awarded Richard $9,375.00 for payments made on Jane’s behalf on the Audubon Agency loan, $8,933.54 for payments made with his separate funds on Jane’s mortgage, and $10,140.00 representing his interest in the Audubon Agency funds paid on Jane’s mortgage. On August 5, 2003, the trial court signed a judgment in Richard’s favor in the amount of $28,448.54. Jane appeals, assigning as error all of the trial court’s awards.

Discussion

Audubon Agency Loan

Jane first assigns as error the $9,375.00 awarded to Richard for payments made on the Audubon Agency loan. She asserts that the trial court’s award results in her paying $28,125.00 of the loan and Richard only paying $9,375.00.

The parties stipulated that the funds deposited into the account from which payments were made on this loan were “joint funds” because each party had deposited funds into the account and neither could establish what amounts were their separate funds. Accordingly, Richard did not prove what amount of his separate funds was used to make payments on Jane’s behalf. Furthermore, Jane pleaded set-off in her answer, and she is entitled to credit for her separate funds used to pay on Richard’s portion of this indebtedness. For these reasons, we reverse the trial court’s award of $9,375.00 to Richard.

| aMortgage Payments on Jane’s Separate Property

Jane does not deny that Richard’s separate funds and Audubon Agency funds in which he had an interest were used to make payments on her home mortgage. Rather, she asserts that he is not entitled to recover 100% of those funds. This issue is not specifically addressed by the Louisiana Civil Code.

Jane argues that the reimbursement rules applicable to community property regimes also apply to Richard’s claims. Relying on jurisprudence concerning reimbursements for payments made on community obligations with separate funds and for payments made on separate obligations with community funds, she contends that Richard is only entitled to recover the amount which represents the principal reduction on her mortgage, not interest, taxes, or insurance also paid in conjunction with her mortgage. In Willis v. Willis, 454 So.2d 429 (LaApp. 3 Cir. 1984), this court held that only principal reductions made on a spouse’s separate mortgage with community funds, when the mortgaged property was used as the community’s residence, were reimbursable to the spouse obligated under the mortgage. The court reasoned: 1) the spouse, whose separate mortgage was paid with community funds, had not reserved the fruits and revenues of his separate property, so they belonged to the community; 2) use of that spouse’s residence by the community was “an enjoyment of the ‘natural and civil fruits’ of the separate property”; 3) the payment of interest on the separate mortgage was the cost to the community for using the separate property; and 4) payment of principal on the separate mortgage “went to the satisfaction of a separate obligation under article 2364, as well as to the ‘acquisition ... or benefit of the separate property’ under article 2366, and did not benefit the community at all.” Id at 431.

RJane and Richard opted for a separate property regime. Therefore, there were no “natural and civil fruits” of Jane’s separate property which became community property, and this analysis is inapplicable to Richard’s claims.

Jane also cites Hawes v. Hawes, 94-1088 (La.App. 1 Cir. 4/7/95), 655 So.2d 357, writ denied 95-1904 (La.11/3/95), 661 So.2d 1388, and Fogg v. Fogg, 571 So.2d 838 (La.App. 3 Cir.1990), writ denied, 575 So.2d 372 (La.1991), in support of her position. In these cases, the courts held that La.Civ.Code art. 2367.1 applies to divorced persons who lived under a community property regime and to divorced persons who lived under a separate property regime. Article 2367.1 provides:

Buildings, other constructions permanently attached to the ground, and plantings made on the land of a spouse with the separate assets of the other spouse belong to the owner of the ground. Upon alienation of the land, legal separation, or termination of the community, the spouse whose assets were used is entitled to reimbursement for the amount or value that the assets had at the time they were used.

However, a literal reading of Article 2367.1 indicates that it is not applicable to the facts presented by Richard’s claims.

Richard contends that his claims should be governed by general principles of law. In Katheeine S. Spaht & W. Lee HaRGRAve, Louisiana Civil Law Treatise, Matrimonial Regimes, § 7.17, at p. 413 (2d ed.1997), the authors observed:

Despite [jurisprudence which applies reimbursement principles to the use of a spouse’s separate property to satisfy a separate obligation of the other spouse], the only explicit legislative authority for applying reimbursement principles when a spouse’s separate property benefits the other spouse’s separate property is Article 2367.1. Rather than apply Article 2367.1, which clearly does not apply to the use by a spouse of separate property to satisfy a separate obligation of the other spouse or to spouses who have a separation of property regime, the court should rely on general principles of law to permit recovery — such as mandate, management of the affairs of another (negotiorum gestio), or unjust enrichment.

|sIn Toups v. Toups, 97-393 (La.App. 3 Cir. 10/8/97), 702 So.2d 822, this court rejected the argument that, pursuant to Hawes, 655 So.2d 357, and Fogg, 571 So.2d 838, all of the reimbursement rules applicable to community property regimes are applicable to separate property regimes. In Toups, the former wife claimed that during the marriage her husband had undertaken the management of her separate property, had mismanaged it, and was liable to her for his mismanagement. The trial court granted the former husband’s exception of no cause of action, agreeing that the former wife had failed to allege a fiduciary relationship which required him to make an accounting to her.

The former wife had asserted at the trial level that her claim presented an issue of negotiorum gestio. Because she had consented to her husband’s management of her property, this court determined negoti-oi'um gestio was inapplicable. See La.Civ. Code art. 2292, which requires that one person act on another’s behalf without his authority. On appeal, she asserted that her former husband was liable to her under the principle of mandate. After distinguishing Hawes, 655 So.2d 357, and Fogg, 571 So.2d 838, and considering Professors Spaht and Hargrave’s observations, this court remanded the matter to allow her to amend her pleadings to allege facts which stated a cause of action under the law of mandate.

Pursuant to our decision in Toups, 702 So.2d 822, we decline to apply the provisions governing community property regimes to the claims presented herein and follow the recommendations of Professors Spaht and Hargrave instead. Accordingly, we now consider which general principles of law govern Richard’s claims.

Mandate is “a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” |fiLa.Civ.Code art. 2989. Negotiorum ges-tio, or management of affairs, is “when a person, the manager, acts without authority to protect the interests of another, the owner, in the reasonable belief that the owner would approve of the action if made aware of the circumstances.” La.Civ.Code art. 2292.

The evidence established that Richard’s separate funds and the Audubon Agency funds were deposited into Jane’s account and that her mortgage payments were made from that account. There is no evidence of who wrote the checks for the payments, but Jane does not assert that she did not consent to the payments. Therefore, negotiorum gestio is inapplicable. See La.Civ.Code art. 2292. Furthermore, there is no evidence that Jane authorized Richard to manage the account from which her mortgage payments were made; therefore, Richard was not her mandatary. See La.Civ.Code art. 2989.

Enrichment without cause is defined by La.Civ.Code art. 2298:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.
The extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.

The situation presented here falls within the parameters of Article 2298: Jane was enriched by Richard’s contributions toward payments on her mortgage; the enrichment was not the result of a valid juridical act; and the law does not provide Richard any other remedy. Richard and Jane could have, but did not, address the l^claims presented here in their contract or in an amendment to their contract. We conclude that Richard is entitled to recover $8,933.54, all of his separate funds paid on Jane’s mortgage, and $10,140.00, which represents his interest in the Audubon Agency funds used to pay on Jane’s mortgage.

Decree

The trial court’s award of $9,375.00 in favor of Richard Lee is reversed; the awards of $8,933.54 and $10,140.00 in his favor are affirmed. Costs are assessed one-third to Richard Lee and two-thirds to Jane Lee.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.


author: SMITH, Presiding Justice,

text:
    The PUBLIC EMPLOYEES’ RETIREMENT SYSTEM v. John P. FREEMAN.
    No. 2002-CA-01942-SCT.
    Supreme Court of Mississippi.
    March 18, 2004.

      Mary Margaret Bowers, attorney for appellant.
    George S. Luter, Jackson, attorney for appellee.
    Before SMITH, P.J., COBB and CARLSON, JJ.
   SMITH, Presiding Justice,

for the Court.

¶ 1. This Court in Freeman v. Pub. Employees’ Ret. Sys. of Miss., 822 So.2d 274 (Miss.2002) (Freeman I), concluded that the decision of the Public Employees’ Retirement System (PERS) to terminate John P. Freeman’s disability benefits was not supported by substantial evidence. Id. at 279. Thus, we held:

[T]he judgments of the circuit court and PERS are reversed, and this case is remanded to the circuit court with instructions to remand to PERS for reinstatement of Freeman’s disability status and his benefits, with back pay from the date of the termination of those benefits. In accordance with Section 25-11-113(3) and this opinion, PERS, at its option, may conduct a new, fair and impartial hearing evaluating Freeman’s disability after he has been thoroughly examined by appropriate medical personnel.

This Court’s mandate to the circuit court provided: “You are commanded, that execution and further proceedings as may be appropriate be forthwith be had consistent with this judgment and the Constitution and Law of the State of Mississippi.”

¶ 2. Upon remand, on July 25, 2002, the circuit court ordered PERS to reinstate Freeman’s disability status and benefits with back pay. However, the next day, Freeman’s attorney submitted a proposed amended order that provided for the award of interest on the unpaid benefits. According to PERS, it did not “become aware” of this order until over a month after it was entered. However, the record indicates that PERS had at least some knowledge of Freeman’s proposed amendment to the order. PERS submitted a letter opposing the amended order on July 26, 2002, the same day Freeman’s attorney sent the proposed amendment. Despite PERS’ objections, the circuit court remanded the case and ordered reinstatement of Freeman’s disability status and benefits with back pay. In addition, the circuit court ordered PERS to pay “legal interest at the rate of 8% to be calculated from the date of the first reinstated monthly benefit which is August 1, 1998.” PERS appeals and raises the following issues:

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM’S MOTION FOR RECONSIDERATION.
II. WHETHER THE CIRCUIT COURT ERRED IN ENTERING ITS AMENDED REMAND ORDER SINCE IT WENT BEYOND THE SCOPE OF THIS COURT’S MANDATE AND AWARDED INTEREST WHERE NO STATUTORY AUTHORITY PERMITS THE IMPOSITION OF INTEREST IN APPEALS SUCH AS THAT BEFORE THE COURT.

DISCUSSION

¶ 3. Because the two issues PERS raises are intertwined, they will treated together herein. PERS does not specifically address Issue I in its brief, but the thrust of its argument is that the circuit court erred in denying the motion for reconsideration because the court was without power to order the payment of interest. PERS asserts that the circuit court lacked this power because there is no provision under Mississippi law that empowers a court to grant interest in a case such as this. In response, Freeman contends that the circuit court could lawfully grant interest because Freeman and PERS are, in effect, involved in a contractual relationship. Thus, pursuant to Miss.Code Ann. § 75-17-7 (Rev.2000), the circuit court in this case could grant interest on the back pay of Freeman’s disability benefits. Alternatively, Freeman asserts that the doctrine of unjust enrichment supports the circuit court’s order to pay interest on the benefits.

¶ 4. Under well-settled Mississippi law, the award of prejudgment interest is in the discretion of the trial court, regardless of the statute under which such interest is sought. United States Fid. & Guar. Co. v. Conservatorship of Melson, 809 So.2d 647, 662 (Miss.2002). Miss.Code Ann. § 75-7-17 provides:

All judgments or decrees on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at the per an-num rate set by the judge hearing the complaint from a date determined by such judge to be fair, but in no event prior to the filing of the complaint,

(emphasis added). As this Court noted in Pub. Employees’ Ret. Sys. of Miss. v. Langham, 812 So.2d 969, 974 (Miss.2002), Section 75-7-17 “sets out the limited instances in which a claimant has a right to prejudgment interest.”

¶ 5. Before the court below, Freeman relied on Langham for the contention that interest was payable on his disability benefits. In Langham, the plaintiffs husband, a Mississippi Highway Patrol (“the Patrol”) officer, was killed in the line of duty. 812 So.2d at 971. In 1997, Langham became aware of an amendment to Miss. Code Ann. § 25-13-13 which increased the benefits available to widows of highway patrol officers killed in the line of duty. Id. Seeking increased survivor benefits for her stepchildren (the deceased officer’s children) and interest on unpaid benefits, Langham sued PERS and the Patrol in the Chancery Court of Covington County based on this change in the law. Id. The court entered a judgment in favor of Lang-ham. Id. at 970. On appeal, the only appellant in Langham was the Patrol because PERS agreed to pay whatever amount the Patrol decided Langham was entitled. Id. We note also that Langham did not involve disability benefits, as does the ease at bar.

¶ 6. “The Patrol and PERS are completely separate retirement systems, each with their own administrative board.” Id. at 972. PERS merely administers the Patrol’s retirement system. Id. at 970. The Patrol was organized specifically to “provide a separate retirement system for the highway safety patrol.” Id. Further, there is no statutory scheme for administrative appeals under the Patrol’s retirement system. Id. Langham afforded the Patrol an opportunity to render a decision on the matter by meeting with the Patrol administrative board at least twice and corresponding/meeting with other people connected with the board. Id. Because the Patrol rendered no decision, Langham “properly chose to file suit in chancery court.” Id. We noted that “the Patrol was ‘designed to provide more liberal benefits for the highway safety patrolmen’ than those set out in the statutes relating to PERS.” Id. at 974 (quoting Miss.Code Ann. § -25 — 13—1).

¶ 7. The Patrol in Langham argued that nothing authorized it to pay interest on the “late payments.” Despite the Patrol’s arguments against interest payments, this Court in Langham held that the award of interest was appropriate. Id. We held that although the award of interest was proper, the trial court erred in ordering six percent interest because Miss.Code Ann. § 75-17-1 mandates that the “ ‘legal rate of interest on all notes, accounts and contracts shall be eight percent (8%) per annum.’ ” Id. at 975 (quoting Miss.Code Ann. § 75-17-7).

¶ 8. Here, in its letter opposing the amended remand order, PERS argued that Langham was inapplicable to the case at bar because PERS was dismissed early in the Langham proceedings. Moreover, PERS asserted that Langham is distinguishable because it was a civil action and the controversy here is an appeal of an administrative decision. We agree.

¶ 9. In addition, PERS noted that Freeman failed to raise the issue of interest in the proceedings before PERS and the court below. This Court has repeatedly held that an issue not raised before the lower court is deemed waived and is procedurally barred. Davis v. State, 684 So.2d 643, 658 (Miss.1996); Cole v. State, 525 So.2d 365, 369 (Miss.1987). We, therefore, apply the procedural bar.

¶ 10. Moreover, our mandate in Freeman I falls under the law of the case doctrine. This doctrine has been described as follows:

The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure.

Moeller v. Am. Guarantee & Liab. Ins. Co., 812 So.2d 953, 960 (Miss.2002) (quoting Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1376 (Miss.1990)). According to the mandate rule, a specific application of this doctrine, a mandate issued by this Court “ ‘is binding on the trial court on remand, unless the case comes under one of the exceptions to the law of the case doctrine.’ ” Moeller, 812 So.2d at 960 (quoting Simpson, 564 So.2d at 1377). These exceptions include “ ‘material changes in evidence, pleadings or findings,’ ” Moeller, 812 So.2d at 960 (quoting Cont’l Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 480, 142 So.2d 200, 207 (1962)), and “the need for the Court to ‘depart from its former decision’ ‘after mature consideration’ so that ‘unjust results’ will not occur.” Moeller, 812 So.2d at 961 (quoting Brewer v. Browning, 115 Miss. 358, 364, 76 So. 267, 269 (1917)).

¶ 11. Our mandate in this case did not address interest. Rather, we simply ordered reinstatement of Freeman’s disability status and his benefits with back pay only. While it ordered reinstatement of Freeman’s status and benefits, the circuit court in addition ordered interest on the benefits. The circuit court, therefore, exceeded the scope of our mandate. In addition, we find that no applicable exception to the law of the case doctrine in the case sub judice.

CONCLUSION

¶ 12. Because he failed to raise the issue of interest in the proceedings before PERS and the court below, Freeman’s claim for interest is procedurally barred. Furthermore, under the mandate rule, our original mandate in this case in Freeman I was binding on the court below. That mandate did not address interest at all. Thus, the circuit court erred in exceeding the scope of our mandate in this case. Therefore, we reverse and render the circuit court’s judgment on remand from Freeman I only to the extent that it awarded interest.

¶ 13. REVERSED AND RENDERED.

PITTMAN, C.J., WALLER, P.J., COBB, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Freeman correctly points out that under URCCC 11.05 it is the responsibility of the circuit clerk — not the circuit court — to mail counsel of record notice when an order has been entered.

      . It is unclear to what extent the circuit court relied on Langham in its decision to order the payment of interest since the court did not render a written opinion upon remand. However, the court amended its order to include the payment of interest after receiving Freeman's letter in which he raised Langham.