author: hPEATROSS, J.

text:
    Leslie DUNN and Gloria Dunn, Plaintiffs-Appellants, v. Janet MORTENSON, Temporary Receiver of Austin Forex International, Inc.; International Foreign Exchange Corp.; and Ausforex International, L.L.C., Defendants-Appellees.
    No. 36,878-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      David A. Hamilton, Baton Rouge, Baum & Baum, by Brian Baum, for Appellants.
    Lemle, Kelleher, Barlow & Hardtner, by Michael B. Donald, Shreveport, Robert W. Kyle, Bickerstaff, Heath, Smiley, Pollan Kever & McDaniel, L.L.P., by Michael Shaunessy, Ann Greenberg, for Appellees.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   hPEATROSS, J.

This appeal arises from a summary judgment granted by the trial court in favor of the defendant, Janet Mortenson (“Mortenson”), Temporary Receiver of Austin Forex International, Inc., International Foreign Exchange Corporation and Ausforex International, L.L.C., and against the plaintiffs, Leslie Dunn and Gloria Dunn (collectively “the Dunns”). The Dunns now appeal. For the reasons stated herein, we reverse and remand.

FACTS

In 1998, the State of Texas and the Texas State Board of Securities investigated the activities of three companies, Austin Forex International, Inc., International Foreign Exchange Corporation and Ausfo-rex International, L.L.C. (collectively referred to as “AFI”). Operating in Austin, Texas, AFI was in the business of selling securities to the public in the form of investment contracts involving foreign currency. In the early part of September 1998, the President of AFI, Russell Erxle-ben (“Erxleben”), began making payments to company investors who were either his family or friends. From September 8, 1998, to September 11, 1998, Erxleben made payments of over $1.2 million to various family and friends. Subsequently, AFI closed its doors on September 14, 1998. Erxleben later pled guilty to securities fraud and was sentenced to serve time in a federal penitentiary. As a result of the securities and pyramid/Ponzi scheme operated by Erxleben and AFI, its investors lost more than $36 million in principal. The instant case arose out of funds that IsErxIeben paid out to the Dunns before AFI ceased doing business. The Dunns are the parents of Kimberly Erxleben, wife of Russell Erxleben.

On September 18, 1998, proceedings began in Travis County, Texas, district court against AFI and Erxleben. At the request of the Texas Attorney General and the Texas Securities Commissioner, Morten-son was appointed by the district court as temporary receiver over AFI. On April 30, 1999, Mortenson issued a demand letter to the Dunns advising them to return the payments they had received from AFI and Erxleben or they would face being added as parties defendant in the action against AFI and Erxleben. After receiving the demand letter, the Dunns and Mortenson engaged in negotiations concerning the funds at issue; however, on June 10, 1999, the Dunns, residents of Caddo Parish, filed suit against Mortenson in Caddo Parish district court. The Dunns sought a judgment declaring that they were not obligated to return the funds received from AFI and Erxleben. On June 15, 1999, Mortenson filed suit against, among others, the Dunns, in Travis County, Texas.

In the Texas action, the Dunns filed a pleading to make a special appearance in order to assert the defense of lack of personal jurisdiction and a general denial of Mortenson’s allegations. They further asked the court |3to sever and abate the action against them pending resolution of the Louisiana action, since the Texas action was between the identical parties and presented the same issues as those in the Louisiana action. Subsequently, the Texas court severed the action against the Dunns and consolidated it with a separate action that Mortenson had initiated against Kimberly Erxleben. The Dunns made no other appearances and filed no other documents with the Texas court. On January 31, 2002, Mortenson filed in Caddo Parish district court her responsive pleading containing her answer, defenses and counterclaims. Mortenson asked the court to dismiss or stay the instant case while the Texas action proceeded. Mortenson formally moved for this relief on March 8, 2002; and, on May 26, 2002, the district court denied Mortenson’s motions to dismiss or stay the Louisiana action. The Louisiana and Texas actions proceeded simultaneously.

The Texas action was set for trial on May 13, 2002, and the Louisiana action was set for trial on July 23, 2002. On April 2, 2002, the Dunns filed a petition for bankruptcy in the United States Bankruptcy Court, Western District of Louisiana. Mortenson promptly filed a motion to lift the automatic stay in the bankruptcy action to allow her to liquidate her claim against the Dunns. The Bankruptcy Court granted this motion on May 2, 2002. On May 13, 2002, Mortenson appeared for trial in the Texas action, but the Dunns did not make an appearance. Although the record is devoid of any indication that the Texas court made a finding on either the waiver of 1¿the Dunns’ special appearance or the issue of whether or not the court had personal jurisdiction over the Dunns, the Texas district court found that the Dunns had received adequate notice of the trial on the merits and Mortenson was allowed to proceed, offering testimony of witnesses and introducing evidence. Based upon the evidence, the Texas court rendered judgment in favor of Mortenson and against the Dunns, ordering the Dunns to pay $70,581 in actual damages and $20,536.17 as prejudgment interest on the actual damages; ordering Gloria Dunn to pay $141,162 in exemplary damages for her willful and malicious retention of other investors’ money; and ordering Leslie Dunn to pay the same amount for the same reason. The trial court also ordered the Dunns to pay Mortenson $30,000 in attorney fees through trial; $20,000 in the event of an appeal to the Texas Court of Appeals; and $10,000 in the event of an appeal to the Texas Supreme Court. The Dunns did not appeal the Texas court judgment.

Following entry of the Texas judgment, Mortenson sought to amend her answer in the Louisiana action by adding the defense of res judicata to her answer. The court granted leave for her to amend her answer; and, on June 28, 2002, Mortenson moved for summary judgment on her defense of res judicata, attaching a certified copy of the judgment from the Texas court. The Dunns argued against the motion, asserting that the Texas court had no jurisdiction over them because they did not make a general appearance in the Texas court and they properly objected to its lack of jurisdiction. The district court granted summary judgment in favor of | ¡¡Mortenson on July 25, 2002, and dismissed the Dunns’ suit for declaratory judgment against Mortenson with prejudice. The Dunns now appeal, raising the following assignment of error:

The district court erred when it granted defendant’s motion for summary judgment dismissing Leslie Dunn and Gloria Dunn (sic) (plaintiffs) demands against Janet Mortenson, permanent receiver for Austin Forex International Inc.; International Foreign Exchange Corp.; and Ausforex International, L.L.C. (Defendant) based upon the res judicata of the Texas judgment because the Texas judgment is not res judicata in that it does not involve the same causes of action between the same parties and it was not rendered by a court which had proper jurisdiction.

DISCUSSION

Summary judgments are reviewed on appeal de novo. Smith v. Our Lady of the Lake Hospital, Inc. 93-2512 (La.7/5/94), 689 So.2d 730. An appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate. The questions asked are found in La. C.C.P. art. 966(B), which, in pertinent part, asks every court:

Whether first, there is any genuine issue of material fact in dispute, and second, whether the mover is entitled to judgment as a matter of law.

Even if the first question is answered in the negative, if the second question cannot be answered in the affirmative, then summary judgment cannot be granted.

Since our system of jurisprudence is a union of states each having its own judicial system capable of adjudicating the rights and responsibilities of the parties brought before it and because there is always a risk that two or | fimore states will exercise their power over the same case or controversy, with the uncertainty, confusion and delay that necessarily accompany relitigation of the same issue, the Framers of our Constitution provided that:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State. U.S. Const, art. IV, § 1; Underwriters National Assurance Company v. North Carolina Life and Accident and Health Insurance Guaranty Association, 455 U.S. 691, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982).

The structure of our nation of states, each possessing equal sovereign powers, however, dictates some basic limitations of the full faith and credit principle. It is established that a court in one state, when asked to give effect to the judgment of a court in another state, “may constitutionally inquire into the foreign court’s jurisdiction to render that judgment.” Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). “A judgment of a court in one state is conclusive upon the merits in a court in another state only if the court in the first state had power to pass on the merits — had jurisdiction, that is, to render the judgment.” Id. (Emphasis added.) Consequently, before a court is bound by the judgment rendered in another state, “it may inquire into the jurisdictional basis of the foreign court’s decree.” Underwriters National Assurance Company, supra. (Emphasis added.) If that foreign court did not have jurisdiction over the subject matter or the relevant parties, full faith and credit need not be given to the sister state’s judgment. Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979).

The Supreme Court has held that, “it is axiomatic that a judgment must be supported by a proper showing of jurisdiction over the subject |7matter and over the relevant parties.” Underwriters National Assurance Company, supra. “The requirement that a court have personal jurisdiction recognizes and protects an individual liberty interest, which flows from the Due Process Clause.” Schultz v. Doyle, 00-0926 (La.1/17/01), 776 So.2d 1158. The test for personal jurisdiction requires that “the maintenance of the suit ... not offend traditional notions of fair play and substantial justice.” International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). “However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the ‘minimal contacts’ with that state that are a prerequisite to its existence of power over him.” Id. Restrictions on the jurisdiction of foreign courts over out-of-state defendants are more than a guarantee of immunity from inconvenient or distant litigation. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). “They are a consequence of territorial limitations on the power of the respective States.” Id.

In the case sub judice, Mortenson argues that the res judicata effect of the Texas court’s judgment precludes relit-igation of claims that have already been adjudicated. This argument, however, misses the crucial step of first determining whether or not the Texas court had jurisdiction to hear the claims against the Dunns. A foreign court judgment can be made a judgment in a sister state “only if the court purporting to render the original judgment has power to render such a judgment.” Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945).

| sThe relevant law to determine whether the foreign court had personal jurisdiction is the law of the forum state rendering the original judgment. Lepard v. Lepard, 31,351 (La.App.2d Cir.12/9/98), 722 So.2d 367. Mortenson argues that, according to Texas law, the Dunns waived their special appearance in Texas and submitted themselves to the jurisdiction of the Texas court, citing the opinions of two Texas courts, namely Bruneio v. Bruneio, 890 S.W.2d 150 (Tex.App.-Corpus Christi 1994, no writ), and Steve Tyrell Productions, Inc. v. Ray, 674 S.W.2d 430 (Tex. App.-Austin 1984, no writ). In both of these cases the Texas courts held that, under Texas Rule of Civil Procedure 120a, when an out-of-state defendant files a special appearance in Texas challenging personal jurisdiction of the Texas court, the defendant must seek a hearing on this issue or, in effect, he will waive his special appearance and the trial court will then have proper jurisdiction over the case. On review of the Texas default judgment and the | ^record in its entirety, we determine that both Bnmeio and Steve Tyrell Productions, Inc. are distinguishable from what occurred in the instant case. In Bruneio and Steve Tyrell Productions, Inc., both Texas trial courts made specific findings that they had personal jurisdiction over the defendants. In the case sub judi-ce, on the record before us it appears that the Texas trial court neither addressed the issue of whether or not the Dunns waived their special appearance nor did the court make a finding as to whether or not it had personal jurisdiction over the Dunns. It is on these two points that the Dunns rely in arguing that the Texas judgment is not entitled to full faith and credit. We can find no Texas case that holds that a Texas trial court does not have to make a specific finding of whether or not it has personal jurisdiction over an out-of-state defendant. We further note that Texas Rule of Civil Procedure 120a(2) sets forth that, “[a]ny motion to challenge the | injurisdiction provided for herein shall be heard and determined before ... any other plea or pleading may be heard.” (Emphasis added.)

Louisiana courts in the past have also addressed similar personal jurisdiction issues. Significantly, none of these courts have held that the law in Louisiana requires a Louisiana court to give full faith and credit to a judgment from a foreign court when the foreign court made no specific finding that it had personal jurisdiction over the out-of-state defendant. In Allenberg Cotton Company, Inc. v. Stacy, 384 So.2d 514 (La.App. 2d Cir.1980), we stated that, in order to give full faith and credit to a foreign judgment, it is not required that the question of personal jurisdiction be actually litigated in the rendering state, but “only that the opportunity be afforded to the out-of-state defendant to litigate the jurisdictional question” before the foreign court. In Allenberg Cotton Company the defendant had the opportunity to litigate the issue of personal jurisdiction in the foreign court and the court specifícally found that it had jurisdiction over the out-of-state defendant.

In Boudreaux v. Welch, 249 La. 988, 192 So.2d 356 (1966), our supreme court found that, when a person waives service of process and enters a general appearance before a foreign court, this is “sufficient to foreclose the jurisdictional question as res judicata,” rendering the foreign judgment unassailable. Since there was consent to the jurisdiction of the h foreign court, there was no need for the foreign court to make a specific finding of personal jurisdiction.

More recently, one of our sister circuits, in Essex Crane Rental Corp. v. D & L Machine Works, 93-1656 (La.App. 3d Cir.10/5/94), 643 So.2d 913, writ denied, 94-2742 (La.1/6/95), 648 So.2d 932, faced a similar factual situation. The court in Essex Crane Rental Corporation followed our reasoning in Allenberg Cotton Company, supra, finding that, even though the defendant did not appear at the proceedings in a Texas trial court, a Texas default judgment should be given full faith and credit in Louisiana because the plaintiff had been given his opportunity to challenge the jurisdiction over him in Texas. In Essex Crane Rental Corporation, however, like each of the other cases cited herein, in addition to the defendant having had his opportunity to challenge jurisdiction, the Texas court speciftcally found that it had jurisdiction over him .

The premise of the holdings in Bou-dreaux, supra, Essex Crane Rental Corporation, supra, and Allenberg Cotton Company, supra, that it is necessary for a Louisiana court to give full faith and credit to a foreign judgment as long as the out-of-state defendant is given an opportunity in the foreign court to challenge jurisdiction over him, is based on either the fact that the foreign court made a specific finding that it had jurisdiction over the I ^defendant or because the defendant submitted himself to the jurisdiction of the court in the foreign state. All three holdings are distinguishable from the case sub judice because, here, the Dunns did not consent to jurisdiction of the Texas court and we find no evidence in the record that the Texas trial court ever made a specific finding that it had personal jurisdiction over the Dunns. Mortenson, in effect, is asserting that Louisiana courts are required to give full faith and credit to a foreign judgment when the foreign court made no specific finding that it has personal jurisdiction over the out-of-state defendant. As previously stated, no court in Louisiana has held that, under the law in Louisiana, a Louisiana court is so required and we decline to make such a ruling here.

We have, however, previously held that a Louisiana trial court is obligated to consider and rule upon whether a sister state’s judgment is entitled to full faith and credit. Holiday Hospitality Franchising, Inc. v. Grant, 36,035 (La.App.2d Cir.5/8/02), 817 So.2d 449. In the instant case, our Louisiana court should afford full faith and credit to the Texas judgment if further evidence is provided to the court showing that the Texas trial court had personal jurisdiction over the Dunns. Accordingly, we find that, on the record before us, the trial court erred in granting the motion for summary judgment and that Mortenson is not entitled to judgment as a matter of law.

^CONCLUSION

For the foregoing reasons, the judgment of the trial court against Plaintiffs, Leslie Dunn and Gloria Dunn, is reversed and this case is remanded with instructions for the trial court to conduct an evidentiary hearing to determine whether it should afford full faith and credit to the Texas judgment. Costs of this appeal are assessed to Defendant, Janet Mortenson.

REVERSED AND REMANDED.

      . Erxleben was charged with operating a pyramid/Ponzi scheme where original investors of the companies where paid out of funds received by later investors, causing the original investors to think that the company was making a profit.

      . The Texas court later confirmed Mortenson as the permanent receiver for AFI on June 25, 1999.

      . The Dunns received $20,102.52 from AFI and Erxleben, after originally investing $20,000.

      . In Texas, the special appearance is the procedure by which a defendant objects to the court's power to exercise personal jurisdiction under constitutional due process. The special appearance must be the first pleading the defendant files or he waives any denial of jurisdiction of the Texas court. In a special appearance, the defendant challenges personal jurisdiction by pleading and proving that (1) it is not a Texas resident; (2) it did not have minimum contacts with Texas; and (3) even if it had some minimum contacts with Texas, the assumption of jurisdiction will offend traditional notions of fair play and substantial justice. The special appearance is found in Rule 120a of the Texas Rules of Civil Procedure.

      .In Texas, a plea in abatement raises defects not apparent from the face of the pleading that prevent the case from going forward in its present state, such as when a case is pending in another court. The plea in abatement is found in Rule 93 of the Texas Rules of Civil Procedure.

      . The Dunns also argue that Mortenson's motion for summary judgment based on res judi-cata is, in reality, an exception of res judicata. Since it is an exception, the Dunns contend that Mortensen has not carried the burden required of her to prove that the Texas action should be given full faith and credit.

      . Although these Texas opinions have interpreted the Texas Rule of Civil Procedure 120a to compel defendants to seek a hearing on the issue of a special appearance within a reasonable time or else it is waived, we note that the actual Rule does not so require. Texas Rule of Civil Procedure 120a provides:
      1.Notwithstanding the provisions of Rules 121, 122, 123, a special appearance may be made by any party either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amendable to process issued by the courts of this State. A special appearance may be made as to an entire proceeding or as to any severable claim involved therein. Such special appearance shall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion; provided however, that a motion to transfer venue and any other plea, pleading or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance; and may be amended to cure defects. The issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of such special appearance. Every appearance, prior to judgment, not in compliance with this rule is a general appearance.
      2. Any motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard. No determination of any issue of fact in connection with the objection to jurisdiction is a determination of the merits of the case or any aspect thereof.
      3. The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony. The affidavits, if any, shall be served at least seven days before the hearing, shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify.
      Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

        Should it appear to the satisfaction of the court at any time that any of such affidavits are presented in violation of Rule 13, the court shall impose sanctions in accordance with that rule.
      4. If the court sustains the objection to jurisdiction, an appropriate order shall be entered. If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any purpose. Any such special appearance or such general appearance shall not be deemed a waiver of the objection to jurisdiction when the objecting party or subject matter is not amendable to process issued by the courts of this State.

      . The court found that,
      “At trial it was noted that, the Tennessee court had found it had jurisdiction over the defendant."

      . In Boudreaux, the party at issue executed a waiver of service and entry of appearance, which stated,
      1 the undersigned, Owen J. Mire, being advised that my wife, Katherine G. Mire has filed a suit in the Chancery Court of Harrison County, Mississippi against me for a divorce, do hereby waive the service of process on me and do enter my appearance in said cause and consent that the same be tried at the September, 1950 term of said court or at any succeeding time thereof.’

      . The court found that,
      "The judgment reflects the Texas court’s specific finding that it had subject matter over the dispute and personal jurisdiction over the defendant.”


source: Caselaw Access Project

author: JjWILLIAMS, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Gueorgui K. RAEV, Appellant.
    No. 36,847-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.
    Peter J. Black, Shreveport, for Appellant.
    Richard P. Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, William J. Edwards, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and KOSTELKA (Pro Tempore), JJ.
   JjWILLIAMS, Judge.

The defendant, Gueorgui Raev, was charged by bill of information with attempted second degree murder, a violation of LSA-R.S. 14:30.1 and 14:27. The defendant entered a guilty plea to the reduced charge of attempted manslaughter, a violation of LSA-R.S. 14:31 and 14:27. The district court imposed a sentence of twelve years at hard labor. Defendant filed a motion for reconsideration of sentence, but he withdrew the motion prior to the court’s ruling. Defendant appeals his sentence as excessive. We affirm.

DISCUSSION

The evidence of record shows that on November 12,1999, defendant and his wife became involved in an altercation at their home in Shreveport, when she objected to his rough manner of feeding their infant child. During the argument, defendant became enraged when his wife told him to leave the house. The defendant struck the victim with his fist and then stabbed her in the throat with a letter opener. When the victim fell to the floor, bleeding profusely, the defendant kicked her in the back, lower ribs and buttocks severely enough to break her skin. The victim was able to escape to a neighbor’s house for help. She underwent emergency surgery to repair an injured jugular vein. Defendant fled the scene in a van owned by his employer, stole a truck in DeSoto Parish and drove to Texas, where he was later apprehended.

Subsequently, defendant was charged with attempted second degree murder. Pursuant to the plea agreement, he pled guilty to attempted manslaughter and was sentenced to serve twelve years at hard labor.

1 p.The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that the goals of sentencing could have been accomplished with a less severe term of imprisonment. When, as in this case, a defendant has withdrawn his motion for reconsideration of sentence, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

Constitutional review considers whether the sentence imposed is too severe in fight of the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in fight of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we will not set aside a sentence as excessive. State v. Caraway, 28,769 (La.App.2d Cir.10/30/96), 682 So.2d 856. A conviction for attempted manslaughter is punishable by imprisonment at hard labor for not more than twenty years.

Prior to imposing sentence, the district court conducted a sentencing hearing and reviewed a pre-sentence investigation report. The court noted the reduction in sentencing exposure gained by defendant through the plea ^bargain and considered the facts of the case. The record supports the district court’s findings that defendant was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of the offense.

As aggravating factors, the court determined that defendant had manifested deliberate cruelty by beating and kicking the victim after she fell to the ground and by leaving her to possibly bleed to death. In addition, the court found that the crime had caused a substantial economic loss to the victim and a permanent physical scar. The court also observed that the defendant had used a dangerous weapon in the offense and had committed another felony, unauthorized use of a moveable, during his flight from the crime scene for which he was not separately punished.

In mitigation, the court believed that defendant had been in a state of depression at the time of the offense. The court noted that although he did not have a prior criminal history, the defendant, a Bulgarian citizen, had been illegally residing in the United States for several years. The court recognized that he had participated in all of the available rehabilitation programs while in custody and expressed the opinion that defendant’s offense resulted from circumstances unlikely to recur. However, the court was concerned that although defendant had expressed remorse for his criminal act, much of his statement to the court related to defendant’s efforts to improve his mental health and seemed to be more of a justification of his deeds, rather than an expression of true sorrow about the violence he had inflicted upon his former wife.

|4Based upon this record, we do not find constitutional error. We conclude that the district court provided adequate reasons for imposition of this sentence, which is in the middle of the statutory sentencing range for the offense of conviction. In addition, the record demonstrates that the court adequately considered defendant’s personal history and any arguably mitigating factors.

Considering the circumstances of this case, the sentence imposed is neither grossly disproportionate to the seriousness of the offense committed nor shocking to the sense of justice. There is no showing of an abuse of the district court’s discretion in sentencing this defendant. Thus, we cannot say that the sentence is constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: I, PEATROSS, J.

text:
    Mary Ruth HAMDAN, as Natural Tutrix of the Minor, Ramsey Hamdan, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Carl E. Gresham, Defendants-Appellees.
    No. 36,883-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Lunn, Irion, Salley, Carlisle & Gardner, by W. Orie Hunter, III, Shreveport, for Appellant.
    Hicks, Hubley & Marcotte, by Michael S. Hubley, Shreveport, for Appellees.
    Before WILLIAMS, PEATROSS and KOSTELKA (Pro Tempore), JJ.
   I, PEATROSS, J.

This appeal arises from a summary judgment granted by the trial court in favor of defendants, Carl Gresham (“Gresham”) and State Farm Mutual Automobile Insurance Company (“State Farm”), and against the plaintiff, Mary Hamdan (“Plaintiff’). For the reasons stated herein, we affirm.

FACTS

On October 13, 2000, 15-year-old Ramsey Hamdan (“Hamdan”) was riding a four-wheeler with his friend and passenger, Ryan Allen, near the intersection of East Flournoy Lucas Road and Louisiana Highway One. The boys had been riding in a pecan orchard on the south side of Flournoy Lucas Road, west of its intersection with the highway. At approximately 5:45 p.m., they decided to cross Flournoy Lucas to go to a house of a friend on the north side of the road. The eastbound lane of Flournoy Lucas was congested with automobiles that had stopped for a train, although the train had already just passed through at the time of the accident. The four-wheeler traveled east just off the roadway, then crossed a ditch, entered the eastbound lane of Flournoy Lucas Road between two vehicles and attempted to cross the westbound lane. A Chevrolet Tahoe, driven by Gresham, was traveling in the westbound lane of Flournoy Lucas Road and struck the four-wheeler driven by Hamdan as he attempted to cross the westbound lane. Hamdan was injured as a result of the accident. He sustained fractures to his tibia, fíbula and hip.

| aIn October 2001, Mary Ruth Hamdan, as natural tutrix of Hamdan, filed suit against Gresham and his automobile insurer, State Farm (collectively “Defendants”). After taking the depositions of the parties involved, Defendants filed a motion for summary judgment, asserting that Hamdan was at total fault for the accident because he failed to yield to Gresham and because he pulled directly into Gresham’s path at a time when Gresham could not avoid a collision. In support of the motion for summary judgment, Defendants attached Gresham’s deposition, the deposition of Hamdan and the affidavit of Michael Nickel (“Nickel”), who was an eyewitness to the accident.

Hamdan stated in his deposition that he hardly remembered anything about the accident after pulling between the two cars in the eastbound lane of Flournoy Lucas Road before attempting to cross the westbound lane. He never saw Gresham’s vehicle and could not remember anything about the actual impact, including whether or not he checked for traffic before entering the westbound lane.

Gresham stated in his deposition that he was traveling west on Flournoy-Lucas Road and had stopped at a red light at the intersection of Flournoy-Lucas Road and the highway. When the light turned green Gresham traveled through the intersection and across the railroad track. Traffic was backed up in the eastbound lane, but Gresham had no cars in front of him as he traveled in the westbound lane. Gresham also testified that he was traveling within the posted speed limit. According to Gresham, the four-wheeler came out from behind either a minivan or a small truck and [3he immediately slammed on his brakes, but the vehicle came to rest with a back tire on the four-wheeler and the right front tire on Hamdan. Gresham stated that he never saw the four-wheeler or the two boys until they were in his lane of travel immediately prior to the impact.

The last document submitted in support of the motion for summary judgment was the affidavit of Nickel, whose vehicle was stopped in the eastbound lane of Flour-noy-Lucas Road at the time of the accident. Nickel observed Hamdan driving the four-wheeler parallel to Flournoy-Lu-cas Road in an easterly direction and he watched Hamdan jump the eastbound roadside ditch, drive in front of the vehicle that was stopped directly in front of him and then attempt to cross the westbound lane. Nickel stated that he did not see Hamdan check for westbound traffic before attempting to cross and that Gresham did not appear to be speeding or driving “in anything but a safe manner.” Nickel also stated that he did not see how Gresham could have avoided a collision with the four-wheeler and that, after the accident, he had a chance to observe Gresham who showed no evidence of suffering from any type of impairment.

Plaintiff filed a memorandum in opposition to the motion for summary judgment, but placed no affidavits, additional depositions or other evidence before the trial court. Plaintiff also sought to strike Nickel’s affidavit on the grounds that it contained conclusory statements, but the trial court denied the motion based on Nickel’s personal knowledge of the circumstances of the accident as an eye-witness.

14At the conclusion of the summary judgment hearing on July 22, 2002, the trial court granted the motion for summary judgment in favor of Defendants, dismissing the demands of Plaintiff. The trial judge stated that he granted summary judgment because there had been no showing of any fault or any negligence on the part of Gresham. The trial judge noted that Gresham’s affidavit placed no blame on him and that Hamdan basically did not remember anything. Furthermore, the trial judge remarked that Nickel, whose affidavit the court specifically stated was not being considered for accident reconstruction purposes, said that he did not see anything that would indicate any fault or negligence on Gresham’s part. Plaintiff now appeals, arguing that the trial court erred in granting Defendants’ motion for summary judgment as there were material issues of genuine fact which precluded such a decision.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Further, La. C.C.P. art. 966(C)(2) provides that:

Although the burden of proof remains with the movant, 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 mov-ant’s burden on the motion does not require him to ^negate all essential elements of the adverse party’s claim, action, or defense, but to point out the absence of factual support for one or more elements essential to the claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he can satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,556 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Even though Plaintiff admits that Ham-dan made a mistake in judgment in assuming that the westbound lane of Flournoy-Lucas Road was blocked by a train, Plaintiff argues that Gresham violated his duty to drive prudently given the existing conditions at the time of the accident. Since the traffic was congested at the railroad crossing, Plaintiff asserts that Gresham should have been driving at a lower rate of speed, that he should have been more observant and, therefore, that his actions were a contributing cause of the accident. We do not agree.

Gresham stated in his deposition that, although he was not watching his speedometer, he knew he was in no hurry and had been stopped at the red light, so he “couldn’t be going too fast.” He stated that he did not think he was traveling over the posted speed limit of 45 mph. Furthermore, as previously noted, Nickel indicated in his deposition that, at the time of the accident, Gresham did not appear to be speeding “or driving in anything but a safe manner.” Although there was an intersection and a railroad track near the site of the accident, Gresham, who had been stopped at the red light at | fithe intersection, had cleared both the intersection and the railroad track prior to the time of the accident. The only issue remaining is whether the presence of a line of traffic traveling in the opposite direction from Gresham required him to use extraordinary care in driving past that line of vehicles. We find that, when Gresham passed these vehicles, he was only required to use the ordinary standard of care that is expected and required of all drivers and that he did not have to take extraordinary precaution by driving even more prudently than the ordinary standard of care.

Plaintiff attempts to rely on the case of Lennard v. State Farm Mutual Automobile Insurance Company, 26,396 (La.App.2d Cir.1/25/95), 649 So.2d 1114, in support of the argument that Gresham was driving faster than was reasonable and prudent under the conditions existing at the time of the accident. In Lennard, the plaintiff was driving on one of the busiest roads in Minden, Louisiana, at a time when traffic was very heavy. The plaintiff was stopped in the inside lane of traffic, waiting to turn left across two opposing lanes of traffic and into a restaurant parking lot. A motorist in the opposite inside lane yielded the right of way to the plaintiff and motioned for him to proceed. The plaintiff was struck as he attempted to cross the outside opposing lane. Although most of the fault was assessed to the plaintiff, this court upheld a jury finding of fault on the part of the motorist who struck the plaintiff because of the combination of circumstances existing. The motorist who struck the plaintiff was driving in very heavy traffic, the sun was shining in her face and the traffic in the lane immediately to her left was congested as she approached the busy | .Intersection. An eyewitness indicated it would have been more prudent for her to have slowed as she approached the intersection, and the investigating officer testified that she had ample space on the road in which to maneuver and avoid the accident.

The traffic conditions at the time of the accident in the case sub judice are dramatically different than those in Len-nard and are too dissimilar to warrant a finding of fault on Gresham. Although Gresham did have traffic in the opposing lane, he was driving away from, not toward the intersection. There was no bright sun shining in his face and there was no restaurant, road or other obvious attraction for motorists on Gresham’s side of the road. Also, the presence of a driveway to a residence, as opposed to a street or road, would not change our conclusion. Moreover, even if Gresham had some opportunity to avoid hitting Hamdan, he had nowhere to maneuver and avoid the accident on this two-lane road, which contained no shoulder on the side of the road. There has been no evidence presented to show that, when Gresham passed the vehicles in the eastbound lane, he was using anything less than the ordinary standard of care that is expected and required of all drivers.

Defendants have shown that there is an absence of factual support for the essential element of Plaintiffs claim that Gresham committed any negligence or had any fault in the accident. The burden, therefore, shifted to Plaintiff to show support sufficient to establish that she could satisfy her evidentiary burden of proof at trial. Plaintiff failed to come forward with evidence showing that Gresham was even partly negligent or partly at fault. |s For the foregoing reasons, we conclude that, since the evidence presented on summary judgment showed the absence of fault on the part of Gresham, there is no genuine issue of material fact in dispute in this case; and, therefore, summary judgment is appropriate. Plaintiffs assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court against Plaintiff, Mary Hamdan, is affirmed. Costs of this appeal are assessed to Plaintiff, Mary Hamdan.

AFFIRMED.

      . Flournoy-Lucas is a two-lane road, running east and west and containing no shoulder on the side of the road; Highway One runs north and south, and a railroad runs parallel near the west side of the highway.


author: hKOSTELKA, Judge Pro Tempore.

text:
    SAFEWAY INSURANCE COMPANY OF LOUISIANA, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 36,853-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Alan T. Seabaugh, Shreveport, for Appellant.
    Tracy L. Oakley, Ruston, for Appellee.
    Before WILLIAMS, PEATROSS and KOSTELKA (Pro Tempore), JJ.
   hKOSTELKA, Judge Pro Tempore.

State Farm. Mutual Automobile Insurance Company (“State Farm”) appeals a judgment by the Shreveport City Court against it in the amount of $1,394.99 and in favor of Safeway Insurance Company of Louisiana (“Safeway”). For the following reasons, we affirm.

Facts

On November 2, 2000, Jopawnna Baines (“Baines”) borrowed, with permission, the vehicle of her friend, Jackie Holloway (“Holloway”) while Baines’ vehicle was being repaired. Holloway’s vehicle was insured by an insurance policy issued by Safeway (the “Safeway policy”). Baines’ vehicle was insured by a policy of insurance issued by State Farm (the “State Farm policy”).

As Baines was operating Holloway’s vehicle in Shreveport, Louisiana, the vehicle came in contact with a child, Tori Ladd, who was walking along the street upon which Baines was traveling. As a result of the accident, the child was injured and received medical treatment for which medical expenses were incurred. Safeway (Holloway’s insurer) paid Ladd’s parents, $1,394.99 in full and final settlement of any and all claims for the injuries and expenses incurred on behalf of their child as a result of the accident.

Subsequently, Safeway filed its Petition of Subrogation against State Farm, asserting that the State Farm policy which covered Baines’ vehicle, provided primary liability coverage for the accident. Safeway further claimed that it was subrogated for the amount of $1,394.99 it paid in settlement. Prior to trial, State Farm filed a Peremptory Exception of No hCause of Action based on La. R.S. 22:655, Louisiana’s Direct Action Statute. It also filed a Motion for Summary Judgment. State Farm’s exception and motion were reserved for argument at trial of the matter.

After issuing its written Opinion, which included its findings and reasons for judgment, the trial court rendered Judgment in favor of Safeway and against State Farm in the amount of $1,394.99. This appeal by State Farm ensued.

Discussion

The minimal monetary amount at issue in this appeal truly belies the interesting and complex issues of law before us. On appeal, State Farm argues various assignments of error. Whereas there are no facts in dispute, State Farm claims that the trial court made various errors of law. Appellate review of questions of law is to determine if the trial court was legally correct or incorrect. McDonald v. City of Bastrop, 31,238 (La.App.2d Cir.10/28/98), 720 So.2d 1256.

La. R.S. 22:14.06(F)

At the heart of this litigation is the issue of which insurer, Safeway or State Farm, provided primary insurance coverage for Baines’ fault in striking the Ladd child. Safeway looks to La. R.S. 22:1406(F) addressing temporary substitute vehicles and argues that pursuant to the statute, State Farm provided primary liability coverage. State Farm maintains that pursuant to its policy terms, it would be an excess insurer for temporary ^substitute vehicles, and that Safeway and the trial court erroneously interpret the statute.

Louisiana R.S. 22:1406(F) states as follows:

Every approved insurance company, reciprocal or exchange, writing automobile liability, physical damage, or collision insurance, shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and rental private passenger automobiles any and all such insurance coverage in effect in the original policy or policies. Where an insured has coverage on multiple vehicles, at least one of which has comprehensive and collision insurance coverage, that comprehensive and collision substitute coverage shall apply to the temporary substitute motor vehicle or rental motor vehicle. Such insurance shall be primary. However, if other automobile insurance coverage is purchased by the insured for the temporary substitute or rental motor vehicle, that coverage shall become primary. The coverage purchased by the insured shall not be considered a collateral source. (Emphasis added).

A plain reading of the statute does not clearly indicate whether the Legislature intended for liability insurance as well as comprehensive and collision insurance to be primary for temporary substitute motor vehicles (as Safeway argues), or that “such insurance” referred to in the statute as being primary only applied to comprehensive and collision coverage (as State Farm argues); thus, we must examine the statute to determine the true intent of the Legislature.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law must be applied as written. La. C.C. art. 9; La. R.S. 1:3, 1:4. Roberts v. State Farm Mut. Auto. Ins. Co., 27,501 (La.App.2d Cir.11/01/95), 662 So.2d 821. However, when the language of a statute is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10; Thomas v. Insurance Corp. of Amer., 93-1856 (La.02/28/94), 633 So.2d 136. An ambiguous statute must be construed in a manner to impart the meaning intended by the Legislature and to avoid absurd results. Lopez v. City of Shreveport, 449 So.2d 1184 (La.App. 2d Cir.1984), writ denied, 452 So.2d 175 (1984). To aid in interpreting an ambiguous statute, the court may look to legislative history to discern the intent of the Legislature. State, Dept. of Social Services v. Parker, 595 So.2d 815 (La.App. 2d Cir.1992).

Louisiana R.S. 22:1406(F) was amended to its present form in the 1997 regular session of the Louisiana Legislature. At issue in this case is the sentence emphasized herein, which was added by the 1997 amendment along with the two sentences which follow it. A review of the legislative history from the 1997 House Legislative Services digest states that the “proposed law [i.e., La. R.S. 22:1406(F) presented as HB No. 687 and enacted as Act 951] retains present law and provides that the insured’s policy of insurance shall be primary.” Emphasis added. The stated purpose indicates no distinction between liability insurance and comprehensive/collision insurance coverage for temporary substitute vehicles. Thus, it appears from the stated legislative history that the Legislature intended for all of the insured’s insurance to be primary on temporary substitute vehicles. So considering, pursuant to La. R.S. |fi22:1406(F), State Farm’s liability insurance of Baines would be the primary coverage of the temporary substitute vehicle driven by Baines.

We note that an adherence to the State Farm policy language about excess coverage regarding temporary substitute vehicles would produce a different result. However, policy language must yield to conflicting statutory law. Roberts, supra, citing, Graham v. American Cas. Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972); Malone & Johnson, 15 La. Civil Law Treatise (Insurance Law & Practice), § 4.

Safeway’s Subrogation Claim

Concluding that State Farm was primarily obligated to the Ladds despite Safeway’s payment to them, we must next ascertain whether Safeway had a valid claim against State Farm for the amount of the payment made to the Ladds.

Subrogation is the substitution of one person or entity to the rights of another. La. C.C. art. 1825. As stated by the Louisiana Supreme Court in A. Copeland Enterprises, Inc. v. Slidell Memorial Hosp., 94-2011 (La.06/30/95), 657 So.2d 1292, “[S]ubrogation is the legal fiction established by law whereby an obligation, extinguished with regard to the original creditor by payment which he has received from a third person, or from the | ¡^original debtor but with funds that a third person has provided, is regarded as substituting in favor of this third person who in essence steps into the shoes of the original debtor and is entitled to assert, in the measure of what he has paid, the rights and actions of the former creditor.” Subrogation may be either conventional or legal. La. C.C. art. 1825. It may result from either the agreement of the obligor or the obligee or both with a third person (i.e., conventional sub-rogation), or directly from the operation of law (i.e., legal subrogation). Thus, the intention of subrogation is to protect such persons who perform certain acts. A. Copeland Enterprises, Inc., supra.

When subrogated to the rights of the insured, the insurer stands in the shoes of the insured and thereby acquires the independent right to assert the actions and rights of the insured. Barreca v. Cobb, 95-1651 (La.02/28/96), 668 So.2d 1129; La. C.C. arts. 1825 and 1826; Bailsco Blades & Casting, Inc. v. Fireman’s Fund Ins. Co., 31,876 (La.App.2d Cir.05/05/99), 737 So.2d 164.

In its Petition of Subrogation, Safeway alleged to be subrogated to the rights of Holloway, its insured, as a result of its payment of settlement proceeds to the Ladds. Clearly, its policy provides such. It did not claim any other rights of subro-gation as to Baines or the Ladds. After a hearing on State Farm’s exception of no cause of action, the trial court ruled in favor of Safeway, noting that Safeway could be potentially subrogated to (1) “its insured’s rights against State Farm for not paying the claim” or (2) the Ladds. We determine that Safeway properly made a subrogation claim; however, it was neither subrogated to the rights of Holloway, as claimed, or j 7the Ladds, as the trial court determined. Instead, we determine that Safeway is subrogated to the rights of Baines, for the following reasons.

Although not specifically claimed by Safeway, it clearly would be subrogated to the rights of Baines in the case sub judice. Baines operated Holloway’s vehicle with permission, which, under the clear terms of the Safeway policy, made Baines its insured. State Farm concedes that Baines was also Safeway’s insured under the Safeway policy. The Safeway policy further provides “[I]n the event of any payment under this policy, [Safeway] shall be subrogated to all the insured’s rights of recovery therefor against any person or organization....” Thus, Safeway had the right to assert any claim of Baines arising from the collision with the Ladd child-another fact conceded by State Farm.

However, State Farm argues in brief that Safeway could not assert subrogation rights as to Baines, because she had no rights or claims against State Farm as a result of her collision in Holloway’s vehicle, as she suffered no damages to her person or property. However, State Farm overlooks the rights Baines has against it arising from the contractual relationship between her and State Farm vis-d-vis the State Farm policy issued to Baines. Obviously, she had a right to assert a claim against State Farm in the event it [^failed to provide coverage as stated in the policy. See, La. C.C. art.1994. So considering, Safeway, as subrogee of Baines, and under La. R.S. 22:1406(F), clearly has a subrogation claim against State Farm in this proceeding.

Moreover, we are not constrained by the fact that Safeway failed to specifically claim that it was subrogated to the rights of Baines in this case. The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. The purpose of this article is to give the appellate court complete freedom to do justice on the record regardless of whether a particular legal point or theory was made, argued, or decided by the court below. Id., Comment (a); see also, Rachal v. Rachal, 35,074 (La.App.2d Cir.10/12/01), 795 So.2d 1286. Considering the record before us, including the policy of insurance issued by Safeway and La. R.S. 22:1406(F) making State Farm primary insurer, it is clear that Safeway was subrogated to the rights of Baines against State Farm. It is only fair and equitable that Safeway be able to recoup the monies paid to the Ladds, which, under the statute, were primarily owed by State Farm.

Direct Action Statute

Finally, State Farm argues that the trial court erred in allowing a cause of action by Safeway directly against State Farm. It argues that | ^pursuant to La. R.S. 22:655 (the “Direct Action Statute”), there is no provision therein that would allow Safeway to proceed directly against State Farm. However, as determined by the Louisiana Supreme Court in Cacamo v. Liberty Mut. Fire Ins. Co., 1999-3479 (La.06/30/00), 764 So.2d 41, 43:

The Direct Action Statute is designed to grant a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured. It was enacted to give special rights to tort victims, not to insureds with contract claims against a defendant. In this case, plaintiffs do not purport to file their claims under the Direct Action Statute and have no need to do so.... (Citations omitted).

Here, as discussed, Safeway’s claim against State Farm is as subrogee of Baines — whose own rights against State Farm derive from the terms of the State Farm policy of insurance. Just as the Cacamo plaintiffs, any right of action Baines had against State Farm was in contract, giving her and Safeway, as subro-gee, the right to make claims directly against State Farm. So considering, State Farm’s reliance on the Direct Action Statute is misplaced, and the trial court was not in error finding that the Direct Action Statute was inapplicable in this particular proceeding.

Conclusion

For the foregoing reasons, we conclude that the trial court did not err in granting judgment in favor of Safeway Insurance Company of Louisiana and against State Farm Mutual Automobile Insurance Company. The costs of this appeal are assessed to State Farm.

AFFIRMED.

      . The Stipulation of Facts by the parties indicates that Holloway’s vehicle driven by Baines would meet the broad definition of a temporary substitute vehicle under both policies. This point is undisputed by Safeway and State Farm.

      . Although this determination is made based on the jurisprudence regarding the interpretation of ambiguous statutes and a subsequent review of the legislative history regarding this statute, we question whether the statute was intended to extend to such a situation involving two individuals and the temporary loan of a vehicle where the driver’s vehicle was inoperative. Under both policies, the definition of a temporary substitute vehicle is broad enough to encompass the vehicle driven by Baines. However, the sentence in the statute which allows the insured to purchase “other automobile insurance coverage” for the temporary substitute vehicle, which then becomes the primary insurance, suggests that the temporary substitute vehicle is one procured from a commercial establishment in the business of offering such a service. We are compelled nonetheless to interpret the statute pursuant to its legislative history and conclude that State Farm is primary insurer.

      . The Safeway policy defines “Persons Insured” as "(1) the named insured” or "(2) any other person using such automobile to whom the name insured has given permission, provided the use is within the scope of such permission.”

      . Notably, the right of subrogation is not limited to the “named insured.”

      . Also, La. R.S. 22:1220(A) imposes a duty of good faith and fair dealing in performance of the insurance contract. See also, La. C.C. art.1983; Williams v. Louisiana Indem. Co., 26,887 (La.App.2d Cir.06/21/95), 658 So.2d 739, 742. Breach of this particular duty by the insurer renders it liable for any damages, foreseeable or not, that are a direct consequence of its failure to perform. La. C.C. art. 1997; La. R.S. 22:1220(A). No allegations of bad faith were made against State Farm by Safeway; however, the statute is illustrative to show that Baines potentially had rights against State Farm.


author: h GASKINS, J.

text:
    Betty ARMSTRONG, Plaintiff-Appellant, v. HORSESHOE CASINO, Defendant-Appellee.
    No. 36,927-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.
    Betty Armstrong, Pro Se Claimant-Appellant.
    Wiener, Weiss & Madison, By: Larry Feldman, Jr., Mark L. Hornsby, Counsel for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   h GASKINS, J.

In this appeal from a denial of worker’s compensation benefits, the pro se claimant, Betty Armstrong, contends that the worker’s compensation judge (WCJ) erred in failing to award her benefits. We affirm.

FACTS

The claimant began working as a slot attendant at the Horseshoe casino in December 1998. On January 29, 2000, she reported a “near fall” on a ramp leading onto the boat as she arrived for work. She complained of right shoulder pain which radiated from the shoulder to the right anterior chest; over the nex* few weeks she also complained of right elbow pain which was diagnosed as tennis elbow. Horseshoe provided medical care, including occupational therapy, for the claimant and paid for her medical expenses. Pursuant to doctor’s orders, she was allowed to perform light duty at work. On March 31, 2000, her right shoulder and elbow problems were deemed resolved by the doctor at Willis-Knighton Work Kare and she was released to regular work without limitations.

In October 2000, the claimant was seen by an orthopedic surgeon, Dr. Lewis Jones. She told him that she no longer had right shoulder pain but that she still had right elbow pain. She further told him that she had no prior history of problems with her right upper extremity. However, the claimant’s medical records contradict this. For several years, she had been suffering from fibrositis. Also, on December 10, 1999, about six weeks before her | ¿work-related accident, she had been treated for swelling in the right arm which was diagnosed as acute right arm fibromyositis.

Dr. Jones ordered a nerve conduction study; the results showed bilateral carpal tunnel syndrome which was severe on the right. In November 2000, Dr. Jones performed a carpal tunnel release on the right side. As this condition was not related to her employment, her private insurer paid for this operation. She was also diagnosed as having tennis elbow; because it was initially under the impression that this condition was work-related, Horseshoe paid for tennis elbow release surgery in December 2000.

In January 2001, Dr. Jones released the claimant to return to light duty work using only her left arm. He continued to restrict her to light duty for the next few months.

In April 2001, Dr. Jones suggested that the claimant undergo a functional capacity evaluation (FCE) due to her claims that she was not better post-surgery. According to Paul Procell who performed the FCE, the claimant provided less than maximum voluntary effort during it and gave inappropriate pain behavior. Her subjective complaints were inconsistent and excessive when compared to the physical findings. She demonstrated no objective limitations within the right upper extremity. Consequently, he was unable to make an accurate determination because she did not demonstrate her true work capabilities; he recommended that she return to regular duties without restrictions. After receiving Procell’s report on the FCE, Dr. Jones became suspicious that she was exaggerating her ^complaints. Based on the FCE, Dr. Jones likewise recommended that she be released back to full work without restrictions. He suggested a second opinion if she felt she could not work due to pain.

Thereafter, later in 2001, Dr. Jones referred the claimant to Dr. Ross Nelson, who specialized in pain management, because he was concerned that she might have reflex sympathetic dystrophy. However, Dr. Nelson concluded that she had only minimal evidence of that. Apparently the claimant remained on light work duty during this time period.

In the meantime, in February 2001, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC). In its answer, Horseshoe admitted that it had not paid worker’s compensation benefits to the claimant; however, it asserted that it had paid all submitted claims for medical expenses. The claimant filed amended claims with the OWC in September 2001 and March 2002. She claimed that the light duty work assigned to her aggravated her injury.

In connection with this worker’s compensation claim, Dr. Lewis was deposed twice, in January 2002 and May 2002. In his first deposition, he opined that there was no connection between the carpal tunnel or the tennis elbow and the claimant’s employment. In February 2002, relying upon Dr. Lewis’ opinion, the casino asked the claimant to return to regular duty; she refused. Dr. Nelson gave her an excuse from work pending further testing. At his suggestion, a second FCE was performed in March 2002; the results were the same as the prior one. Horseshoe refused to continue her on light duty.

|/The matter was tried on May 31, 2002. By this time, the claimant’s second attorney had withdrawn, and she proceeded in proper person. She presented the testimony of several casino employees. Candace Preston, a slot supervisor on the swing shift, did not recall the claimant being injured. Reginald Partner, a slot shift manager on the swing shift, testified that the claimant was an average employee. He recalled the claimant telling him that her arm hurt. The claimant’s daughter, Raquel Denise Armstrong, was a dual rate supervisor in table games. She testified that her mother was a better than average employee. While conceding her mother suffered from fibromyalgia, she did not recall her mother complaining of swelling in her right arm in December 1999. Charles D. Peters, the casino risk manager, testified that he did not recall several specific conversations with or about the claimant. However, he generally outlined casino procedure for handling injuries. Wayne Edwards, the director of slot operations, also discussed general casino procedure. The claimant testified; she was extensively cross-examined. She contended that Dr. Jones did not accurately record her medical history.

The WCJ found that the claimant proved by a preponderance of the evidence that she sustained a work-related accident on January 29, 2000, which resulted in an acute contusion to the right shoulder and strain. However, the WCJ found that the claimant failed to prove that the accident resulted in a disabling condition and inability to work and earn her pre-injury wages or at least 90% of her pre-injury wages. The WCJ also found that she had failed to prove that her bilateral carpal tunnel syndrome and [fitennis elbow injuries were causally related to her employment with Horseshoe. Consequently, her claim for workers’ compensation benefits was denied and "dismissed with prejudice at her cost. Judgment was signed July 17, 2002.

On July 24, 2002, the claimant filed a motion for new trial. She asserted that the WCJ refused to allow her to present evidence pertaining to the result of an MRI she underwent on May 24, 2002, the results of which were received on May 28, 2002. It allegedly showed deterioration of her rotator cuff. The motion was denied.

The claimant appeals in proper person.

ENTITLEMENT TO BENEFITS

Law

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La. R.S. 23:1031. In a worker’s compensation proceeding, the claimant bears the burden of demonstrating by a preponderance of the evidence that an employment accident resulted in disability. Clay v. Delphi Interior & Lighting Systems, 34,242 (La.App.2d Cir.12/22/00), 775 So.2d 1207.

The findings of the WCJ are subject to the manifest error rule. Chaisson v. Cajun Bag & Supply Co., 1997-1225 (La.3/4/98), 708 So.2d 375. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Stobart v. State Through Department of Transportation and Development, 617 So.2d 880 (La.1993).

Whether the claimant has carried her burden of proof and whether her testimony is credible are questions of fact to be determined by the WCJ. Where there are two permissible views of evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Poland v. Kroger, No. 404, 32,576 (La.App.2d Cir.12/8/99), 747 So.2d 711, writ denied, 2000-0583 (La.4/7/00), 759 So.2d 764. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, supra.

Discussion

Although the brief of the pro se claimant is less than clear, our review indicates that she is generally complaining of the WCJ’s denial of benefits. Horseshoe argues that the WCJ made a credibility call that the claimant’s testimony was not credible, particularly emphasizing the findings that she was not truthful in the FCE’s performed on her. The employer further asserts that no doctor testified that the claimant was disabled and that if she is disabled in any fashion, the disability is not connected to her employment.

A review of the evidence shows that the WCJ was not manifestly erroneous in finding that the claimant failed to connect her medical problems to her employment. There was no testimony that her bilateral carpal tunnel syndrome was caused by her employment or her fall. Although Horseshoe was originally under the impression that the claimant’s Ltennis elbow was related to her January 2000 fall; the testimony of Dr. Jones, the claimant’s physician, was to the contrary. After being presented with the claimant’s medical history, he testified that her right elbow pain was probably not related to her fall. According to Dr. Jones, it is extremely uncommon for tennis elbow to be associated with a traumatic event. The December 1999 incident wherein she sought treatment for discomfort and swelling in her right arm indicated to him that she might have already had tennis elbow symptoms prior to the fall. While Dr. Jones did not believe she was an “overt malingerer,” the results of the two FCE’s made him suspicious of the validity of her pain complaints. He testified that he had no further treatment to offer her.

On the issue of the claimant’s credibility, it is apparent that the WCJ made some determinations adverse to the claimant. She testified that, contrary to the notations in Dr. Jones’ records and his testimony, she told him about her previous problems with her right upper extremity and her history of fibrositis. She asserted at trial that Dr. Jones must have confused her medical history with that of another patient.

We find no manifest error in the ruling of the WCJ that the claimant failed to show a causal link between her fall at work and her subsequent complaints of pain.

MOTION FOR NEW TRIAL

The claimant argues that the WCJ erred in not granting her motion for new trial. Horseshoe contends that the MRI evidence asserted in the motion for new trial was available before trial and that it was not important to the |scase at hand because there was no indication that the rotator cuff injury was work-related.

A motion for new trial should be granted when the disputed judgment is clearly contrary to the law and evidence and, in any case, if there are good grounds therefor or when a party has discovered evidence important to his case which he could not have obtained during the proceedings with due diligence. La. C.C.P. arts. 1972 and 1973; Raburn v. Williams, 34,718 (La.App.2d Cir.5/9/01), 786 So.2d 955. The granting or denying of a motion for new trial rests within the wide discretion of the trial court, and its determination should not be disturbed absent a clear abuse of discretion. Burke v. Baton Rouge Metro Airport, 1997-0947 (La.App. 1st Cir.5/15/98), 712 So.2d 1028; Raburn v. Williams, supra.

The WCJ has great discretion in denying a motion for new trial. The newly discovered evidence asserted by the claimant concerns an MRI performed on May 24, 2002, the results of which were available on May 28, 2002. Trial on the merits was held on May 31, 2002. Given the availability of the information before trial, we find no abuse in the WCJ’s wide discretion in denying the motion for new trial.

CONCLUSION

The judgment of the WCJ denying benefits to the claimant is affirmed. Costs of this appeal are assessed against the claimant, Betty Armstrong.

AFFIRMED.

      . Initially she was given light duty in the security department. She was later sent back to the slots department; light duty in that department consisted of greeting customers or filing machine data cards.