author: SCOFIELD, Judge.

text:
    STATE of Louisiana v. Vernon Leon COX.
    No. 04-42.
    Court of Appeal of Louisiana, Third Circuit.
    June 16, 2004.

      Karen G. Arena, Metairie, LA, for Defendant/Appellant: Vernon Leon Cox.
    Van H. Kyzar, District Attorney, Steven D. Crews, Asst. District Attorney, Natchi-toches, LA, for Appellee: State of Louisiana.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

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

   SCOFIELD, Judge.

On January 6, 2000, the Defendant, Vernon Cox, and co-defendant, Elbertine Demery Sykes, were charged by grand jury indictment with one count of first degree murder, a violation of La.R.S. 14:30. The Defendant entered a plea of not guilty on January 21, 2000. At a hearing held October 18, 2002, the State orally moved to amend the bill of indictment to charge the Defendant with second degree murder, a violation of La.R.S. 14:30.1. The court accepted the amendment.

In a separate proceeding, Elbertine Sykes was charged as a principal to second degree murder, a violation of La.R.S. 14:24 and La.R.S. 14:30.1. Mrs. Sykes was tried in a jury trial which began on July 15, 2002. On July 18, 2002, she was found guilty of second degree murder and sentenced to life imprisonment. Her conviction and sentence were affirmed by this court in State v. Sykes, 03-397 (La.App. 3 Cir. 10/8/03), 857 So.2d 638, writ denied, 03-3429 (La.4/2/04), 869 So.2d 875.

The Defendant’s jury trial began on March 17, 2003. On March 19, 2003, the jury returned a verdict of guilty as charged. A Motion for New Trial was filed on July 11, 2003, and denied at a hearing held September 12, 2003. On the morning he was to be sentenced, September 26, 2003, the Defendant, pro se, filed a Motion in Arrest of Judgment, which the trial court denied. The Defendant was then, immediately, sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. Defense counsel objected to the sentence and filed a Notice of Appeal in open court.

FACTS:

The victim of the homicide was William Sykes, the husband of Elbertine Sykes, their having been married since March of 1998. The Defendant had previously been married to Mrs. Sykes. Vivian Cahee, the Defendant’s twin sister, testified that in early 1999, the Defendant had lived with her in Fresno, Texas, and that in April of that year, Mrs. Sykes had visited the Defendant in Ms. Cahee’s Texas home. Ms. Cahee indicated that during Mrs. Sykes’ stay, the Defendant and Mrs. Sykes had become amorous and Mrs. Sykes had referred to the Defendant as her husband. Ms. Cahee testified that the Defendant told her he was still in love with Mrs. Sykes and the two were going to get back together.

At some point early in 1999, the Defendant moved out of Ms. Cahee’s Texas residence. In June of 1999, he called her from Alexandria, Louisiana, and told her that Elbertine Sykes wanted him to kill her husband, William. Ms. Cahee testified that the Defendant was upset by Mrs. Sykes’ request.

William Sykes reportedly went hunting with an unidentified nephew at 6:00 a.m. on November 10, 1999. The next day, November 11, 1999, Mrs. Sykes reported her husband missing. Mr. Sykes was found dead on Lime Kiln Road in Natchi-toches Parish on November 13, 1999. The Defendant was convicted of killing Mr. Sykes.

Defendant appeals arguing two assignments of error:

1. The trial court committed reversible error in allowing inadmissible hearsay evidence to be presented to the jury.
2. The evidence is insufficient to sustain the verdict.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, the Defendant contends the trial court committed reversible error in allowing inadmissible hearsay evidence to be presented to the jury. The Defendant specifically contends that the out of court statement Elbertine Sykes made to Detective Michael Wilson on November 18, 1999, was hearsay and its being admitted into evidence violated his constitutional right to confront and cross-examine the witnesses against him. Additionally, he asserts that he participated in no conspiracy with Sykes; that her statement was not made in furtherance of any conspiracy; and therefore, he argues, the statement was not admissible under the co-conspirator exception to the hearsay rule as set out in La.Code Evid. art.'801(D)(8)(b), which provides in pertinent part:

D. Statements which are not hearsay. A statement is not hearsay if:
(3) Relational and privity admissions. The statement is offered against a party, and the statement is:
(b) A statement by a declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established....

The State filed a motion asking the trial court to adopt the ruling it made in Elber-tine Sykes’ trial holding that a prima facie case of conspiracy was proven. Court minutes in the case before us from October 18, 2003, read in pertinent part as follows:

Mr. Crews advised court that also pending was a Motion for the Court to adopt the ruling the Court made about primae [sic] facie conspiracy in the Elbertine Sykes’ case and to adopt it in this case since the evidence is the same, this co-defendant, same charge, same action.
Mr. Crews stated he doesn’t think Mr. Brewer opposes that Motion either.

We find there is no clear expression in the record that Defense counsel agreed that the evidence in the Elbertine Sykes’ trial could establish a prima facie case of conspiracy in the case at hand. The record contains a rather vague minute entry suggesting that counsel for Defendant “responded negatively” when this issue was raised but whatever that means, it does not constitute a stipulation or agreement by counsel that the ruling in Mrs. Sykes’ trial could be adopted in this case.

In State v. Menard, 02-1182, pp. 33-34 (La.App. 3 Cir. 5/7/03), 844 So.2d 1117, 1137, the court observed:

Louisiana Code of Evidence Article 801(D)(3)(b) requires not only the establishment of a prima facie case of conspiracy, but also a finding that the statement was made while participating in the conspiracy and in furtherance of the objective of the conspiracy. Such findings are impossible without knowing the substance of the statements themselves and the context within which they were made.

See also State v. Dupree, 377 So.2d 328 (La.1979). Clearly then, before such a statement can be admitted into evidence, the State has to establish by competent evidence (1) a prima facie case of conspiracy, (2) that the statement sought to be introduced was made while the conspiracy was ongoing, and (3) that the statement itself was made in furtherance of the conspiracy.

The State argued that Mrs. Sykes’ statement was admissible for the following reasons:

[T]he statement was the statement of Elbertine Sykes given to Detective Michael Wilson, which in fact implicated Vernon Cox, but the basis for introducing the statement is, Number 1, it contained information Elbertine said that this was supposed to be a robbery that resulted in an accidental killing. And the information she provided is exactly consistent with the information the defendant gave to another witness who is going to be testifying, Kenny Rhodes, same information. It was ... supposed to be a robbery, not supposed to be a murder. But of course, under our law, that doesn’t matter, but obviously the co-conspirators did not know that, and it’s my position that that’s a continuation of the conspiracy, where conspiracy was to play this off as a robbery that went bad for an armed robbery as opposed to a murder. And that way it is consistent. ... In this case, there is information in there about a gun that was obtained from Jo Ann Williams, which is where Vernon Cox was living admittedly [sic]. That there is no way Elbertine Sykes could have possibly known that, except from information supplied by Vernon Cox. And for that reason we’ve ask that the statement be introduced.

Defense counsel made the following argument regarding the admissibility of Mrs. Sykes’ statement:

Your Honor, as I indicate in chambers, I vehemently object to the introduction of this statement. I think uh .... uh ... first of all, let me note for the record, that the Court’s determination as to the conspiracy that was made in the Elbertine Sykes case, uh ... and it is my understanding that that is applied uh, to the case of Vernon Cox. Uh ... secondly, more importantly, I think it is a clear violation of the confrontation clause, uh ... to introduce this statement without the ability to confront and cross examine her ... I think it’s a clear violation ... of her unconscious constitutional rights, and the U.S. Constitution and the Louisiana Constitutional. Now the Court has informed me that I would be able to introduce portions of her trial testimony. And I want to address that. One of the concerns I have is Elbertine Sykes has made, as many as I can tell, three (3) or four (4) different statements. And each of them is inconsistent with the remainder of them. So, I think the statement in and of itself is a question of reliability. I understand that Mr. Crews believes it’s corroborated by the testimony of Kenney Rhodes, which in turn, is a question of reliability. So, I guess my major concern, and my major objection is that it clearly violates the right to confrontation and cross examination.

The court then made the following ruling (emphasis ours):

[M]y opinion on this is the same as it was in that case concerning the admissibility of statements of co-conspirators, and this is that they are admissible uh, to show evidence of a conspiracy in the intent to further a conspiracy. So, I will permit the statement to be presented to the jury. Uh ... I will permit the defense to present appropriate parts of the testimony of Elbertine Sykes by way of her trial transcript, that uh ... that are inconsistent with that ... uh, with the statement that the State intends to offer.

As stated above, the statement of a co-conspirator is admissible under La. Code Evid. art. 801(D)(3)(b), only after the State first proves a prima facie case of conspiracy and that the statement was made in furtherance of the objective of the “common enterprise and during its continuance.” State v. Dupree, 377 So.2d 328, 330 (La.1979). “A prima facie case of conspiracy is presented when the state introduces evidence which, if unrebutted, would be sufficient to establish the facts of the conspiracy. State v. Nall, 439 So.2d 420, 425 (La.1983).” State v. Lobato, 603 So.2d 739, 746 (La.1992).

Before a co-conspirator’s declaration may be introduced under this exception, a prima facie case of conspiracy must have been established and it must be shown that the declaration was made in furtherance of the common enterprise and during its continuation. State v. Carter, 326 So.2d 848 (La.1975); State v. Kaufman, 331 So.2d 16 (La.1976); State v. Hodgeson, 305 So.2d 421 (La.1975); State v. Michelli, 301 So.2d 577 (La.1974); Comment, The Co-Conspirator Exception to the Hearsay Rule The Limits of Its Logic, 37 La.L.Rev. 1101 (1977); C. McCormick, Evidence, § 267 (2d ed.1972), Introduction of a hearsay declaration without fulfillment of these requisites violates both the statute which prohibits the admission of hearsay evidence not falling within any exception to the rule, La.R.S. 15:434, and the constitutional guarantee of an accused’s right to confront and cross-examine the witnesses against him. La. Const. Art. 1, s 16; State v. Michelli, 301 So.2d 577 (La.1974); cf. State v. Carter, 326 So.2d 848 (La.1975).

Dupree, 377 So.2d at 330.

A trial court’s determination as to the admissibility of such evidence will not be overturned absent clear error. State v. Lobato, 603 So.2d 739 (La.1992). Here, there are no facts in the record establishing any of the requisites of La.Code Evid. art. 801(D)(3)(b). It appears the trial court assumed that since a prima facie case of conspiracy had been proven in the Elbertine Sykes case, that finding could simply be adopted in this case. There was no stipulation between the State and the Defendant that the Sykes ruling could be transferred to this case. The record contains no clear expression that the Defendant agreed to this. We find no proof that a prima facie case of conspiracy has been made in this case and, consequently, none of the other requirements of article 801 have been met either.

Additionally, we find the admission of the statement also violated the Confrontation Clause. U.S. Const. amend. VI; La. Const. art. 1, § 16. At the time of the trial in this case, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), provided that the Confrontation Clause was not violated if the evidence at issue fell within a firmly rooted exception to the hearsay rule or if there were particular indicia of reliability. Recently, in Crawford v. Washington, — U.S. -, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court abrogated its decision in Roberts, indicating that reliability alone was insufficient to satisfy the Confrontation Clause. The court held the following:

Where testimonial evidence is at issue ... the Sixth Amendment demands what common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Id., 124 S.Ct. at 1374 (footnotes omitted)(emphasis added).

We must also address Crawford’s applicability here given the Supreme Court’s decision in that case was rendered after the case before us now was tried and decided. Even though the decision in Crawford is very recent, other courts have already considered its application to cases which had been tried before Crawford was decided. In U.S. v. Avants, 367 F.3d 433 (5th Cir.2004), the Fifth Circuit applied the Crawford test even though Crawford was decided after the conclusion of the trial in Avants. Other courts have also held Crawford to be applicable even though it was decided after the trial in those cases. See, e.g., State v. Herrmann, 679 N.W.2d 503, 2004 SD 53 (2004); State v. Pullen, 594 S.E.2d 248 (N.C.App.2004); Cooper v. McGrath, 314 F.Supp.2d 967 (N.D.Cal.2004); and Moody v. State, 277 Ga. 676, 594 S.E.2d 350 (2004).

The State argues that Crawford is not controlling here because the statement at issue in that case was not made to further a conspiracy. The State further contends that the holding in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), is the law to be applied here because the statement at issue in that case was made in the furtherance of a conspiracy. We disagree. The spectrum of Crawford is much broader than as portrayed by the State. Crawford teaches that the right of confrontation applies to all “testimonial statements against the accused”. The Court goes on to expressly state that testimonial statements would include those made during “police interrogations.” Indeed, the statement at issue in Crawford was a statement made during a police interrogation. Consequently, the statement of Mrs. Sykes, given during a police interrogation, falls squarely within the reach of Crawford.

The State argues further that Inadi is still the law because it was not expressly overruled by the Court in Crawford. Again, the State fails to give cognizance to the breadth of Crawford and its application to all testimonial statements, regardless of the purpose for which the statement may have been given, including the purpose of furthering a conspiracy. We would not expect the Supreme Court to specifically address all prior cases wherein the admissibility of testimonial statements, in a multiplicity of differing circumstances, might have been at issue.

Finally, the State contends that Defendant waived his right to object to the introduction of the Sykes statement because the court had offered him the right to subpoena Sykes as a witness. This begs the issue. Calling Sykes as a witness, in and of itself, would hardly render the statement admissible. Defendant should not be required to call Mrs. Sykes as a witness simply to facilitate the State’s introduction of evidence against the Defendant. Moreover, there could be a whole host of reasons why Defendant would not want to call Mrs. Sykes as a witness.

Simply stated, if the State needed to have Mrs. Sykes’ testimony to enable the State to introduce the statement into evidence, the State could have called Mrs. Sykes as a witness.

In Crawford, the Supreme Court expressed no opinion regarding whether a harmless error analysis should be applied to such violations. Id. at n. 1. In all of the cases wherein the ruling in Crawford has been relied upon, the courts employed the harmless error analysis. Additionally, the admission of hearsay evidence is generally subject to the harmless error analysis. State v. St. Marie, 97-0168 (La.App. 8 Cir. 4/18/01), 801 So.2d 424.

Confrontation errors are subject to a Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. [673] at 684, 106 S.Ct. [1431] at 1438[, 89 L.Ed.2d 674 (1986)]; State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473, 478; State v. Wille, 559 So.2d 1321, 1332 (La.1990).
The correct inquiry is whether, assuming that the damaging potential of the cross-examination-were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
Delaware v. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438.

State v. Robinson, 01-273, pp. 9-10 (La.5/17/02), 817 So.2d 1131, 1137.

Mrs. Sykes’ statement was important in this case. It corroborated the testimony of three State witnesses on critical points of the case. First, in her statement, Mrs. Sykes stated that the Defendant admitted that he killed Mr. Sykes while robbing him. . The statement corroborated the testimony of Kenny Rhodes, who testified at trial that the Defendant told him he shot a man while robbing him. Mr. Rhodes did not testify as to when or where the Defendant allegedly killed a man, nor did he testify that the Defendant told him the identity of the man he killed.

Second, the portion of Mrs. Sykes’ statement wherein she said she saw the Defendant driving her husband’s truck on the night of November 10, 1999, the day her husband became missing, corroborated the testimony of Cathy Johnson, who testified that she saw the Defendant driving a white truck. Ms. Johnson was not asked to identify the white truck as that of the victim and she was not asked on what day her observation occurred.

Finally, Mrs. Sykes’ statement also corroborated Jo Ann Williams’ testimony that the Defendant knew Williams had a twenty-gauge shotgun and where she kept it. J.B. Peace testified that Ms. Williams had a twenty-gauge shotgun that was missing, but he did not testify when the gun disappeared.

In There were no eyewitnesses to the murder of William Sykes. Additionally, there was no physical evidence linking the Defendant to the crime. The statement Elbertine Sykes made to Detective Wilson on November 18, 1999, connected very important loose ends in this case and was the among the strongest evidence presented by the State.

Considering the foregoing, we find that admission of the statement was not harmless. As a result, the Defendant’s conviction must be set aside, his sentence vacated, and the case remanded for a new trial.

Under the circumstances, we pretermit the discussion of Defendant’s Assignment of Error Number Two.

DISPOSITION:

The Defendant’s conviction is set aside, his sentence vacated and the case is remanded to the trial court for a new trial.

CONVICTION SET ASIDE; SENTENCE VACATED; REMANDED FOR A NEW TRIAL.

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

      . In Crawford the state sought to introduce a recorded statement the defendant’s wife had given in a police interrogation.

      . This case can be found by using Westlaw citation 314 F.Supp.2d 967.

      . The thrust of the Inadi holding is that the confrontation clause does not require the prosecution to show unavailability as a prerequisite to the admission of statements of non-testifying co-conspirators

      . At the trial, the Defendant refused the court's offer to call Mrs. Sykes as a witness, contending that it would be a vain and useless exercise because her case was still pending on appeal and, therefore, she would plead the 5th amendment were she called to testify. Because we find the statement to be inadmissible on other grounds, we need not address the speculative issue of Mrs. Sykes’ 5th amendment rights.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Billy BROUSSARD, et al. v. John S. JESTER, M.D.
    No. 04-0018.
    Court of Appeal of Louisiana, Third Circuit.
    June 16, 2004.
    James M. Garner, Debra J. Fischman, Elizabeth S. Robbins, Sher Garner Cahill Richter, Klein McAlister & Hilbert, LLC, New Orleans, LA, for Defendant/Appellee: John S. Jester, M.D.
    John L. Hammons, Cornell R. Flournoy, Nelson & Hammons, Shreveport, LA, for Plaintiff/Appellant: Billy Broussard Paul Danny Broussard.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

FACTS

On or about July 2, 1999, Shirley Brous-sard was diagnosed with Stage I cervical cancer by the medical staff at the University Medical Center in Lafayette, Louisiana. On July 12, 1999, Ms. Broussard began radiation and chemotherapy treatments with Dr. Gabor Altdorfer, an oncologist at the Romagosa Radiation Oncology Center. After undergoing several doses of radiation plus chemotherapy, Ms. Brous-sard contacted Dr. Altdorfer’s staff to advise them that she had decided to discontinue radiation treatment and treat with essiac tea instead. Upon learning of her decision to discontinue the radiation therapy, Dr. Altdorfer contacted Ms. Broussard by phone on July 19, 1999. During their telephone conversation, Dr. Altdorfer warned Ms. Broussard that she needed to continue receiving the radiation treatments and the consequences of discontinuing the treatment. When his attempt to persuade Ms. Broussard to continue radiation treatment was unsuccessful, he sent her a certified letter advising her that he strongly disagreed with her decision because she had Stage I cervical cancer that could be cured successfully with radiation therapy. His letter further stated, “If you discontinue this treatment, nothing is going to stop the cancer from growing, and you will die of the disease.” Dr. Altdorfer made another attempt to persuade Ms. Broussard to continue radiation therapy on July 26, 1999. When this attempt was unsuccessful, Dr. Altdorfer decided to close her chart.

On or about August 12, 1999, Ms. Brous-sard met with Dr. John S. Jester at Jester Naturopathic Associates in Lafayette, Louisiana. During this initial visit, Ms. Brous-sard did not have her medical records with her but informed Dr. Jester that she had cancer of the cervix. Dr. Jester developed a protocol of herbal medications and nutritional recommendations based on the fact that she had cervical cancer. Over the period of time that Ms. Broussard was treated by Dr. Jester, she continued to experience vaginal bleeding, pelvic pain, and decreased energy levels. Dr. Jester ordered CAT scans and blood tests, allegedly at Ms. Broussard’s insistence. He reviewed the results of these tests and informed Ms. Broussard that “no cancer markers were present” and that there was “no sign of a tumor.”

On or about January 22, 2001, Ms. Broussard was admitted into Our Lady of Lourdes Regional Medical Center where she was diagnosed with Stage IV cervical cancer and anemia due to prolonged vaginal bleeding. On January 24, 2001, she underwent surgery to remove a tumor from her bladder. She also underwent radiation treatment that was palliative in nature. Ms. Broussard died on March 9, 2001.

In compliance with the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq., Ms. Broussard’s surviving major children, Billy Broussard and Paul Danny Broussard, filed a claim against Dr. Jester with a medical review panel. The Division of Administration notified them that Dr. Jester is not a healthcare provider qualified under the terms of the Louisiana Medical Malpractice Act. The Broussards then filed a petition in district court seeking damages from Dr* Jester based on a claim of medical malpractice. In response, Dr. Jester filed an Answer asserting that the plaintiffs have no cause of action against him based on Ms. Broussard’s decision to refuse conventional treatment for her condition in the form of radiation and chemotherapy and her choice to pursue alternative treatment for her condition. He also filed a Motion for Summary Judgment, which was heard on June 23, 2003. The trial court granted the defendant’s motion for summary judgment at the conclusion of that hearing.

It is from this judgment the plaintiffs appeal.

ASSIGNMENTS OF ERROR

1. The trial court erred in failing to recognize that whether the admittedly disputed facts that Dr. Jester was practicing medicine in the State of Louisiana without a license and should be held to the standard of care of a physician are material facts bearing directly on the issues of liability and damages.
2. The trial court erred in apparently weighing the evidence regarding the validity of the defendant’s assertion of victim fault and making a judgment on that issue rather than recognizing the existence of that genuinely disputed issue of material fact which should only be resolved after trial on the merits.

DISCUSSION

Because they are related, the assignments of error will be discussed together. Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether the summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. Louisiana Code of Civil Procedure Article 966, in pertinent part, provides as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is no absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The appellants are correct in their assertion that the applicable substantive law determines the materiality of facts in a summary judgment setting. Trahan v. State, Through Dept. of Health and Hosp., 95-320 (La.App. 3 Cir. 10/4/95), 663 So.2d 242. Material facts are those which potentially ensure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. If there is a genuinely disputed issue of material fact summary judgment is not appropriate. La.Code Civ.P. art. 966(c)(1).

In determining whether an issue is “genuine” for purposes of a summary judgment motion, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788 (La.App. 3 Cir.), writs denied, 525 So.2d 1049 (La.1988).

In the instant case, the plaintiffs base their claim against the defendant on medical malpractice. In their petition they allege that their mother, Shirley Broussard, was a patient of Dr. Jester, who practices naturopathic medicine. They contend that Dr. Jester deviated from applicable medical standards by: 1) failing to provide appropriate medical care under the circumstances; 2) failing to provide correct information regarding diagnostic tests performed on Shirley Broussard; 3) failing to inform Shirley Broussard of the severity of her condition; 4) failing to provide appropriate treatment or services to prevent further growth and/or spread of the cervical cancer; and 5) failing to recommend more aggressive treatment or refer Shirley Broussard to an oncologist.

In response, Dr. Jester filed the motion for summary judgment at issue. In support of his motion, Dr. Jester submitted Ms. Broussard’s medical and pharmacy records and the testimony of her former treating oncologist. In addition, he submitted a Statement of Uncontested Material Facts Supporting Summary Judgment and a Memorandum in Support of Motion for Summary Judgment.

Pursuant to La.Code Civ.P. art. 966, the initial burden of proof remains on the mover to show that no genuine issue of material fact exists. Only after the mover has met its initial burden of proof does the burden shift to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. Code Civ.P. art. 966(c)(2).

After reviewing the record in its entirety, we find the appellee failed to carry his initial burden of showing there is no genuine issue of material fact and that he is entitled to summary judgment by law.

Dr. Jester argues that the facts show Ms. Broussard voluntarily discontinued her radiation chemotherapy treatments prior to the time she began seeing him. He argues it is undisputed that he was a naturopathic physician and not a medical doctor. He further argues it is undisputed that he was not holding himself out as a conventional physician. The trial court concluded, in ruling on this motion, that Dr. Jester did not hold himself out as a conventional doctor to Ms. Broussard.

After reviewing the record we find there are genuine issues of material fact as to both whether Dr. Jester held himself out to the public as a medical doctor and whether he held himself out to Ms. Brous-sard as a medical doctor.

Louisiana Revised Statute 37:1262 sets forth, in pertinent part, as follows:

As used in this Part the following words and phrases shall have the meanings ascribed to them:
(1) “The practice of medicine, surgery, or midwifery” means the holding out of one’s self to the public as being engaged in the business of, or the actual engagement in, the diagnosing, treating, curing, or relieving of any bodily or mental disease, condition, infirmity, deformity, defect, ailment, or injury in any human being, other than himself, whether by use of any drug, instrument or force, whether physical or psychic, or of what other nature, or any other agency or means; or the examining, either gratuitously or for compensation, of any person or material from any person for such purpose whether such drug, instrument, force, or other agency or means is applied to or used by the patient or by another person; or the attending of a woman in childbirth without the aid of a licensed physician, surgeon, or midwife.

The appellants argue that Dr. Jester was negligent in his treatment of Ms. Broussard in two ways: 1) by practicing medicine without a license in violation of Louisiana law, and 2) by providing care and treatment that fell below the applicable standard of care.

Non-physicians are held to the standard of care of licensed physicians when those non-physicians intrude into the practice of medicine. Butler v. Louisiana State Bd. of Ed., 831 So.2d 192 (La.App. 3 Cir.), writ refused, 334 So.2d 230 (La.1976); Fairchild v. Brian, 354 So .2d 675 (La.App. 1 Cir.1977), writ denied, 356 So.2d 437 (La.1978).

Obviously, whether Dr. Jester was holding himself out to the public as a medical doctor and whether he held himself out to Ms. Broussard as a medical doctor are material issues of fact. We have reviewed the evidence presented at the hearing and find that, although Dr. Jester denies he held himself out as a medical doctor and denies representing to Ms. Broussard that he is a medical doctor, numerous documents reflect his use of the initials “M.D.” behind his name. The letter dated January 11, 2001, that the appellee sent to the University Medical Center ordering a CT scan bears the initials “M.D.” behind his name. The record reflects documents entitled “Treatment Plan,” which contain apparent instructions to the patient, that are signed off by “John S. Jester, M.D., Ph.D., D. Sc.” These documents are dated September 12, 2000, and November 20, 2000. Dr. Jester’s deposition testimony reflects that he told Ms. Broussard that he could help her “with like immune therapy, diet, things like that,” and that he told her “the most important thing she needed was surgery, radiation, and maybe chemotherapy.” His deposition also reflects, however, that he told her that he “would need medical records to know what type of cancer we’re going to treat....”

Although in his deposition, Dr. Jester states he told her he could not order scans to know whether or not the disease was progressing, he did in fact order a CT scan, representing himself as John S. Jester, M.D., and he also ordered blood work. He sent those test results to her and apparently interpreted those tests. The tests results sent to Ms. Broussard in May, 2000, apparently contain a notation by Dr. Jester that -he found “no cancer markers” and further notes it is a “Good Report.” Further in appellee’s deposition he made the following statement: “[I] do recall a conversation that she said, “When can I stop taking all this stuff. It’s too expensive.” And I said, ‘When something shows me that we should stop, like you go into remission.”

DECREE

Whether the appellee held himself out as a medical doctor is a contested issue of material fact which precludes summary judgment. The trial court erred in granting the appellee’s motion. The judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings. The costs of this appeal are assessed to the defendant-appellee.

REVERSED AND REMANDED.


author: h COOKS, Judge.

text:
    AMOCO PRODUCTION COMPANY v. TEXACO, INC., et al.
    Nos. 03-1625, 03-1423.
    Court of Appeal of Louisiana, Third Circuit.
    June 16, 2004.

      J. Michael Veron, Patrick D. Gallaugher, Jr., Scofield, Gerard, Veron, Singletary & Pohorelsky, Lake Charles, LA, Anthony J. Fontana, Jr., Abbeville, LA, James A. Gillespie, BP Amoco Corporation, Legal Group, Houston, TX, for Plaintiff/Appellee, Amoco Production Company.
    Silas B. Cooper, Jr., Silas B. Cooper, Jr. & Assoc., Abbeville, LA, Reginald J. Rin-guet, William H. Collier, Ringuet, Daniels & Collier, Lafayette, LA, Robert S. Rooth, Harry R. Holladay, Douglas L. Grundmeyer, Heather M. Valiant, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, LA, for Defendanf/Appellant, IMC Exploration Company.
    P.J. Laborde, Jr., The Laborde Law Firm, Lafayette, LA, for Defendani/Appel-lant/Cross-Appellee, Mallinckrodt, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and OSWALD A. DECUIR, Judges.
   h COOKS, Judge.

This appeal involves a dispute over how interest on a judgment should be computed. Defendants, IMC Exploration Company and Mallinckrodt, Inc., argue the trial court erred in denying its motion seeking to reduce legal interest owed.

FACTS

Amoco filed a lawsuit against IMC Exploration Company and Mallinckrodt, Inc., contending they deliberately took action/inaction which led to the cancellation of leases that Amoco had previously assigned to them. After the cancellation of Amoco’s leases, the defendants acquired new leases directly from the landowners. A producing gas reservoir was later discovered under the cancelled leases, which Amoco argued cost them millions of dollars in lost production revenues.

Amoco’s petition, filed on April 29, 1994, asked for damages for defendants’ breach of the reassignment clause pertaining to the Baudoin Leases. The petition was amended in 2001 to add a claim for a breach of the reassignment clause of the Jenkins Lease. Amoco requested $26,732,000.00 in damages as a result of the loss of the Baudoin Leases and $8,376,000.00 in damages for the loss of the Jenkins Lease.

After a lengthy trial, the jury returned a verdict in favor of Amoco in a lump-sum verdict of $30 million. There was no indication in the judgment as to what portion was given for the respective breaches of the reassignment clauses of the Baudoin and Jenkins leases. A judgment was signed on September 19, 2001 ordering the defendants to pay Amoco $30 million with legal interest due from “the date of judgment demand until paid.” The Defendants appealed. This court affirmed the trial court judgment in its entirety. See Amoco Production Co. v. Texaco, Inc., 838 So.2d 821. Writ applications were filed with the Louisiana Supreme Court, which were subsequently denied. See Amoco Production Co. v. Texaco, Inc., 845 So.2d 1096. Therefore, the judgment became final.

Counsel for defendants were provided by Amoco with a written calculation of the value of the judgment, which included legal interest. Defendants filed a motion seeking to reduce the legal interest owed under the judgment and/or to stay the judgment. Defendants contended legal interest should have run on one portion of the jury award from the date of the amended petition rather than the date of judicial demand of the original filing. Specifically, defendants argued Amoco alleged two separate and distinct breach of contract claims, the first in its original petition and the second in an amendment to the petition filed years later. Thus, they contend there were two judicial demands and interest must be separately computed on the damages attributable to each claim. Amoco filed an opposition to the motion and also filed an exception of res judicata.

The trial court denied the defendants’ motions, holding since the jury made a lump-sum award it was impossible to determine how much the jury awarded for the loss of any particular lease. The trial court also determined that defendants should have raised this issue prior to the judgment becoming final, and granted the exception of res judicata.

Defendants filed an appeal from the district court’s judgment. Despite its appeal, defendants also filed a writ application with this court “in an abundance of caution and to ensure that this court can review the judgment on its merits either through its supervisory jurisdiction or its appellate jurisdiction.” We granted the writ application for the limited purpose of ordering the consolidation of the writ application with the appeal.

Defendants assert the trial court made the following errors in its judgment below:

1. The district court erred in denying IMC and Mallinckrodt’s motion regarding computation of interest on the judgment concluding that legal interest on the entire principal amount of the final judgment runs from April 29, 1994, from the date of the filing of suit, instead of computing interest on damages for each separate breach-of-contract claim from the date of its respective judicial demand.
2. The district court erred in failing to separately allocate the lump-sum award by determining what portion of the award was attributable to the alleged 1981 breach concerning the Baudoin, et al. Leases asserted in the original petition in 1994 and what portion of the award was attributable to the alleged 1976 breach concerning the Jenkins Lease asserted in the amended petition filed in 2001. Alternatively, if the court could not perform the allocation, it erred in failing to hold that legal interest on the entire lump-sum award runs from the date of the amended judicial demand in 2001.
3. The district court erred in granting Amoco’s peremptory exception of res ju-dicata to bar IMC and Mallinckrodt’s motion.
4. The district court erred in failing to order Amoco to repay IMC any overpayment of interest on the Judgment.

ANALYSIS

Initially, we note the final judgment in this matter awarded Amoco “the full and true sum of THIRTY MILLION AND NO/100 (30,000,000) DOLLARS, with legal interest thereon from the date of judgment demand until paid.” The plain wording of La.Code Civ.P. art. 1951 provides that a final judgment cannot be substantively changed. Amoco argues this is what the defendants are trying to do. However, defendants contend they are merely seeking to have the judgment enforced as written. They argue the issue before this court is as follows:

Where two separate breach-of-contract claims are asserted at different times in a single suit by way of two separate judicial demands and the judgment awards interest “from date of judicial demand,” does interest on both claims run from the filing of suit asserting only one of the claims, as Amoco argues and as the trial court held, or does interest on each claim run separately from the date each was judicially demanded, as Appellants argue and as every case that has addressed this issue has held?

Defendants call our attention to the Louisiana Supreme Court’s decision in Abraham v. Abraham, 233 La. 808, 98 So.2d 197 (1957), wherein the court found that the filing of an amended petition asserted a new demand and that judicial interest on the cause of action of the amended petition would not begin to run until the date they were judicially demanded. In Abraham, the husband filed an original petition seeking a separation from bed and board. The petition was later amended to ask for an accounting and settlement of the community, for which he eventually received a money judgment. The question facing the Abraham court was whether the judicial interest on the money judgment should begin to run from judicial demand of the original petition or from the amended petition. The court discussed its reasoning as follows:

Plaintiff contended that judicial demand commenced when he filed his suit for separation from bed and board on February 13, 1953, and not from the date of his prayer for settlement of the community. For this reason, he would not acquiesce in marking the Docket of the Civil District Court for the Parish of Orleans ‘satisfied’. The present proceeding followed.
Plaintiff argues in this Court that all pleadings filed subsequent to February 13, 1953 were auxiliary pleadings to the main suit. He contends that there can be only one date of judicial demand in any given court proceeding — that is, the date a petition is filed in a court of competent jurisdiction, which includes all parties necessary to the suit and is prosecuted to a final successful conclusion.
Article 1, Louisiana Code of Practice, defines an action as follows:
‘An action is the right given to every person, to claim judicially what is due or belongs to him.
‘Action means also the exercise of that right, that is to say, a judicial demand founded on a contract, or given by law, by which the plaintiff prays that the person against whom he proceeds be ordered to do that which he has bound himself towards him to perform.’
When a plaintiff files a suit predicated on a legal right he is entitled to assert (Rapides Grocery Co. v. Vann, 230 La. 829, 89 So.2d 359 [(1956)]), he brings an action. Article 1, Code of Practice, supra. The filing of the petition is certainly a judicial demand. However, it does not necessarily follow that the original judicial demand will be the only demand filed in the proceeding. There may be many incidental demands, and also other demands, which emanate from the original demand in the same action. Such demands are filed in a court of justice and must be classed as judicial demands, even though they are not the first demand or the original action.
The community herein involved was not dissolved until there was a judgment of separation from bed and board. Tanner v. Tanner, 229 La. 399, 86 So.2d 80 [(1955)]; Abunza v. Olivier, 230 La. 445, 88 So.2d 815 [(1956)]. Plaintiff waited from that date, May 15, 1953, until October 20, 1953, to make a demand for an accounting and settlement of the community. This was the judicial demand we were speaking of in our original decree. It was an outgrowth or incident of the action for separation from bed and board, and it might be classed as auxiliary; but, no matter what it is called and when it was filed, it was a judicial demand. In the instant matter, ‘Interest from judicial demand’ means interest from October 20, 1953.

Abraham, 98 So.2d at 198.

In Mehta v. Baton Rouge Oil Co., Inc., 99-1773 (La.App. 1 Cir. 9/22/00), 768 So.2d 243, the court was faced with a dispute over how interest on a judgment should be computed. In 1987, the plaintiffs filed suit against defendants for rentals and late charges due under a written lease. During trial beginning in 1992, plaintiffs attempted to introduce evidence of subsequent delinquencies on rental payments. Defendants objected to the introduction, and the trial court sustained the objection. Plaintiffs then orally moved for permission to amend the petition. Shortly thereafter, plaintiffs filed an amended and supplemental petition, alleging defaults on rental payments for a different time period than set forth in the original petition. Judgment was rendered in favor of the plaintiffs, awarding them a lump sum “together with legal interest thereon from date of judicial demand.” The defendant made regular payments on the judgment for approximately five years until it believed the judgment was satisfied. However, a dispute arose as to the appropriate amount of interest due. Plaintiffs argued interest was due on the entire amount from the date of the original petition and defendants argued interest on the second claim was due only from the date of the filing of the amended and supplemental petition. The trial court held that judicial interest on the claims for subsequent rentals set forth in the amending petition would run from the date of that judicial demand. Plaintiffs appealed.

In affirming the trial court’s judgment, the first circuit relied on the Abraham decision, and further stated:

The plaintiffs in the present case would propose a rule of law that judicial demand in any judgment, without further specification, must relate back to the filing of the original petition, regardless of subsequent supplements or amendments. For this, plaintiffs rely upon Article 1153 of the Code of Civil Procedure which provides:
When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading. It is generally recognized that the
doctrine of Article 1153 affects the issue of prescription. Hardy v. A + Rental, Inc., 95-2176, p. 2 (La.App. 4th Cir.5/8/96), 674 So.2d 1155, 1156-57, writ denied, 96-1945 (La.11/1/96), 681 So.2d 1268. While appellants would want to give the article an interpretation which would make it controlling on the question of judicial demand, that is contrary to the jurisprudence of the state. In fact, it has been held that, even in the event that claims not raised by the pleadings are tried by express or implied consent of the parties at the trial, this impromptu expansion constitutes a new judicial demand, and damages arising from the new claim or claims only bear interest from the time of the trial. Red River Realty, Inc. v. Relmm Corporation, 372 So.2d 792, 798 (La.App. 2nd Cir.1979).
Therefore, all damages relating to the cause set forth in the supplemental and amending petition should bear interest only from the date of that demand.

Mehta, 768 So.2d at 246-247.

Amoco argues in brief that the phrase “date of judicial demand” means the date the original petition was filed. Amoco cites Sanders v. American Fidelity Fire Ins. Co., 98-308 (La.App. 3 Cir. 9/23/98), 750 So.2d 210, in support of this contention. In Sanders, two suits were filed over a construction dispute. LIGA was named only in the second suit. The cases were consolidated, and the jury rendered an award in favor of the plaintiffs in both suits. LIGA appealed, arguing judgment was improperly rendered against it in the first suit. The appellate court agreed, finding LIGA was not a party to the main demand. The Louisiana Supreme Court amended the judgment to reduce the damages awarded. LIGA then paid the amount it believed it owed, including interest from the date the second suit was filed. Contending that it satisfied the final judgment, and that it did not owe any judicial interest in the first suit filed, as it was never named as a party defendant, LIGA filed a Motion to Deem Judgment Satisfied with the district court. However, the district court modified the final judgment to require LIGA to pay legal interest from the date of the filing of the original suit. LIGA appealed. This court stated as follows:

Sanders argues in his brief that he “did not seek modification of a final judgment-rather he sought a more appropriate definition of the words ‘... from judicial demand’ [in the judgment]” regarding LIGA’s responsibility for judicial interest in [the first] suit. Even if we were to assume for the sake of argument that Sanders were legally entitled to the legal interest in the modified judgment, as found in the district court’s holding in question here, the proper time for him to have raised this issue, since it was not awarded, was following the signing of the judgment in the district court, either by a motion for new trial, or a motion for appeal. This, he failed to do for whatever reason. It is too late, now that the judgment has long since become final, to contend that he is entitled to a substantial award of judicial interest, representing a large sum, because of the reinterpretation of the words found in the judgment “... from date of judicial demand.” Fundamentally, Sanders seeks to have us affirm a district court’s substantive modification of a final judgment in which the delays for appeal had expired. This La.Code Civ.P. art. 1951 will not permit.

Amoco attempts to rely on the court’s concern that Sanders did not ask for relief within the “proper time.” However, we note two of the three judges concurred in the result, finding the “case should be decided on the basis that LIGA should not be liable for all of the judicial interest in [the first] suit ... on the basis that it was not a party to the litigation ...”

The Abraham and Mehta cases indicate when a judgment awards interest from the date of judicial demand and when multiple judicial demands are pleaded in the same suit, interest on each claim accrues from the time the judicial demand was made for that claim. We find Sanders is not applicable to the situation presented here and does not affect the holdings in Abraham and Mehta. In Sanders, LIGA could not be responsible for interest on a judgment to which it was not a party.

Amoco argues in brief that defendants consented to an expansion of the pleadings under La.Code Civ.P. art. 1154 when it filed a motion for summary judgment in “anticipation” of Amoco amending its petition. However, the facts are clear that Amoco amended its pleadings on September 11, 2001, to add a claim for damages concerning the Jenkins Lease. At that time, defendants objected, arguing any claim for damages on the Jenkins Lease had never been pled by Amoco.

Also, we find the trial court erred in granting Amoco’s peremptory exception of res judicata to bar IMC and Mallinck-rodt’s motion. Amoco’s basis for the argument that res judicata applies is that a final judgment cannot be substantively changed. However, as discussed earlier, defendants are not requesting that the final judgment be changed or altered in any way; rather, they merely ask that the interest awarded by the judgment be computed according to the law. Therefore, res judicata is inapplicable, and the trial court erred in granting the exception.

In its answer to the appeal, Amoco asserted the appeal and writ application were untimely. We disagree. As the defendants are not requesting that the final judgment be changed or altered in any way, the appeal is not untimely.

Finding the jurisprudence supports defendants’ contention that interest on each claim accrues separately from the time of the judicial demand was made for that claim, we are faced with the problem of How to determine what portion of the award was allocated to each claim. The trial court in rendering its decision in open court felt in would be “unduly burdensome on the Court” to “go back and determine how [the jury] calculated” the damage awards. We agree it would be “unduly burdensome,” if not impossible.

At trial, Amoco presented separate evidence and damage calculations for each breach of the leases. With regard to the breach of the Baudoin Leases, Amoco sought $26,732,000.00 in damages. For the breach of the Jenkins Lease, Amoco requested damages in the amount of $8,376,000.00. The jury awarded a lump-sum of $30,000,000.00. As defendants note, since the jury’s award was for an amount greater than what Amoco sought for the breach of the Baudoin Leases, it is obvious the jury awarded some measure of damages for the breach of the Jenkins Lease.

Nothing we do today will satisfy either side on this issue. Fairness, however, must serve as our guide. At a minimum, we must conclude the jury awarded $3,268,000.00 for the breach of the Jenkins lease. Therefore, we find interest on that amount begins to run from the date of the filing of the amended petition asserting the Jenkins claim for the first time.

Amoco in its answer to the appeal, requested damages and attorney fees for frivolous appeal. Given our disposition on the merits, we decline this request.

DECREE

For the foregoing reasons, the judgment of the trial court granting Amoco’s exception of res judicata is reversed. We also reverse the denial of defendants’ |10motion seeking to reduce legal interest owed. The motion is hereby granted in part and defendants are ordered to pay Amoco interest on $3,268,000.00 from the date the amended claim on the Jenkins Lease was filed. In all other respects the motion is denied. Costs of this appeal are assessed to Amoco.

EXCEPTION OF RES JUDICATA REVERSED; MOTION TO REDUCE GRANTED IN PART & RENDERED.

DECUIR, J., concurs in the result.

      . A complete discussion of the factual scenario involved in this matter is contained in our previous decision, Amoco Production Co. v. Texaco, Inc., 02-240 (La.App. 3 Cir. 1/29/03), 838 So.2d 821, writ denied, 03-1102 (La.6/6/03), 845 So.2d 1096.


author: I t COOKS, Judge.

text:
    LYON FINANCIAL SERVICES, INC., d/b/a/ The Manifest Group v. McRAE FORD, INC., et al.
    Court of Appeal of Louisiana, Third Circuit.
    June 16, 2004.

      Mary Catherine Cali, Carlos A. Roma-nada, John C. Walsh, Shows, Cali & Ber-thelot, Baton Rouge, LA, for Plaintiff-Appellant: Lyon Finandal Services, Inc., d/b/a The Manifest Group.
    Robert G. Nida, Gregory B. Upton, Christopher M. Sylvia, Alexandria, LA, for Defendant-Appellee: McRae Ford, Inc.
    Court composed of SYLVIA R. COOKS, ELIZABETH A..PICKETT and BILLY H. EZELL, Judges.
   I t COOKS, Judge.

Showroom Master Traffic, Inc. (hereafter STM) approached McRae Ford in 1999 about purchasing a computer system for use in its business. In 1999, McRae Ford entered into a lease agreement with ACI Financial, Inc., for the computer system. This lease agreement was eventually assigned to Lyon Financial Services, Inc., d/b/a The Manifest Group (hereafter Lyon/Manifest).

A representative of STM attempted to install the system. McRae Ford contends the computer system has not been completely installed because parts integral to the functioning of the computer system were never delivered. According to McRae, without the non-delivered parts the computer system could not perform any of the tasks for which McRae leased the system. Repairs were attempted to correct the defects in the system, but it was not corrected to McRae’s satisfaction. McRae then requested thé system be removed from its premises. They did not pay .the regularly scheduled lease, payments, thereby defaulting on the lease, agreement.

Lyon/Manifest filed suit against McRae Ford and STM seeking damages for past due and accelerated rent. McRae Ford filed cross claims against STM and third party demands against ACI and STM. Lyon/Manifest filed a motion for summary judgment against McRae Ford, which was denied. Shortly thereafter, McRae Ford filed its own motion for summary judgment. The trial court granted McRae’s motion finding the waiver of warranty provision in the lease was unenforceable because it was against public policy. The court specifically found the waiver of warranties provision in the lease agreement was not brought to the attention of McRae Ford. Therefore, the trial court held the lease agreement was a nullity and the claim for payment asserted by Lyon/Manifest, which was based on the lease agreement, must fall.

Lyon/Manifest appealed the trial court’s judgment, asserting the following assignments of error:

1. The trial court erred when it granted summary judgment in favor of McRae Ford and against Lyon/Manifest because a genuine issue of material fact existed as to whether or not the representative of McRae Ford, Mark D. McRae, had read and/or was aware of and/or was presumed to have known about the waiver of implied warranties clause in the lease agreement, or whether or not the waiver of warranties had been brought to his attention or the waiver of warranties was presumed to have been brought to the attention of Mark McRae.
2. The trial court erred when it held that the waiver of warranty in the lease agreement is invalid and unenforceable as against public policy, and that the entire lease agreement is a nullity and unenforceable.

ANALYSIS

Appellate courts review summary judgments de novo, under the same criteria that governs the district court’s consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783; Lamoco, Inc. v. Hughes, 02-1498 (La.App. 3 Cir. 7/9/03), 850 So.2d 67, writ denied, 03-2603 (La.12/12/03), 860 So.2d 1156. The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882. Further, “[i]t is not the court’s function on a motion for summary judgment to determine or even inquire into the merits of the issues presented.” Lexington House v. Gleason, 98-1818, p. 6 (La.App. 3 Cir. 3/31/99), 733 So.2d 123, 126, writ denied, 99-1290 (La.6/25/99), 746 So.2d 603.

The trial court found the waiver of warranties in the lease was unenforceable because it did not meet the third requirement for a valid waiver of warranty, i.e., that the waiver be brought to the attention of the buyer or explained to him. The trial court found it was “clearly established that [Mark] McRae did not read the lease agreement and related documents. Rather, he testified that he ‘scanned’ them. Lyon/Manifest has not presented any evidence that anyone brought the waiver of warranty clause to the attention of Mark McRae or explained it to him.”

Even though summary judgment procedure is favored, it is not a substitute for trial and is rarely appropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Penalber v. Blount, 550 So.2d 577 (La.1989); Greer v. Dresser Indus. Inc., 98-129 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235, writ denied, 98-2094 (La.11/6/98), 728 So.2d 867; Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2 Cir. 12/6/95), 665 So.2d 672, writ denied, 96-63 (La.3/8/96), 669 So.2d 404. Subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Greer, 715 So.2d 1235; Helwick v. Montgomery Ventures Ltd., 95-765 (La.App. 4 Cir. 12/14/95), 665 So.2d 1303, writ denied, 96-175 (La.3/15/96), 669 So.2d 424.

Based on the foregoing, we conclude at a minimum there is a genuine issue of material fact as-to whether Mark McRae was aware of the waiver of warranties provision when he signed the lease agreement on behalf of McRae Ford. Therefore, this matter was not appropriate for summary judgment.

We also note there is a material issue of fact surrounding whether'all the leased equipment was delivered to McRae Ford. Mark McRae signed an Equipment Acceptance and Purchase Authorization stating as follows:

On behalf of Lessee, I hereby certify that all the Equipment referred to in the above Lease has been delivered to and has been received by the Lessee, that all installation or other work necessary prior to the use thereof has been completed, that the Equipment has been examined by the Lessee and is in good operating order and condition and is in all respects satisfactory to the Lessee, and that the Equipment is accepted by the Lessee for all purposes under the Lease.

We find genuine issues of material fact still exist on this record which render [ 4the case inappropriate for summary judgment. We, therefore, reverse the trial court’s grant of summary judgment and remand for further proceedings.

REVERSED AND REMANDED.


author: 11 COOKS, Judge.

text:
    Althea WELLMAN, Tutrix of Jared Lamont Samuel v. Johnny M. EVANS, Jr., et al.
    No. 03-1720.
    Court of Appeal of Louisiana, Third Circuit.
    June 16, 2004.

      Michael H. Schwartzberg, Vamvoras & Schwartzberg, Lake Charles, LA, for Plaintiff-Appellant, Althea Wellman, Tu-trix of Jared Lamont Samuel.
    David R. Lestage, Hall, Lestage & Lan-dreneau, DeRidder, LA, for Defendant-Appellee, M. Bolivar Bishop, Sheriff of Beauregard Parish.
    L. Lane Roy, Jennifer A. Wells, Pries, Kraft & Roy, Lafayette, LA, for Defendants-Appellees, The City of DeRidder and Arvin Malone, in his Official Capacity as Chief of Police of the City of DeRidder.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD and MARC T. AMY, Judges.
   11 COOKS, Judge.

This appeal involves a claim for damages arising from the murder of Ernest Prater, Jr., who was shot and beaten to death on the evening of August 27, 1997. Prater was killed after traveling to the Vernon Parish Spillway with Johnny Evans, Jr. and Eric Pickens. Pickens pled guilty to manslaughter and testified against Evans who was eventually convicted of the second degree murder of Prater.

At the time of his death, Prater was working as a confidential informant for the Beauregard Parish Drug Task Force. The Task Force was a joint venture between the DeRidder City Police Department and the Beauregard Parish Sheriffs Office. Prater, who was incarcerated in the Beauregard Parish Jail at the time, sent two letters in July and August of 1997 to Robert L. McCullough, the Task Force director, about assisting the Task Force. Prater was interviewed by two Beauregard Parish Sheriffs Deputies, Saul Wilson and Betty Pichón. On August 1, 1997, he signed a confidential informant agreement with the Task Force. He was released from jail shortly thereafter.

On the night of August 13, 1997, Prater was arrested by Patrolman Johnny Evans, Sr., for shooting at another vehicle while on a bicycle. According to Evans, Sr., Prater was charged with possession of a firearm, illegal use of a weapon, and aggravated assault. Prater asked to speak with members of the Task Force to inform them of alleged drug activity involving Eric Pickens. As a result of this information, a search was conducted of Pickens’ apartment, and he was arrested on drug charges. Prater was released from jail after passing his information on to the Task Force. After his arrest, Pickens also met with Task Force members and signed his own confidential informant agreement.

On August 20, 1997, Prater informed the Task Force that Johnny Evans, Jr., was attempting to purchase a large amount of marijuana in Lafayette. However, that deal fell through. Deputy Wilson then suggested that Prater contact Evans, Jr. and see if he would be interested in purchasing a similar amount of marijuana from an undercover agent in Beauregard Parish. Although Prater talked with Evans, Jr. at the instruction of the Task Force, the proposed sting operation never came to pass.

On August 25, 1997, Prater went to the Vernon Parish Spillway with Evans, Jr. and Pickens, where he was beaten to death. Althea Wellman, acting as the tu-trix of Prater’s minor son, Jared Lamont Samuel, filed suit contending the Task Force failed to meet the minimum standard of care in the use and handling of Prater as a confidential informant. Named as defendants were the City of DeRidder, Arvin Malone, in his capacity as chief of Police of the City of DeRidder, and M. Bolivar Bishop, the Beauregard Parish Sheriff.

Specifically, plaintiffs contended that a duty was owed to Prater and that a breach of that duty occurred when Johnny Evans, Sr., was informed of Prater’s status as a confidential informant when his son, Evans, Jr. was a target of the proposed sting operation. They contend because of this breach, Pickens and Evans, Jr. became aware of Prater’s involvement and killed him. Plaintiff also contended alleged negligent acts and omissions of the Task Force members contributed to the death of Prater.

The matter went to trial. The trial court ruled in favor of defendants, finding the duty owed by the Task Force to Prater was one of reasonableness under the totality of the circumstances. While the trial court felt the evidence revealed the Task Force members may not have used the “best” or “most desirable” method of handling Prater, it did not breach the duty of reasonableness owed to Prater. The trial court set forth the following reasons for its judgment:

The facts established that Prater was a criminal with a history of activity. Because of this he was in and out of jail. Subsequent to his arrest for thé drive-by-shooting, he and the Task Force entered into a written confidential/cooperating individual agreement. This agreement was in essence and law, a contract between the two parties.
In general, police officers have a duty to maintain peace, maintain the law, to act reasonably to protect 'the public while enforcing the law and to refrain from causing injury or harm. This is a duty owed to the public in general. However, that duty may become a duty to an individual where it is converted by a close personal relationship between the officer and individual.
In the instant case, the Task Force went beyond a general duty and, by virtue of the written agreement with Prater, accepted a greater duty to him to protect him by using reasonable care in the performance of the contract. Similarly, Prater agreed to a certain set of standards as to his activity and conduct.
The obvious question is what standard of care did the parties agree to comply or conform to? There was a great deal of disparity between the expert witness testimony of each party as to the applicable standard of care.
Although there was a contract between the parties in this case, it was generally void of specifics. Therefore, the court will consider the jurisprudence to determine the applicable standard of care.
The generally accepted standard of care for police officers is one based upon reasonableness under the totality of the circumstances. Said another way, was the course of action of the Task Force reasonable under the circumstances?
The plaintiff maintains that standards or policies written by the International Association of Chiefs of Police (IACP) should apply as the minimum standard of care. There are no laws of this state which have statutorily mandated these guidelines. Neither is there jurisprudence which accepts them as the standard. Rather, these guidelines indicate simply that the analysis should be based upon a standard of reasonableness and of a careful and prudent person (officer) considering the totality of the circumstances of each case. In essence, that is what the law and jurisprudence states conduct under LSA-C.C. Article 2315 should be judged by in determining fault.
Therefore, this court declines to accept the IACP policies as the standard of care, but rather, will accept the standard of care as cited above under the reasonable man standard considering the totality of circumstances.
(2) Was the duty breached?
The evidence established that there was a lack of communication between the members of the Task Force. It appeared that Prater was brought in as a confidential informant and then, shortly thereafter, Pickens was signed up as one as well. The evidence shows less than desirable coordination between the officers who were dealing with the two informants, particularly in light of the fact that Prater had “snitched” on Pick-ens initially. Furthermore, there is evidence that tends to indicate a less than desirable control over who knew what about Evans, Jr., particularly as it relates to his father, [Evans, Sr.], a police officer and friend of Pickens.
This court must, however, analyze the evidence regarding the standard of care that the court has stated applies to this case. Thus, the court will look at the totality of the circumstances.
The evidence does not establish that Evans, Sr. became aware of the status of Prater, as alleged, and then told that information to Pickens and Evans, Jr. due to a lack of care of the Task Force members. Rather, there was testimony by one of the killers that he became aware of Prater’s status as a “snitch” from street talk. There was also evidence that Prater himself divulged this information to others practically from the moment he signed the agreement.
Neither is there sufficient evidence to establish that the Task Force botched or mishandled the reverse sting. The evidence did prove that there were efforts by the Task Force and Prater to set up a reverse sting with Evans, Jr. as the target. However, that effort never got far enough to be put into motion. There was no reverse sting ever done with Evans, Jr.
Undercover drug activities using confidential informants cannot be subject to rigid, strict controls.
The expert witness testimony established that these kinds of operations are fluid, and that with the use by law enforcement of a criminal, who is out on the street dealing with other suspected criminals creates a situation that is not readily subject to strict control. That is why the totality of circumstances are considered on a case-by-case basis using a reasonableness standard.
While the evidence shows that the Task Force members may not have used the “best” or “most desirable” method of handling Prater, the standard of care required that the Task Force use only reasonable action under the circumstances. That is what they did.
The court finds that the actions of the Task Force did not breach the standard of reasonableness regarding the use of Prater as a confidential informant, nor does this court find that the actions of the Task Force were a cause in fact of his death. The actions of Prater himself, as well as Pickens and Evans, Jr., resulted in the death of Prater.

Plaintiffs appealed the trial court’s decision, asserting the following assignments of error:

1. The trial court erred in finding plaintiffs failed to prove Johnny Evans, Sr. divulged confidential information to Johnny Evans, Jr. and Eric Pickens which caused Prater’s death.
2. The trial court erred in finding that Deputies Wilson and Pichón were not negligent in their use and handling of Prater as a confidential informant and that such negligent acts were not a cause of Prater’s death.
3. The trial court erred in not finding Sheriff Bolivar and the City of DeRidder liable under respondeat superior principals.
4. The trial court erred in not awarding damages to the plaintiff for the negligent acts of the defendants.
5. The trial court erred in not assessing 100% of the fault of Prater’s death to the defendants.

ANALYSIS

The liability of a police officer is determined using the duty/risk analysis. Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318. For a plaintiff to recover, he must prove the defendant had a duty to conform his conduct to a specific standard of care; he failed to conform his conduct to that standard; that substandard conduct was a cause-in-fact of the injury, the substandard conduct was a legal cause of the injury; and damages. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Id. at 322.

Plaintiffs first three assignments of error contend the trial court erred in its duty-risk analysis. The trial court found there was a duty owed to Prater by the defendants, which it defined as the reasonable man standard considering the totality of the circumstances. However, the trial court found the actions by the defendants did not breach the duty owed to Prater, thus ending the duty-risk inquiry.

We find no error in the trial court’s conclusion that the appropriate duty owed was that of the reasonable man standard considering the totality of circumstances. In Courville v. City of Lake Charles, 98-73 (La.App. 3 Cir. 10/28/98), 720 So.2d 789, this court addressed the duty owed by police officers when the plaintiff had earlier advised police that his wife had taken the family vehicle and was in search of illegal drugs. Police stopped the wife, who appeared lucid and calm. Officers administered a nystagmus test, which is designed to check only for alcohol. She was not tested for narcotics, because that would have required being brought to a facility for a blood or urine sample. The wife gave the police permission to search the vehicle, but no contraband was recovered. The officers then contacted the husband, who requested that his wife be detained at the scene. The officer responded that he had no lawful reason for detaining her, and let the wife go, advising her to return home. However, the wife hours later robbed a convenience store and fled from police in her vehicle. Eventually, the wife struck a telephone pole and was killed. Cocaine was later found in her system. The husband filed a wrongful death suit. This court found the duty owed by police was one of “reasonableness under the totality of the circumstances.” Id., at 797. The trial court, citing Mathieu also noted that an officer’s “actions need not be the ‘best’ method of approach; rather the standard of care requires choosing only a course of action that is reasonable under the circumstances.” Id., at 798.

A police officer, in carrying out his authority to enforce laws, has a duty to perform his function with due regard for the safety of all citizens who will be affected by his action. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. An officer must act reasonably to protect life and limb, to refrain from causing injury or harm, and to exercise respect and concern for the well being of those he is employed to protect. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173. In considering whether an officer breached his duty, the court’s task is not to determine whether the officer should have acted differently or if there were better options available, but only to determine whether his actions were reasonable under the totality of the circumstances. Syrie, 693 So.2d 1173; Mathieu, 646 So.2d 318.

After an examination of the jurisprudence, we find the trial court did not err in using a standard of reasonableness under the totality of the circumstances.

The thrust of plaintiffs argument is that the trial court erred in its analysis of whether the defendants breached the duty owed to Prater. Plaintiff calls this court’s attention to certain allegedly negligent acts and omissions committed by the defendants in this case. The issue of breach of duty is a factual question subject to the manifest error rule. “[W]here two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart v. State, Through DOTD, 617 So.2d 880, 883 (La.1993). “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Id. at 882. However, a reviewing court may reverse a factfinder’s determination if such, factual findings are not reasonably supported by the record and are clearly wrong. Id. We will examine the question of breach as it relates to the individual defendants.

I. City of DeRidder & Beauregard Parish Sheriff, through the actions of the Task Force Members.

As the Task Force was a joint venture between the DeRidder City Police Department and the Beauregard Parish Sheriffs Office, the alleged negligent acts and omissions of the Task Force members determine liability for both of these defendants.

Plaintiff was required to prove by a preponderance of the evidence that conduct of an employee of the DeRidder City Police Department or the Beauregard Parish Sheriffs Office was a breach of the duty owed to Prater and a substantial factor in causing Prater’s death. Plaintiff argues Prater' was never warned of anything nor given any directions. Plaintiff also points out the Task Force was aware that Prater had told others he was going to work for the police while he was still in jail, and as such it was not reasonable to use Prater given this knowledge. The trial court noted that while “the Task Force members may not have used the ‘best’ or ‘most desirable’ method of handling Prater, the standard of care required that the Task Force use only reasonable action under the circumstances.” The trial court found that the Task Force’s action was reasonable. We agree.

There is no indication in the record that Deputies Wilson and/or Pichón disclosed to anyone outside of fellow law enforcement that Prater was a confidential informant for the Task Force. There also is no evidence that on the night of his murder Prater was performing any function requested by the Task Force. There likewise is no evidence in the record that the deputies had any reason to know that Officer Evans told or would tell his son or Pickens that Prater was a police informant. It would not be unreasonable for members of the Task Force to conclude that a fellow officer would not disclose such information. We also note it was Prater himself who requested of Evans, Sr. that he contact the Task Force. Therefore, any knowledge obtained by Evans, Sr. as to Prater’s informant status was not gleaned from the actions of the Task force members.

While there was evidence to indicate that the Task Force attempted to set up a “reverse sting” against Evans, Jr. using Prater, it was established that this attempt was never carried out. There was nothing in the record to indicate Prater was with Evans, Jr. and Pickens on the night of the murder at the direction of any Task Force member or in furtherance of any Task Force objective.

After a thorough examination of the record, we find no evidence to cause us to find clearly wrong the trial court’s determination that plaintiff failed to carry the burden of proving by a preponderance of the evidence that conduct of an employee of the Task Force amounted to a breach of the duty owed to Prater.

II. City of DeRidder, through the actions of Patrolman Johnny Evans, Sr.

Plaintiff contends the trial court manifestly erred in its factual determination that Johnny Evans, Sr. did not reveal Prater’s confidential informant status to Johnny Evans, Jr. and/or Eric Pickens. Plaintiff points to a statement Pickens made to Deputy Wilson that Evans, Sr. disclosed Prater’s confidential informant status to him.

Evans denied revealing anything about Prater’s status, but did believe his son and Pickens were aware of Prater’s involvement with the Task Force. He also felt Prater’s status as an informant was the reason he was murdered.

The record reveals conflicting accounts in the record as to how Pickens and Evans, Jr. became aware of Prater’s confidential informant status. Plaintiff relies on the statement of Pickens that Evans, Sr. disclosed Prater’s status to him and Evans, Jr. However, Pickens also testified that he and Evans, Jr. had previous knowledge that Prater was informing for law enforcement:

Q: Okay. Who told uh, who told that Ernest [Prater] was ratting people out or ... ?
A: Johnny.
Q: How did he know?
A: He said those dudes on Bishop told him.
Q: On Bishop?
A: He didn’t say no names. He said some niggers on Bishop told me that Ernie was the one ratting us out.

Pickens attempted to deny his deposition testimony at trial, but when confronted with it he admitted it was true. As plaintiff acknowledges, there was also testimony in the record that Prater began telling people he was working for law enforcement from the day he signed the agreement with the Task Force. Thus, the record supports a conclusion that Evans, Jr. and Pickens were already aware of Prater’s informant status well before the alleged disclosure by Evans, Sr. Although the trial court did not reach the issue of whether any alleged leak of Prater’s status by Evans, Sr. was a cause-in-fact of Prater’s death, it is equally arguable his death was caused by the knowledge Evans, Jr. and Pickens acquired regarding Prater’s status in the weeks prior to the alleged leak.

Plaintiff also relies on the fact that Evans, Sr. was subsequently dismissed from the DeRidder City Police Force. In a letter from Chief Malone informing Evans, Sr. of his dismissal, he stated there was no logical reason for Pickens to make up such a story. Chief Malone also concluded while there may have been “street talk” about Prater’s informant status, “retaliation against people accused of being confidential informants” has not occurred based on such “street talk.” Although, Evans, Sr.’s subsequent dismissal may preponderate against him, we are not bound by findings in a civil service proceeding.

In American Employers Ins. Co. v. Honeycutt Furniture Co., 390 So.2d 255 (La.App. 3 Cir.1980), this court dealt with the alleged negligence of a City of Sulphur fireman. The damage caused by a fire resulted in a civil suit filed by the insurance company against the city to recover funds paid to the insured. In that case, the Civil Service Board had found the fireman negligent and terminated his employment. On appeal, the insurer argued the City was barred from contesting the fireman’s negligence on the basis of a letter introduced at the civil service proceeding written by the Mayor of Sulphur stating that the fireman was negligent in the performance of his duties. This court stated as follows:

We find [the Mayor’s] statement that [the fireman] was negligent in the performance of his duty was nothing more than an opinion based on facts admittedly not within his own .knowledge. Under these circumstances, his statement has no evidentiary value and has no effect on the City’s position in this case.

Id. at 260.

Our task as a reviewing court is not to assess whether the trial court’s factual findings are right or wrong in an absolute sense, nor whether we or .another trier of fact might reasonably reach a different conclusion from the same evidence. Rather, we must solely ask whether the factfin-der’s resolution of the conflicting evidence was reasonable in light of-the record- as a whole. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. Given the conflicting testimony in the record, we cannot say the trial court manifestly erred in finding Johnny Evans, Sr. did not breach the duty owed to Ernest Prater.

Having found the trial court did not err in finding Defendants did not breach the duty owed to Prater, the plaintiffs remaining assignments of error concerning damages and fault apportionment are rendered moot. , .

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.' All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: PICKETT, Judge. SULLIVAN, J.,

text:
    Deretha THOMPSON v. COUSHATTA EDUCATION DEPARTMENT.
    No. 04-7.
    Court of Appeal of Louisiana, Third Circuit.
    June 16, 2004.

      James Michael Stefanski, Edwards, Ste-fanski & Zaunbecher, LLP, Crowley, LA, for Plaintiff-Appellant, Deretha Thompson.
    Thomas Joseph Solari, Woodley Williams Law Firm, LLC, Lake Charles, LA, for Defendant-Appellee, Coushatta Education Department.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

FACTS

Deretha Thompson worked as a receptionist at the Coushatta Education Department. On April 27, 2001, while at work, she fell in the restroom. She complained of neck pain, lower back pain, and pain in both wrists. She sought treatment from several doctors, who prescribed tests including x-rays and an MRI, and provided treatments including pain medication. The employer paid for some medical treatments, but refused to pay indemnity benefits. On September 13, 2001, Thompson filed a Disputed Claim for Compensation with the Office of Workers’ Compensation (OWC) seeking wage benefits. Coushatta Education Department and their insurer, Louisiana Workers’ Compensation Corporation (LWCC), answered the claim with a general denial.

In October 2001, Thompson saw Dr. Dean Moore, a neurosurgeon, who indicated that she was unable to work and suggested that she needed surgery. Dr. Moore also diagnosed Thompson with bilateral thoracic outlet syndrome and bilateral carpal tunnel syndrome. The employer refused to pay for the surgery. Later, the employer amended its answer claiming Thompson had forfeited her benefits by committing fraud.

This matter went to trial on June 5, 2003. The only witness was Thompson. Also introduced into evidence were the medical records of at least eight doctors, the depositions of two co-workers who were witnesses to the fall, and reports from the employer. The Workers’ Compensation Judge (WCJ) took the matter under advisement. On September 29, 2003, judgment was rendered. The WCJ found that Thompson did prove that an accident occurred, but that she failed to prove a causal connection between the accident and her disability. She also denied the employer’s 1208 and 1208.1 fraud claims.

Thompson now appeals that judgment.

ASSIGNMENTS OF ERROR

Thompson asserts one assignment of error:

The trial court was clearly wrong or committed manifest error in failing to find that the claimant had not met her burden of proof by a preponderance of the evidence in showing a causal connection between the accident and resulting disability.

DISCUSSION

The only issue before this court is whether the Thompson met her burden of proving that her injuries were caused by her fall at work. The claimant in a workers’ compensation case bears the burden of showing a causal connection between the disability claimed and the work-related accident by a preponderance of the evidence. Quinones v. U.S. Fidelity & Guar. Co., 93-1648 (La.1/14/94), 630 So.2d 1303. Causation is a factual finding subject to the manifest error/clearly wrong standard of review. Guillory v. Wal-Mart Stores, Inc., 01-127 (La.App. 3 Cir. 10/3/01), 796 So.2d 772, writ denied, 01-2988 (La.1/25/02), 807 So.2d 844.

The employer’s case was based on medical records and testimony that, before the April 27, 2001, fall, Thompson had complained of or been treated for each of the injuries she claimed were caused by the fall. Those injuries include low back pain, neck pain, and pain in both wrists..

The records of Dr. Jeffrey Davis, a chiropractor, support the employer’s contention. As early -as February 16, 1998, following a motor vehicle accident, Thompson complained of pain in her right arm and shoulder, her neck, her mid-upper and lower back, and some headaches. The medical records indicate she “fell on steps” and had multiple motor vehicle accidents. She was treated by Dr. Davis regularly until March 12, 1998, .for these injuries.

Thompson returned to Dr. Davis on August 31, 1999, complaining of neck pain, headaches, and pain in her back radiating into her left arm. The charts indicate Thompson continued regular treatments with Dr. Davis until June 19, 2000, and continued to complain of neck pain and pain all the way down her back. After June 19, 2000, Thompson did not see Dr. Davis again until March 20, 2001. On that visit, she complained of neck pain, upper back pain, lower back pain, and headaches, and was treated by Dr. Davis for those symptoms. She returned on March 22, 2001, and complained of a headache, but stated that her mid-back and lower back felt “considerably better.” On March 26, 2001, she returned to Dr. Davis and complained of a “little discomfort” in her mid- and lower back, but her neck and upper back were still hurting and she still suffered from headaches. On March 29, 2001, she complained of neck and upper back discomfort and headaches. On April 2, 2001, she complained of neck and upper back discomfort on her left side and headaches. On April 3, 2001, she complained of neck and upper back pain and headaches. She did not return to Dr. Davis until after the April 27, 2001, accident.

As for the pain in her arms, in addition to the complaints made to Dr. Davis, Thompson was treated by Dr. Allen Hinton, an orthopedist, in November 2000. She complained of numbness in both arms, and Dr. Hinton diagnosed bilateral carpal tunnel syndrome. He treated her with injections in both arms, and she did not complain of pain in her wrists or hands after November 29, 2000.

After the April 27, 2001, accident, Thompson saw several doctors and complained of neck pain, lower back pain, and pain in both wrists. Apparently, the WCJ believed that all of these conditions were present before the accident and were not caused by the accident. Of the complaints Thompson had over the years, the persistent neck pain, upper back pain, and headaches were still bothering her up to three weeks before the accident, but the lower back pain and wrist and hand pain had been treated and relieved.

This court discussed recovery of workers’ compensation when the claimant has pre-existing conditions in Baker v. Conagra Broiler Co., 93-1230, pp. 8-9 (La.App. 3 Cir. 5/4/94), 640 So.2d 494, 498, writ denied, 94-1435 (La.9/23/94), 642 So.2d 1289:

In compensation cases, the claimant has the burden of showing that more probably than not an employment accident occurred and that it had a causal relation to the disability suffered. Delco v. Heritage Manor Nursing Home, 441 So.2d 309 (La.App. 3d Cir.1983), writ denied, 443 So.2d 1123 (1984). A worker’s preexisting condition does not bar his or her recovery under the workers’ compensation laws because an employer takes the worker as he finds him or her. Guillory v. U.S. Fidelity & Guaranty Ins. Co., 420 So.2d 119 (La.1982); Frederick v. Town of Arnaudville, 572 So.2d 316 (La.App. 3d Cir.1990), writ denied, 575 So.2d 373 (1991). An abnormally susceptible worker is entitled to no less protection under the workers’ compensation statute than a healthy worker. It is immaterial that the diseased or weakened condition of the worker might eventually produce the disability suffered outside of the employment situation. Guillory, supra; Toth v. Ensco Environmental Services, 546 So.2d 188 (La.App. 1st Cir.), writ granted, reversed in part on other grounds, 551 So.2d 623, writ denied, 551 So.2d 632 (1989). Said another way, the worker’s claim for disability benefits will not be disqualified if the work-related injury aggravates, accelerates, or combines with a disease or infirmity to produce death or disability for which compensation is claimed. Cadiere v. West Gibson Products, Co., Inc., 364 So.2d 998 (La.1978); Delco, supra; Toth, supra.

The employer’s chief defense at trial and in brief on appeal is that Thompson was not truthful in giving her medical history in a questionnaire she filled out for her employer or in her consultations with doctors after the accident. But those facts go more toward the fraud claim than the causation issue. The WCJ’s denial of the employer’s 1208 and 1208.1 fraud claims have not been appealed and are not before us. The only issue before us is compensation.

The evidence supports a finding that the accident aggravated the injuries Thompson had been suffering and caused dormant injuries to resurface. The evidence does not support a finding that the accident did not cause Thompson’s disabilities. We find the claimant did prove, by a preponderance of the evidence, that the accident caused the disabling injury. The judgment of the WCJ is reversed as to the issue of causation.

DISPOSITION

Finding that the trial court committed manifest error, we remand this case for a determination of indemnity benefits due to Thompson. All costs of this appeal are assessed against the appellees.

REVERSED AND RENDERED.

SULLIVAN, J.,

dissents. I find no manifest errdr in the decision of the Workers’ Compensation Judge.