author: PETTIGREW, J.

text:
    Channon Guidroz MAJOR v. Jason Scott MAJOR.
    No. 2002 CU 2131.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Maureen E. Coughlin, Baton Rouge, for Plaintiff-Appellant Channon Guidroz Major.
    Haley D. Major, Port Allen, for Defen-dani>-Appellee Jason Scott Major.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

This is an action by a father in opposition to the planned relocation of his eleven-year-old daughter. The mother now appeals from an order of the trial court precluding the daughter from relocating with her mother outside an area of family support.

FACTS

The parties in this matter, Channon Gui-droz Major (Ms. Major) and Jason Scott Major (Mr. Major), were married to each other on November 24, 1989, in Pointe Coupee Parish, Louisiana. Of this marriage, one child, Karlie Lynn Major, was born, on April 22, 1991. The parties were subsequently divorced on August 26, 1994, and the parties were awarded joint custody with Ms. Major being designated as the primary domiciliary parent of the child, subject to alternating weekend and holiday visitation in favor of Mr. Major.

Based upon the pleadings contained within the record, Ms. Major had been employed since December 1991 as a secretary for Ames Pest Control. Following the rendition of her divorce decree, Ms. Major became romantically involved with the owner of Ames Pest Control. After approximately five years, Ms. Major and the owner broke off their engagement, and the owner decided that it would be an uncomfortable situation for Ms. Major to continue working at Ames Pest Control. Ms. Major testified that before she left Ames Pest Control she had been making fifteen hundred dollars per month, but received no insurance benefits. At that point, Ms. Major and Karlie moved in with Ms. Major’s parents.

Ms. Major then began dating a man who lived near Nederland, Texas. Through trips to visit her boyfriend, Ms. Major testified that she made many friends in the area. A girlfriend mentioned that the doctor’s office she worked for was looking to hire a medical billing operator, and Ms. Major was subsequently offered the job. Ms. Major also testified that when she mentioned to Mr. Major that she had been offered a job in Texas and inquired as to his feelings regarding a move, “the next thing [she knew she] was served [with] papers.”

FACTION OF THE TRIAL COURT

On October 9, 2001, Mr. Major filed a “Notice of Objection to Relocation and Request for a Temporary Order to Prevent Relocation” opposing his daughter’s proposed relocation to Texas, and urged application of the relocation statutes. In the alternative, Mr. Major sought a modification of custody whereby he would be designated as the primary domiciliary parent. A temporary restraining order was signed prohibiting the move, and this matter was initially assigned for hearing on November 15, 2001.

Ms. Major responded by filing an Answer and Reconventional Demand wherein she denied that she had definite plans to move to Texas. Through a reconventional demand, Ms. Major sought dissolution of the temporary restraining order along with permission from the court to move with her daughter either 185 miles away to Nederville, Texas, or 130 miles away to Lake Charles, Louisiana. Ms. Major further sought a redetermination of child support based upon a change in circumstances.

In a hearing held on November 15, 2001, the parties reached several stipulations that were made a part of the judgment. Ms. Major was permitted by the court to move with her child to Lafayette, Louisiana, provided she obtained a job, housing, and supplied information regarding the child’s proposed school to the court. Additionally, Mr. Major’s child support obligation was increased from $200.00 per month plus one-half of private school expenses to $423.00 per month. These stipulations were also incorporated into and made a part of the stipulated judgment signed by the court on January 31, 2002.

A status conference was held in chambers on March 14, 2002. Through her counsel, Ms. Major averred that she had been unsuccessful in securing a job in Lafayette, Louisiana, and sought to relocate instead to Lake Charles, Louisiana. Mr. Major again opposed this move, and urged application of the relocation statutes, or in the alternative, modification of the existing child support plan and designation of himself as the primary domiciliary parent.

Another hearing was held in this matter on April 11, 2002. Both parties stipulated that Lake Charles, Louisiana, was within a 150-mile radius of New Roads, Louisiana. After hearing the evidence presented, and speaking briefly with the minor child, the trial judge Lruled that Ms. Major could not relocate with her minor child outside of an undefined “area of family support.” The trial judge further stated that if Ms. Major attempted to relocate outside of this area, the trial judge would designate Mr. Major as the primary domiciliary parent of the child. It is from this ruling that Ms. Major now appeals.

ASSIGNMENT OF ERRORS

In connection with her appeal in this matter, Ms. Major asserts that the trial judge erred in the following respects:

1. Requiring [Ms. Major] to meet the burden of proving that it would be in the best interest of the child to relocate to Lake Charles;
2. In failing to consider the best interest factors under La. C.C. Art. 134;
3. In ruling in [Mr. Major’s] favor, indicating that Mr. Major met his burden of proof that the proposed move to Lake Charles was a material change of circumstances which would negatively impact the welfare of the child and that transferring domiciliary parent status to him would be in the child’s best interest;
4. In failing to consider the stated preference of the child to remain with her mother and move to Lake Charles; and
5. Conditioning the continuing designation of Ms. Major as the domiciliary parent on her remaining near the city of New Roads.

STANDARD OF REVIEW

It is a well recognized tenet of Louisiana jurisprudence that an award of child custody is not a tool to regulate human behavior. Cleeton v. Cleeton, 383 So.2d 1231, 1236 (La.1979)(on rehearing). Every child custody case must be viewed within its own peculiar set of facts. Connelly v. Connelly, 94-0627, p. 4 (La.App. 1 Cir. 10/7/94), 644 So.2d 789, 793. The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court’s determination of custody is entitled to great weight and will not be reversed on .appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101, 101 (La. 1988)(per curiam); Bercegeay v. Bercegeay, 96-0616, p. 5 (La.App. 1 Cir. 2/14/97), 689 So.2d 674, 676.

In the instant case, as in most custody cases, the trial court’s determination was based heavily on factual findings. As an appellate court, we cannot set aside the trial | ^court’s factual findings unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel its own evaluations and inferences are as reasonable. Id.

DISCUSSION

In her initial assignment of error, Ms. Major asserts that the trial court erred in requiring her to establish and prove that it would be in the best interest of her daughter to relocate to Lake Charles.

Louisiana Revised Statute 9:355.1 provides in pertinent part:

§ 355.1. Definitions
As used in this Subpart:
(4) “Relocation” means:
(a) Intent to establish legal residence with the child at any location outside of the state.
(b) If there is no court order awarding custody, an intent to establish legal residence with the child at any location within the state that is at a distance of more than one hundred fifty miles from the other parent. If there is a court order awarding custody, then an intent to establish legal residence with the child at a distance of more than one hundred fifty miles from the domicile of the primary custodian at the time the custody decree was rendered.
(c) A change in the principal residence of a child for a period of sixty days or more, but does not include a temporary absence from the principal residence.

I (Additionally, Louisiana Revised Statute 9:355.13 provides:

§ 355.13. Burden of proof

The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child.

The parties hereto have stipulated that Lake Charles, Louisiana, is situated within one hundred fifty miles of New Roads, Louisiana. In the opinion of this court, the relocation statutes (La. R.S. 9:355.1 et seq.) do not apply unless Ms. Major proposes to establish legal residence with her daughter at a distance of greater than one hundred fifty miles from New Roads, Louisiana, her domicile at the time the custody decree was rendered.

It was legal error for the trial court to require Ms. Major to establish and prove that a proposed move within one hundred fifty miles from New Roads, Louisiana, was made in good faith and was in the best interest of the child. When a court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d at 844 n. 2.

Ms. Major and Mr. Major were granted a divorce pursuant to a judgment rendered August 26, 1994. The divorce judgment awarded ■ custody of the minor child, Karlie Lynn Major, jointly to Ms. Major and Mr. Major .with Ms. Major being designated as the .primary domiciliary parent. Said judgment also awarded Mr. Major visitation every other weekend with the parties alternating visitation on major holidays.

Pursuant to a subsequent stipulated judgment rendered November 15, 2001, read and signed January 31, 2002, Ms. Major was permitted to move to Lafayette, Louisiana, under certain conditions. The parties agreed to maintain joint custody with Ms. Major continuing to serve as the primary domiciliary parent. Said judgment also provided for an increase in child support and maintained Mr. Major’s visitation rights on alternating weekends and major holidays.

Louisiana Civil Code article 131 provides that in a proceeding for divorce or thereafter, the court shall award custody in accordance with the best interest of the child. |7 However, once a considered decree of permanent custody has been rendered by a court, the proponent of the change bears a heavy burden of proving that a change of circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193, 1196 (La.1986). Hensgens v. Hensgens, 94-1200, p. 5 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, 52; writ denied, 95-1488 (La.9/22/95), 660 So.2d 478. A “considered decree” is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Barnes v. Cason, 25,808, p.6 (La.App. 2 Cir. 5/4/94), 637 So.2d 607, 611, writ denied, 94-1325 (La.9/2/94), 643 So.2d 149. An uncontested decree in which no evidence is presented as to the fitness of the parents is not a considered decree. Peyton v. Peyton, 614 So.2d 185, 186 (La.App. 3 Cir.1993).

In cases such as the instant matter, where the underlying custody decree is a stipulated judgment, and the parties have consented to a custodial arrangement with no evidence as to parental fitness, the heavy burden of proof rule enunciated in Bergeron is inapplicable. Hensgens, 94-1200 at 6, 653 So.2d at 52. Pre-1977 jurisprudence held that a plaintiff seeking a significant modification of a child custody decree was required to show that “a change in circumstances materially affecting the welfare of the child” had occurred since the prior decree. Mosely v. Mosely, 499 So.2d 106, 108 (La.App. 1 Cir.1986), writ denied, 505 So.2d 1138 (La.1987). The supreme court’s opinion in Bergeron indicated that the changed circumstances rule was distinct from the heavy burden of proof required for a modification of custody, and further, that said rule had survived intact the 1977 amendment to La. Civ. Code art. 157. Mosely, 499 So.2d at 108. Thus, parties seeking a modification of a consent decree must nonetheless prove that there has been a material change of circumstances since the original custody decree was entered and that the proposed modification is in the best interest of the child. Hensgens, 94-1200 at 6, 653 So.2d at 52.

| sIn the instant case, the underlying custody decree is a stipulated judgment whereby the parties have consented to a joint custody arrangement with Ms. Major as the primary domiciliary parent. The record contains no evidence regarding parental fitness, thus the heavy burden of proof rule enunciated in Bergeron is inapplicable. In order to modify the present custody arrangement, it was Mr. Major’s burden of proof to establish that a change in circumstances materially affecting the welfare of the child had occurred since the rendition of the stipulated judgment on November 15, 2001, and further that the modification proposed by him is in the best interest of the child.

This court long ago held that where children have been with the domiciliary parent their entire fives, an interstate move with the children by the domiciliary parent does not alone establish by the appropriate standard that the move was detrimental to the welfare of the children or a change in circumstances sufficient to justify a modification of custody. Smith v. Smith, 615 So.2d 926, 935 (La.App. 1 Cir.), writ denied, 617 So.2d 916 (La.1993). We also note that it has been held that an intrastate move is not per se a material change of circumstances such that a court may presume that it will materially affect the children’s welfare without further evidence. Hensgens, 94-1200 at 9, 653 So.2d at 53 (citing as authority, Smith, 615 So.2d 926 (La.App. 1 Cir.), writ denied, 617 So.2d 916 (La.1993)). In the present case, the parties agree that Lake Charles is an intrastate move within the 150-mile radius established by La. R.S. 9:355.3. Without further evidence, we cannot say that the projected move by Ms. Major is in itself a material change of circumstances that will materially affect the child’s welfare.

Upon review of the evidence introduced in this proceeding, only five people testified: Ms. Major; Mr. Major; the paternal grandfather, Doug Major; the paternal grandmother, Charlotte Major; and the maternal grandmother, Rita Guidry. Both Mr. and Ms. Major testified that the other party was a good parent, although it was obvious from the testimony that Ms. Major has been the dominant caretaker of the minor child. This was the case not only throughout their marriage, but during the divorce proceeding and thereafter. Ms. Major has always tended to the daily needs of the minor child. |3 Conversely, the interaction of Mr. Major and his parents with his minor child has been basically limited to those weekends when Mr. Major has visitation.

The testimony of Ms. Major convinces us that said visitation will not change if Ms. Major is permitted to move with the minor child to Lake Charles. Moreover, the record is replete with testimony that Ms. Major has always allowed and encouraged visitation by Mr. Major and his family, and has never done anything to interfere with said visitation. While a move by Ms. Major to Lake Charles may mean that Mr. Major and his parents may not be able to see the minor child during the week, the record reflects that in the eight years since the parties’ divorce, Mr. Major and his parents have seen the child very rarely during the week. Under the unique facts of this case, the inability of Mr. Major and his parents to see the child during the week does not constitute a material change.

In determining the best interest of the child, the trial court should have considered the twelve non-exclusive factors set forth under La. Civ.Code art. 134. After reviewing those factors, and taking into account the oral testimony presented at the hearing in this matter, it is the opinion of this court that only two of the twelve factors (namely, the fifth and eighth) favor Mr. Major, while the remaining factors either favor Ms. Major or equally favor both parties. The fifth factor set forth under Art. 134 concerns the permanency of the existing or proposed family home, while the eighth factor discusses the home, school, and community history of the child.

It is the opinion of this court that Mr. Major failed to meet his required burden of showing that a change of circumstances materially affecting the welfare of his minor child had taken place since the last stipulated judgment, and that the modification proposed by him was in the best interest of the child.

CONCLUSION

For the reasons set forth more fully above, the judgment of the trial court that precluded Ms. Major from moving with her daughter to an area within one hundred and fifty miles of her domicile at the time the custody decree was rendered is hereby |inr ever sed. All costs associated with this appeal shall be borne by plaintiff-appellee, Jason Scott Major.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: CARTER, C. J.

license: Public Domain

text:
    Marlin R. PRESTWOOD v. CITY OF SLIDELL.
    No. 2002 CA 1786.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Michael B. Forbes, Hammond, for Plaintiff-Appellant, Marlin R. Prestwood.
    Thomas M. Ruli, Metairie, for Defen-dantr-Appellee, City of Slidell.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CARTER, C. J.

Plaintiff, Marlin R. Prestwood, appeals the dismissal of his claim for workers’ compensation benefits. We affirm.

BACKGROUND

At the time of his alleged injury, plaintiff was a 67-year-old equipment operator for the City of Slidell (employer). He alleges that he suffered an injury to his left hip and leg on Friday, July 27, 2001, while operating a backhoe machine for his employer. Plaintiff claims that he was having difficulty turning the seat on the backhoe machine. As he pulled on the seat to loosen it, the seat suddenly swung around and threw his left side into the dashboard of the backhoe. Plaintiff alleges that he felt an immediate “little” pain in his left hip and a sharp pain in his left leg, but the pain lasted only a few minutes. Plaintiff went home without reporting the unwitnessed incident to his employer, coworkers, or anyone else because he felt that the injury was a minor muscle pull. He had absolutely no pain the rest of that day or the next day, Saturday, July 28. However, on Sunday, July 29, plaintiff experienced a recurrence of left hip and leg pain while walking at a flea market with his wife. The pain was so severe that he returned home to soak in a hot bath, after which the pain resolved.

On Monday morning, July 30, plaintiff was pain-free when he returned to work. While working on a pothole job that afternoon, plaintiff claims he developed severe left hip and leg pain after using a shovel to remove asphalt from the back of a dump truck. Before leaving work that day, plaintiff did not tell his employer or anyone about any work-related accident, although he did tell a co-worker at the pothole job that his left leg was hurting. Plaintiffs pain was allegedly so severe that he could not sleep Monday night. The pain continued into Tuesday morning, July 31, when plaintiff called his employer to simply say that he would not be at work that day because his leg hurt. Plaintiff still did not inform his employer about the backhoe incident, the dump truck incident, or that he had sustained a work-related injury. He saw his family physician, Dr. Christopher Bryan Miller, that same day. Plaintiff admits that he did not inform Dr. Miller |sthat his injury was work-related, but he alleges that he did tell Dr. Miller that he had been operating a backhoe machine at work. Dr. Miller x-rayed plaintiffs back and gave him a prescription for pain medication.

On August 1, plaintiff filed an accident report with his employer describing the initial backhoe incident. That same day, the employer sent plaintiff to a physician, Dr. Mohameed Naeem, to whom plaintiff described the backhoe incident. On August 6, Dr. Naeem told plaintiff he could return to work with activity restrictions and referred him to an orthopedist, Dr. Brian L. Fong. On August 20, plaintiff detailed the backhoe incident and his pain for Dr. Fong, who diagnosed degenerative changes in plaintiffs cervical spine, ordered an MRI, prescribed pain medication, and told plaintiff he could return to light-duty work. Plaintiff contends that he never returned to work for his employer because he was in too much pain and his employer allegedly had no light-duty work for him. Plaintiff was eventually terminated.

Plaintiff filed a disputed claim for compensation on September 11, 2001, alleging that he had reported a work-related accident and injury from the backhoe incident, that no wage benefits had been paid, and that medical treatment had not been authorized. After a trial on April 18, 2002, the workers’ compensation judge (WCJ) rendered judgment in favor of the employer, dismissing plaintiffs claim for benefits. The WCJ found that plaintiff failed to prove by a preponderance of the evidence that a work-related accident had occurred. Plaintiff appeals, raising two assignments of error: (1) the WCJ abused its discretion in refusing to allow the testimony of plaintiffs co-workers, and (2) the WCJ erred in finding that plaintiff had failed to meet his burden of proof.

LAW AND ANALYSIS

In plaintiffs first assignment of error, he contends the WCJ abused its discretion in disallowing the testimony of coworkers who were not disclosed on his pretrial statement. Plaintiffs pretrial statement specifically named two fact witnesses, Eddie Gines and George Williams, and generally named “[a]ny and all coworker(s) and/or supervisor(s) of the claimant.” On the day of trial, the employer moved to disallow the testimony of several witnesses that were not specifically Usted on the pretrial statement, but were present to testify on Lplaintiffs behalf. The WCJ ruled that since the witnesses were not named on the pretrial statement, they would not be aUowed to testify, citing Hearing Rule 6003. See La. Admin. Code, Title 40, Part I, Section 6003.

We do not find that the WCJ abused its discretion in disposing of this procedural issue. The jurisprudence provides that an orderly disposition of each case and the avoidance of surprise and delay are inherent in the theory of pretrial procedure, and are sufficient reasons for allowing the trial court to require adherence to the pretrial order. See Highlands Underwriters Insurance Company v. Foley, 96-1018, p. 5 (La.App. 1 Cir. 3/27/97), 691 So.2d 1336, 1339. The trial court has discretion in conducting a trial, including the admissibility of a witness’s testimony, whether that witness is brought in rebuttal or one that was not listed on the pretrial order. See LSA-C.C.P. arts. 1651 and 1632; see also Tracy v. Jefferson Parish Through Dept of Public Works, 523 So.2d 266, 274 (La.App. 5 Cir.), writ denied, 530 So.2d 569 (La.1988). The Hearing Rules for workers’ compensation cases require each party to list the witnesses he intends to call at trial. Plaintiff had ample time to amend his pretrial statement to specifically name his co-workers as potential witnesses before the day of his trial. Under the circumstances presented in this case, we find no abuse of discretion in the WCJ’s refusal to allow plaintiffs unnamed witnesses to testify at trial. Plaintiffs first assignment of error is without merit.

In plaintiffs second assignment of error, he contends that the WCJ manifestly erred in finding that he had failed to prove by a preponderance of the evidence that a work-related accident had occurred. To recover workers’ 1,^compensation benefits, an employee must prove that he sustained an accidental personal injury arising out of and in the course and scope of his employment, and that the injury necessitated medical treatment or rendered the employee disabled, or both. See LSA-R.S. 23:1021; Haws v. Professional Sewer Rehabilitation, Inc., 98-2846, p. 5 (La.App. 1 Cir. 2/18/00), 763 So.2d 683, 688. An employee’s testimony alone may establish a work-related accident if (1) no other evidence casts serious doubt on his version of the incident and (2) his testimony is corroborated by the circumstances following the alleged incident. Corroboration may be provided by co-workers, spouses, friends, or medical evidence. Franklin v. Georgia-Pacific Port Hudson Div., 2001-1854, p. 3 (La.App. 1 Cir. 9/27/02), 835 So.2d 592, 593-594.

In determining whether an employee has shown by a preponderance of the evidence that an injury-causing accident occurred, the WCJ is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, an employee’s testimony is accorded great weight. Id. The WCJ’s determinations regarding the employee’s credibility and whether the employee has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong. Id.; Haws, 763 So.2d at 688.

In applying the manifest error standard of review, an appellate court must determine not whether the WCJ was right or wrong, but whether the WCJ’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). Thus, if the WCJ’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556.

In the instant case, the two-fold standard for accepting plaintiffs testimony alone to establish that a work-related accident occurred has not been satisfied. The record reveals that on three occasions during the two-and-a-half years that | ^plaintiff worked for the employer, he immediately reported work-related accidents and minor injuries and received immediate medical treatment. However, after the alleged backhoe incident, plaintiff did not immediately report any accident or injury to his employer, nor did he seek immediate medical treatment. The fact that plaintiff did not notify his employer that he suffered an accident until several days after the date of the alleged injury does not necessarily prohibit a finding that an accident occurred, but it does cast doubt on plaintiffs credibility because of his past history of immediately reporting work-related accidents and injuries. See Stein Mart v. Prejean, 2001-718, p. 4 (La.App. 3 Cir. 10/31/01), 798 So.2d 1230, 1233; see also Haws, 763 So.2d at 688.

The record further reveals that the testimony of plaintiffs two co-workers and the medical evidence cast serious doubt on plaintiffs version of the alleged accident. Edward A. Gines testified on plaintiffs behalf, but he did not actually witness the backhoe incident. He testified that he had personally experienced problems with turning the seat on the backhoe machine, and he assisted the plaintiff in turning the seat on Friday, July 27. Mr. Gines did not witness plaintiff being swung around or thrown into the dashboard of the backhoe, and plaintiff did not tell Mr. Gines that he was injured. Interestingly, Mr. Gines testified that he could tell plaintiff was in pain when he left work that day. That testimony directly contradicted plaintiffs testimony that his pain lasted only for a few minutes after the backhoe incident.

Plaintiffs other co-worker, George Williams, testified that he worked with plaintiff on the Monday, July 30 pothole job. However, Mr. Williams testified that he had no knowledge of any accident or injury to plaintiff. He stated that plaintiff told him that his leg was hurt, and he witnessed plaintiff sitting in the dump truck toward the end of their work shift. Mr. Williams’s testimony also contradicted plaintiffs testimony when he stated that plaintiff drove the dump truck for the |7pothole job and he did not remember the plaintiff shoveling asphalt that day. Mr. Williams had no knowledge of the alleged backhoe incident.

The medical evidence casts further doubt on plaintiffs credibility because plaintiff did not inform his family physician that he was injured in a work-related accident. In Dr. Miller’s deposition, he testified that plaintiff usually gave specific details when he sought medical treatment, but on this visit plaintiff did not reveal any cause of his injury. Furthermore, Dr. Miller stated that if plaintiff had told him that the injury was work-related, he would have made a note of it as well as filled out a workers’ compensation form, because he codes and bills work-related treatments differently from other treatments. Dr. Miller’s medical records specifically reveal “no trauma” connected with plaintiff’s complaints of pain.

After reviewing all of the testimony and evidence, we conclude that the WCJ could have reasonably found that plaintiff was not entitled to benefits for a compensable accident. The other witnesses’ testimony cast serious doubt on plaintiffs version of the incident and suspicion on the reliability of his testimony. Therefore, we find no manifest error in the WCJ’s conclusion that plaintiff faded to sufficiently prove by a preponderance of the evidence that a work-related accident occurred. The evidence presented reasonably supports that conclusion. Plaintiffs second assignment of error is without merit.

CONCLUSION

Conflicting and uncorroborated evidence was presented in this case on the issue of whether a work-related accident occurred. The WCJ resolved this conflict in favor of the employer, The City of Slidell. Our review of the record convinces us that the WCJ was not clearly wrong in concluding that there was insufficient evidence of a work-related accident. Thus, we affirm the judgment of the WCJ. Plaintiff, Marlin R. Prestwood, is to pay all costs of this appeal.

AFFIRMED.

      . Louisiana Administrative Code, Title 40, Part I, Section 6003(B)(5), promulgated in accordance with LSA-R.S. 23:1310.1, provides in pertinent part:
      B. Each pretrial statement ... shall set forth:

      5. a list of witnesses each party may call and a short statement as to the nature but not to the content of their testimony, and whether their testimony will be offered live or by deposition. Except for the witnesses listed, no other witnesses may be called to testify except for good cause shown. This requirement shall not apply to impeachment and rebuttal witnesses!!.]
      (Emphasis added.)

      . Plaintiff's pretrial statement was filed on December 3, 2001, and the trial date was April 18, 2002.

      . On August 23, 1999, plaintiff immediately reported and was medically treated for heat exhaustion suffered on the job. On September 15, 1999, plaintiff twisted his ankle getting off the back of a truck; he immediately reported the injury and received medical treatment that day. On February 2, 2001, plaintiff sustained a pulled abdomen muscle while lifting a drain cover; he immediately reported the injury and received medical treatment.


author: CLAIBORNE, J.

text:
    Jodi Addison ZUBER v. Ed W. BUIE, Individually and d/b/a Information Search, Inc.
    No. 2002 CA 1718.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Lila Tritico Hogan, Hammond, Counsel for Plaintiff-Appellant.
    A. Bradley Berner, Ponchatoula, Counsel for Defendant-Appellee.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   CLAIBORNE, J.

This appeal raises the issue of volunteer, for-hire witness immunity from a defamation claim for testimony given against the adverse party in a prior court proceeding. For the following reasons, we affirm.

FACTS

Christopher Pisciotta hired Ed W. Buie, a private investigator, in anticipation of a custody hearing concerning Pisciotta’s child. Buie was to follow plaintiff, Jodi Addison Zuber, the child’s mother, and prepare a report. At the custody hearing, Buie did not testify, but his report was admitted into evidence. Zuber prevailed on the custody issue. Zuber then brought this suit against Buie for defamation, asserting his report contained numerous inaccuracies and innuendos that were damaging.

At the close of plaintiffs case, Buie moved for an involuntary dismissal after the trial court raised the applicability of Marrogi v. Howard, 2001-1106 (La.1/15/02), 805 So.2d 1118. The trial court requested memoranda from the parties addressing the applicability of Marro-gi and the issue of malice. After considering the parties’ memoranda, the trial court found that Buie’s “testimony as presented in the prior [custody] trial through the submission of his report is entitled to an absolute privilege,” and granted Buie’s motion for involuntary dismissal. Zuber appeals.

LAW AND DISCUSSION

Defamation is a tort that involves the invasion of a person’s interest in his or her reputation and good name. An action in defamation requires proof of: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559. Privilege is a defense to a defamation action. Aranyosi v. Delchamps, Inc., 98-1325, p. 6 (La.App. 1st Cir.6/25/99), 739 So.2d 911, 915, writ denied, 99-2199 (La.11/5/99), 750 So.2d 187.

Privileged communications are divided into two general classes: (1) absolute or unqualified; and (2) conditional or qualified. Aranyosi, 739 So.2d at 915. An absolute privilege protects a speaker without reference to his notion of the truth or falsity of the statement. Black’s Law Dictionary 1215 (7th ed.1999). Louisiana law grants an absolute privilege to non-litigant witnesses in a judicial proceeding when their testimony is pertinent and material to the proceeding. Marrogi, 805 So.2d at 1124. A conditional privilege is applicable if the communication is made: (1) in good faith; (2) on any subject matter in which the person communicating has an interest or in reference to which he has a duty; and (3) to a person having a corresponding interest or duty. Aranyosi, 739 So.2d at 915-16.

While the recent case of Marrogi fully sets forth the law with respect to witness immunity, the issue before the Marrogi court was whether witness immunity bars a claim against a retained expert witness, by a party who in prior litigation retained that expert, which claim arises from the expert’s allegedly deficient performance of his duties to provide litigation services. Marrogi, 805 So.2d at 1120. In Marrogi, the physician/plaintiff sued the medical billing analyst/defendant, alleging the analyst breached his contract with the physician to provide medical billing analysis and expert testimony in connection with the physician’s prior litigation seeking to recover fees against the physician’s employer. The analyst had prepared a report and was eventually deposed concerning his review of the employer’s records. During the deposition, the analyst was forced to admit to errors in his report. The analyst then refused to continue the deposition or to provide |4any of the other litigation support that he had contracted to furnish the physician. The physician’s original suit against his employer was eventually dismissed, and the physician then sued the analyst, alleging negligence and breach of contract, or in the alternative, unjust enrichment. Marrogi, 805 So.2d at 1120-21.

In Marrogi, the Louisiana Supreme Court completely reviewed the origin and development of witness immunity, stating, “our courts have long recognized the general rule that there is absolute immunity from civil liability for testimony given by a non-party witness in a judicial proceeding, so long as that testimony is pertinent and material to the issue.” Marrogi, 805 So.2d at 1126. This immunity was found to be based on the protected interest of the administration of justice and its objective to uncover the truth. However, after considering whether witness immunity bars a claim against a retained expert witness asserted by the party who hired that expert, the Marrogi court held that “no overarching public purpose is served by applying witness immunity to shield a retained expert witness from a claim subsequently asserted by the party who hired him when the claim alleges deficient performance of his professional and contractual duties to provide litigation support services.” Mar-rogi, 805 So.2d at 1129.

We note that in the instant case Buie was not qualified as an expert by the court in the prior litigation, but was a for-hire, volunteer witness. The instant suit is not by a former client for negligent performance of a contract obligation but is a defamation claim based on statements made in a prior litigation by an adverse witness. Thus, we find Marrogi, while not factually controlling, is instructive to the issue presented in this appeal.

The policy basis for the granting of absolute immunity to non-litigant witnesses is so that all witnesses may speak freely without the fear of a | ^reprisal suit for slander. Moity v. Busch, 368 So.2d 1134, 1136 (La.App. 3d Cir.1979). “The administration of justice requires the testimony of witnesses to be unrestrained by liability to vexatious litigation. The words they utter are protected by the occasion .... ” Oakes v. Walther, 179 La. 365, 371, 154 So. 26, 28 (1934), quoting Terry v. Fellows, 21 La.Ann. 375, 376 (1869). Immunity is granted so that witnesses, bound by their oath to tell the truth, may speak freely without fear of a civil suit for defamation. Hairford v. Long, 430 So.2d 393, 394 (La.App. 3d Cir.1983). Fear of a civil suit for damages may lead to two forms of self-censorship. First, the witness might be reluctant to come forward to testify, and once on the stand, his testimony might be distorted by the fear of subsequent liability. Marrogi, 805 So.2d at 1124 n. 9.

In Marrogi, this policy was not found to be controlling in a suit by a litigant against his own hired expert. Not allowing an expert witness to hide from civil liability to his client for negligently performing professional services helps rid the system of incompetent experts and ensures that reliable opinion testimony is presented to the fact-finder. Marrogi, 805 So.2d at 1132. “With no sanction for incompetent preparation ... an expert witness [would be] free to prepare and testify without regard to the accuracy of his data or opinion. We do not see how the freedom to testify negligently will result in more truthful expert testimony.” Marrogi, 805 So.2d at 1133. However, it is clear that the right of action on contract belongs to the litigant who hired the expert, not to third parties.

In the instant case, we make no distinction between Buie’s report that was admitted into evidence and his live testimony. Buie’s report certainly meets the definition of a “[communication] made in [a] judicial or quasijudicial proceeding .... ” Knapper v. Connick, 96-0403, p. 3 (La.10/15/96), 681 So.2d 944, 946. In addition, as concerning the adverse party, we find no jurisprudence justifying treating a for-hire witness differently than other witnesses.

The report that Buie prepared and that was admitted into evidence at the custody hearing, detailing his surveillance of Zu-ber, was certainly “pertinent and material.” See Oakes, 154 So. at 27. The issue before the court at the prior custody hearing was the best interest of the child, based on such factors as each party’s disposition to provide the child with love, affection, and spiritual guidance, his or her capacity to provide food, clothing, and other material needs, and the moral fitness of the parties. See La. C.C. art. 134. Zu-ber’s activities over the course of a weekend during which she exercised custody of the child could have contributed to the decision-making process.

In view of the recognized policy concerns and the posture of the instant case, we find the fundamental principles of witness immunity continue to shield a for-hire, volunteer witness against an adverse party’s subsequent defamation claim. The administration of justice and its objective to uncover the truth support the application of witness immunity. Courts must offer witnesses an environment free from apprehension and fear. Possible liability to the adverse party does not guarantee truth, and reliability may be adequately ensured by the witness’ oath, the hazards of cross-examination, and the threat of a perjury prosecution. See Bruce v. Byrne-Stevens & Associates Engineers, Inc., 118 Wash.2d 123, 126, 776 P.2d 666, 667 (1989).

In this instance, the witness’ report in lieu of live testimony was offered in a judicial proceeding. It was pertinent and material to the proceeding.' Therefore, the witness enjoys an absolute privilege protecting |7him from civil suit regardless of malice or falsity. See Burke v. Ryan, 36 La.Ann. 951, 951-52 (1884). Thus, the trial court’s judgment in favor of Buie, dismissing Zuber’s demands, was proper.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: FOIL, J.

text:
    BARBER BROTHERS CONTRACTING COMPANY, L.L.C. v. John E. MORGAN.
    No. 2002 CA 1712.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Michael L. Hebert, Baton Rouge, for Appellant Defendant John E. Morgan.
    David T. Butler, Jr., Baton Rouge, for Appellant Plaintiff Barber Brothers Contracting Company.
    Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, Jr.
   FOIL, J.

In this workers’ compensation case, the employer and employee both appeal. The employer, Barber Brothers Contracting Company, LLC, challenges the workers’ compensation judge’s determinations that: (1) John Morgan, the employee, sustained a work-related accident; (2) Mr. Morgan was temporarily, totally disabled; and (3) Barber Brothers continues to be liable for medical treatment and rehabilitation associated with Mr. Morgan’s injury. In his appeal, Mr. Morgan contends the workers’ compensation judge erred in reducing his weekly indemnity benefits and in failing to order Barber Brothers to pay all court costs. He also seeks an award of attorney fees for legal services provided on appeal.

DISCUSSION

Whether an employee has established a work-related accident, whether he is entitled to temporary total disability benefits, as well as the duration of his disability, are factual determinations subject to the manifest error or clearly wrong standard of appellate review. Franklin v. Georgia-Pacific Port Hudson Division, 01-1864 (La.App. 1 Cir. 9/27/02), 835 So.2d 592, 594; Collins v. Family Dollar Stores, Inc., 99-0622 (La.App. 1 Cir. 5/12/00), 760 So.2d 1210, 1214, writs denied, 00-2356, 00-2363 (La.11/13/00), 773 So.2d 727; Williams v. Wal-Mart Stores, Inc., 00-0863 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134, 1137. A workers’ compensation judge’s finding that an employee has refused to accept necessary rehabilitation, warranting a reduction in benefits under La. R.S. 23:1226(E), is also a factual determination. Ricaud v. Holloway Sportswear, Inc., 98-1422 (La.App. 3 Cir. 5/26/99), 741 So.2d 124, 129, writs denied, 99-1822, 99-1882 (La.10/1/99), 748 So.2d 454, 455. Thus, based on this applicable standard of review, and after a thorough review of the record, we find no manifest error in the workers’ compensation judge’s determination regarding these issues. We adopt his reasons for judgment as our own and attach a copy to this opinion.

3 Regarding the allocation of court costs, La. R.S. 23:1317(B) provides the allocation of such lies within the workers’ compensation judge’s discretion and can be reversed only upon a showing of an abuse of that discretion. Boleware v. City of Bogalusa, 01-1014 (La.App. 1 Cir. 12/20/02), 837 So.2d 71, 75; Washington v. Lyons Specialty Company, 96-0263 (La.App. 1 Cir. 11/8/96), 683 So.2d 367, 381, writ denied, 96-2944 (La.1/31/97), 687 So.2d 408. In this ease, the workers’ compensation judge ordered that each party be responsible for his respective costs. Given that neither party prevailed fully on the merits, we find no abuse of the workers’ compensation judge’s discretion in the assessment of costs.

Finally, Mr. Morgan requests that we award him attorney fees for defending this appeal. Although we may award damages for frivolous appeal under La. C.C.P. art. 2164, we find Barber Brother’s appeal was not frivolous. Accordingly, we decline to award attorney fees to Mr. Morgan. See King v. Gulf Coast Construction, Inc., 94-1019 (La.App. 4 Cir. 12/28/94), 648 So.2d 498, 500.

CONCLUSION

For the foregoing reasons, the workers’ compensation judgment is AFFIRMED. Costs of this appeal are to be borne equally by Mr. Morgan and Barber Brothers.

AFFIRMED.

Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

| ATTACHMENT

OFFICE OF WORKERS’ COMPENSATION

STATE OF LOUISIANA

JOHN E. MORGAN

VERSUS

BARBER BROTHERS CONTRACTING

NO. 00-06699

REPORTED BY: Marsha M. Donnelly, CCR.

REASONS FOR JUDGMENT taken before the Honorable Robert W. Varnado, Jr., Judge Presiding, District 6, Office of Workers’ Compensation, State of Louisiana, in Covington, Louisiana.

I ^REASONS FOR JUDGMENT

BY THE COURT:

Having weighed the evidence and observed the witnesses upon examination, the Court finds Morgan has proven by a preponderance of evidence that he suffered an injury by accident arising out of and in the course of his employment with Barber Brothers Contracting. Revised Statute 23:1021(1).

The Plaintiff continues to be temporarily totally disabled, and the Defendant continues to be responsible for Morgan’s reasonable and necessary medical care and rehabilitation.

The totality of evidence illustrates Morgan has failed to give an acceptable level of effort toward his own rehabilitation and re-entry into the work force. The testimony of Susan Davidson weighed heavy in this regard and as well as the testimony of the owner of the computer school Ms. Ruth Cook.

The record reflects numerous attempts by that of the Defendant to provide rehabilitation in an effort to maximize the possibility of returning Morgan to the work force. With the assistance of Susan Davidson, Barber Brothers initiated vocational testing. They also set up Morgan to take the DOTD test for specialized certification. Morgan did not pass his initial attempt, but thereafter refused individual tutoring and to retake the portions previously failed. Noteworthy, at trial Morgan testified he took the test three times.

Additionally, Morgan failed to complete a vocational resume. Due to Morgan’s interest in computers, Barber Brothers enrolled Morgan at Cook’s | ¡¡computer school in Hammond. Every attempt to accommodate him was made. An occupational therapist was retained to work with Morgan and to make suggestions for implementation and modification of his work station. This included a private area with specialized equipment. Nevertheless, Morgan’s participation dropped off.

Other efforts by the employer included offers of sedentary and modified light-duty positions. Morgan’s motivation and desire to return to the work force is low. Consequently, given the totality of evidence, the Court finds Morgan’s weekly indemnity benefits are reduced as of the date of signing judgment pursuant to Louisiana Revised Statute 23:1226(E) for failure to cooperate with vocational rehabilitation efforts but also to provide needed incentive.


text:
    STATE of Louisiana v. Jarbie BROWN.
    No. 2002 KA 2231.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Matthew Hagen, Ellen Daigle Doskey, Assistant District Attorneys, Houma, for State of Louisiana.
    Gwendolyn K. Brown, Baton Rouge, for Defendant-Appellant Jarbie Brown.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

Defendant, Jarbie Brown, was charged by bill of information with theft over $500.00 and aggravated flight from an officer, in violation of La. R.S. 14:67 B(l) and 108.1 C, respectively. He pled not guilty and, after trial by a six-member jury, was found guilty as charged on both counts. For the theft conviction, defendant received a sentence of imprisonment at hard labor for five years. For the aggravated flight from an officer conviction, defendant was sentenced to imprisonment at hard labor for a period of two years. The trial judge ordered the sentences to run consecutively.

Defendant has appealed, assigning the following specifications of error:

1. The trial court erred in imposing excessive sentences.
2. The trial court erred in failing to properly comply with the requirements of C.Cr.P. art. 894.1.
3. The trial court erred in denying the motion to reconsider sentence.

For the following reasons, we affirm defendant’s conviction and sentence for the crime of theft. However, because we have found patent error with respect to the composition of the jury that tried defendant for the crime of aggravated flight from an officer, we reverse that conviction, vacate the sentence, and remand.

FACTS

On October 23, 2001, Raymond Beasley discovered that someone had stolen the Chevrolet Cheyenne truck he was using for business purposes. He called his office, Beasley Pest Control Service, and reported the theft. Office personnel contacted the police and gave them a description of the vehicle. At the time of the theft, the truck had a value in excess of $15,000.00.

Officer Nicholas Pepper with the Houma Police Department was on patrol on the morning in question. He received a radio transmission concerning the stolen truck and proceeded to the area where the truck was last seen. Officer Pepper spotted the vehicle as it made a left turn onto Hobson Street in North Houma. He tried to get closer, but the driver of the truck took evasive action, making a sudden right turn. Officer Pepper radioed headquarters with the license number of the truck and advised lathat he was planning to make a traffic stop. The officer turned on his lights and siren. At this point, the driver accelerated sharply and made an erratic turn at a high rate of speed onto another residential street. As Officer Pepper gave chase, defendant ignored stoplights, ran through intersections, and continued to make high-speed sharp turns. According to Officer Pepper, defendant was often traveling as fast as 70 mph in 25 mph speed zones. At times, defendant drove in the wrong lane headed for oncoming traffic, causing cars to stop and pull over out of his way. He also drove at high rates of speed on the shoulders of roads to get around slow moving traffic. Defendant drove around a partial roadblock before another police vehicle joined the chase. He sideswiped two parked vehicles, sped past a school headed against traffic, and eventually rear-ended another car as he attempted to get away. As defendant tried to make a final sharp turn at high speed, he lost control of the vehicle and crashed into a house.

Throughout the chase, Officer Pepper maintained visual contact with the vehicle. When defendant bailed out of the truck, Officer Pepper got a close look at him. At one point, defendant was less than one foot away. He and Officer Eric Ricker pursued defendant on foot, but he got away. Both officers identified defendant in court at trial. According to Officer Ricker, he knew defendant by name at the time of the incident.

After losing defendant in a foot chase, Officer Ricker proceeded to a residence where he believed defendant might be hiding. He was given consent to search the residence. In one bedroom, Officer Ricker found what he recognized as the clothing the driver of the stolen truck had been wearing during the high-speed chase. After a further search, they found defendant hiding in the closet of another bedroom. At the conclusion of trial, defendant was found guilty as charged.

ASSIGNMENTS OF ERROR NUMBERS 1-3

In these related assignments of error, defendant complains regarding the consecutive sentences imposed by the trial judge. Because we have identified a patent error that requires us to reverse and remand the conviction for aggravated flight from an officer, we will only review the errors assigned as they apply to the theft conviction.

^Defendant contends the trial court abused its discretion by imposing an excessive sentence for his theft conviction of imprisonment at hard labor for a period of five years. In addition, he argues that the trial judge did not adequately comply with La.Code Crim. P. art. 894.1, that he should not have imposed consecutive sentences, and that he should have granted defendant’s motion to reconsider his sentence. We do not agree.

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. La.Code Crim. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. State v. Herrin, 562 So.2d 1, 11 (La.App. 1 Cir.), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Lewis, 489 So.2d 1055, 1061 (La.App. 1 Cir.), writ denied, 498 So.2d 1218 (La.1986).

The trial court has wide, although not unbridled, discretion in the imposition of a sentence within statutory limits. See State v. Sepulvado, 367 So.2d 762, 767 (La.1979). Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence will be determined to be excessive if it is grossly disproportionate to the crime, or is nothing more than the needless imposition of pain and suffering. The determination turns upon the punishment and the crime in light of the harm to society and whether the penalty is so disproportionate that it shocks our sense of justice. State v. Waguespack, 589 So.2d 1079, 1086 (La.App. 1 Cir.1991), writ denied, 596 So.2d 209 (La.1992).

A sentence may be excessive either by reason of its length or because the circumstances warrant a less onerous sentencing alternative. Waguespack, 589 So.2d sat 1086. A sentence imposed within the statutory limits will not be set aside as excessive in the absence of a manifest abuse of discretion. Sepulvado, 367 So.2d at 767; State v. Latiolais, 563 So.2d 469, 473 (La.App. 1 Cir.1990).

Specifically with respect to the theft conviction, the trial judge observed that defendant had only recently been released from juvenile detention for a similar crime. Based on defendant’s past record, the trial judge imposed a five-year sentence for his conviction of theft of property valued over $500.00.

After considering the circumstances of the theft offense and the reasons for sentencing given by the trial court, we find no abuse of discretion in the sentence imposed. The sentence is well within the statutorily permitted range for the crime committed. Defendant made no attempt to bring to the court’s attention any factors in mitigation. Although the trial judge in this case did not specifically refer to Article 894.1, we are satisfied, after a thorough review of the record, that there is no cause for a remand for re-sentencing. Accordingly, for all of the reasons stated herein-above, we cannot find that the trial judge manifestly abused his discretion with respect to the sentence imposed in this case for defendant’s theft conviction. Nor can we find that he erred in denying defendant’s motion to reconsider the sentence imposed. Defendant’s assignments of error are without merit.

PATENT ERROR

Louisiana Code of Criminal Procedure article 920, entitled “Scope of appellate review”, provides that “The following matters and no others shall be considered on appeal: ... (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” (Emphasis added.) Louisiana Code of Criminal Procedure article 5, entitled “Mandatory and permissive language”, provides, in pertinent part, that “The word ‘shall’ is mandatory.” (Emphasis added.) This language is clear and unambiguous. Its application is not limited to errors favorable or unfavorable to either the State or a criminal defendant. As set forth in La. Civ.Code art. 9, “[w]hen a law is clear and unambiguous ... the law shall be applied as written.” State v. Paoli, 2001-1733, p. 6 (La.App. 1 Cir. 4/11/02), 818 So.2d 795, 799 (en banc), | ¿writ denied, 2002-2137 (La.2/21/03), 837 So.2d 628. As mandated by Article 920, a patent error review has been made of the record on appeal, and a patent error has been found.

The minutes and record reflect that defendant in this case was tried by a six-member jury. Joinder of two or more offenses in a single bill of information is allowed by La.Code Crim. P. art. 493, provided that the offenses are triable by the same mode of trial. In this case, defendant was charged in Count 1 with theft, a crime punishable by imprisonment with or without hard labor. A six-person jury was required for that offense. See La. Const. art. I, § 17; La. R.S. 14:67 B(1); La.Code Crim. P. art. 782 A. Defendant was charged in Count 2 with aggravated flight from an officer. The crime of aggravated flight from an officer provides for punishment as follows at La. R.S. 14:108.1 E:

Whoever commits aggravated flight from an officer shall be imprisoned at hard labor for not more than two years. [Emphasis added.]

A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. La. Const. art. I, § 17; La.Code Crim. P. art. 782 A. In our view, the statute defining the crime of aggravated flight from an officer presents such a case and requires a jury of twelve. An error in the number of jurors trying a defendant constitutes patent error. State v. Smith, 367 So.2d 857, 858 (La.1979) (per curiam). A verdict returned by a jury composed of either more or less than the correct number of jurors is null. Smith, 367 So.2d at 858.

Although we have been unable to locate jurisprudence specifically addressing the number of jurors required for trial of the offense of aggravated flight from an officer, the- current Louisiana Criminal Code defines many crimes using the same type of [7penalty language found in La. R.S. 14:108.1 E. Decisions addressing the proper number of jurors to be empanelled in cases involving crimes with the same type of penalty provision as La. R.S. 14:108.1 E are highly persuasive. In the early decision of State v. Hayes, 161 La. 963, 109 So. 778 (1926), the Louisiana Supreme Court reviewed a case in which defendant was convicted of assault by willful shooting. At the time of the 1898 offense, the crime was defined at 1870 La. R.S. § 792, as amended by 1896 La. Acts No. 59, § 1. The penalty provision of the statute stipulated that whosoever shall assault another by willfully shooting at him ... “shall on conviction be imprisoned at hard labor not more than twenty years.” The Louisiana Constitution of 1898, like our present Constitution, provided that offenses necessarily punishable at hard labor were required to be tried before a jury of twelve. Hayes, 109 So. at 780. In Hayes, defendant was not tried by a jury of twelve. In reversing defendant’s conviction, the court explained:

At the time the offense is charged to have been committed (August 15, 1898), the crime of assault by willfully shooting at was an absolute felony, punishable by imprisonment at hard labor in the penitentiary, and not otherwise. Section 792, R.S., as amended by Act 59 of 1896.
| «Under the Constitution of 1898, which was in force at the time of the alleged offense, all absolute felonies were triable by a jury of 12.
The conclusion therefore is inevitable that the defendant was tried by an incompetent tribunal. The court was without power to sentence the defendant otherwise than as provided by Act 59 of 1896; that is to say, by imprisonment in the penitentiary.
From which it follows that the defendant could not be tried otherwise than as provided for the trial of offenses punishable by imprisonment at hard labor— which means imprisonment in the penitentiary — by a jury of 12, and not by a jury of 5.

Hayes, 109 So. at 780.

A series of early cases concerning the crime of manslaughter also demonstrates that a crime carrying a penalty of imprisonment at hard labor for a period of “not more than” a specific number of years must be tried before a jury of twelve. In State v. Porter, 176 La. 678, 146 So. 466, 466 (1933), the Louisiana Supreme Court interpreted the manslaughter statute as defining a crime necessarily punishable at hard labor, such that a defendant charged with manslaughter must be tried by a jury of twelve. The court expressed its view that failure to try a defendant charged with manslaughter before a twelve person jury constituted a non-waivable error patent on the face of the record. Porter, 146 So. at 466-467. The same conclusion was reached in State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942), wherein defendant alleged that his conviction for manslaughter before a jury of five was a nullity. The court noted:

If the defendant had been charged with the crime of manslaughter, the punishment for which is necessarily imprisonment at hard labor, he should have been tried by a jury of 12, and, therefore, the record, which shows that he was tried by a jury of five, discloses a patent error.

Vinzant, 7 So.2d at 920 (citation omitted). In State v. Bertrand, 167 La. 373, 119 So. 261 (1928), the court found manslaughter to be an offense “necessarily” punishable at hard labor in the context of determining the proper number of peremptory challenges available to the state.

More recently, the Louisiana Supreme Court commented on the number of jurors required to try a defendant on a charge of distribution of marijuana. In State v. Rabbas, 278 So.2d 45, 46 (La.1973), the court considered a prosecution pursuant to La. R.S. 40:971 B(2) (as amended by La. Acts No. 457 of 1970), which at the time provided for a penalty of imprisonment at hard labor for “not more than” ten years or payment of a. fine of not more than $15,000.00, or both. The court found that punishment assessed as imprisonment would “necessarily be at hard labor.” However, because the statute gave the trial judge the discretion to impose a fine instead, the case was triable only before a jury of five. Rabbas, 278 So.2d at 46. The language used by the court confirms our view that a penalty provision calling for imprisonment at hard labor for “not more than” a fixed number of years constitutes “punishment necessarily at hard labor” for purposes of determining the appropriate number of jurors constitutionally mandated. We expressed the same view in State v. Cutrera, 558 So.2d 611 n. 1 (La.App. 1 Cir.1990), commenting that a charge for distribution of Dilaudid was required to be tried before a jury of twelve where the statute provided a penalty of imprisonment at hard labor for “not more than” ten years.

Following the interpretation of the Louisiana Supreme Court of penalty language in other statutes that is the same or substantially similar to the penalty language found in La. R.S. 14:108.1 E, and our own interpretation of such language, we conclude that aggravated flight from an officer is an offense necessarily punishable at hard labor | requiring a jury of twelve. Since defendant was tried by a jury of six for this offense, we must reverse the conviction and sentence.

Although we reverse defendant’s conviction and vacate the sentence for the offense of aggravated flight from an officer, we need not disturb defendant’s conviction and sentence for theft. There is no question that the theft offense was tried before the correct number of jurors. Defendant never objected to the misjoinder. Nor did he file a motion to quash the bill of information on this basis. As the two offenses were so closely related, evidence of either one could likely have been offered as a part of the res gestae of the other. See State v. Bychurch, 97-2846, pp. 3-4 (La.App. 1 Cir. 11/6/98), 722 So.2d 1054, 1055, and cases cited therein. The officers in this case, entirely apart from attempting to establish the crime of aggravated flight from an officer, could have testified regarding their efforts to apprehend defendant, who was driving the stolen truck at the time. The fact that defendant was under visual observation during the chase of the stolen vehicle and the fact that he was known to Officer Ricker when he bailed out of the truck would have been material to his positive identification as the perpetrator of the theft. In Bychurch, we vacated one of two sentences imposed for crimes improperly joined and tried before a jury of six, [^remanding the matter to the district court for a new trial of the offense that should have been tried before a jury of twelve.

Accordingly, the theft conviction and sentence are affirmed. The conviction for aggravated flight from an officer is reversed, the sentence for same is vacated, and this matter is remanded to the district court for a new trial.

THEFT CONVICTION AND SENTENCE AFFIRMED; AGGRAVATED FLIGHT FROM AN OFFICER CONVICTION REVERSED AND SENTENCE VACATED; REMANDED FOR A NEW TRIAL.

      . Defendant filed a motion to reconsider the sentence imposed, which was denied on February 13, 2002.

      . See e.g., La. R.S. 14:95.2 (imprisonment at hard labor for not more than five years for carrying a firearm in specified locations, such as school property); La. R.S. 14:95.8 B(3) (imprisonment at hard labor for not more than five years for a third and subsequent offense of illegal possession of a handgun by a juvenile); La. R.S. 14:78 (imprisonment at hard labor for not more than fifteen years for the crime of incest between an ascendant and descendant or between a brother and sister); La. R.S. 14:114 (imprisonment at hard labor for not more than ten years for misprision of treason); La. R.S. 14:115 (imprisonment at hard labor for not more than ten years for the crime of anarchy); La. R.S. 14:128.1 (imprisonment at hard labor for not more than ten or not more than thirty years, depending on the manner of commission for the crime of terrorism); La. R.S. 14:129 (imprisonment at hard labor for not more than ninety-nine years for jury tampering where the offense being tried is punishable by death or life imprisonment); La. R.S. 14:26 B (imprisonment at hard labor for not more than thirty years for criminal conspiracy to commit a crime punishable by death or life imprisonment); La. R:S. 14:31 (imprisonment at hard labor for not more than forty years for manslaughter); La. R.S. 14:32.6 (imprisonment at hard labor for not more than fifteen years for the crime of first degree feticide); La. R.S. 14:34.6 (imprisonment at hard labor for not more than five years for disarming a peace officer); La. R.S. 14:54.1 (imprisonment at hard labor for not more than twenty years for communication of false information of a planned arson); La. R.S. 14:54.5 (imprisonment at hard labor for not more than five years for .possession of a fake explosive device); La. R.S. 14:110.1 (imprisonment at hard labor for not more than two years where an offender jumps bail set for a felony offense). None of these offenses make imprisonment without hard labor or a fine an alternative sentencing option.

      . We have reviewed the legislative history surrounding the enactment of the provisions of La. R.S. 14:108.1 defining the crime of aggravated flight from an officer and the pen-ally for commission of that offense. As originally proposed, the offense would have required imprisonment at hard labor for not more than ten years. Prior to passage, the proposal was amended to stipulate for a maximum five year penalty and finally for a maximum two year penalty. See Minutes of the Senate Committee on Judiciary Section, April 8, 1997, relative to Senate Bill 52; Minutes of the House Committee on Administration of Criminal Justice, May 28, 1997, relative to Senate Bill 52. No comment was made during discussion of the bill on the number of jurors that would be required to try this offense. However, it is clear that the senators understood that this crime would constitute a felony.

      . The Louisiana Revised Statutes of 1870 provided that an offender convicted of manslaughter be imprisoned at hard labor, not exceeding twenty years. 1870 La. R.S. § 786. The Louisiana Revised Statutes of 1915 carried forward the identical provision. 1915 La. R.S. § 1609. The Louisiana Criminal Code of 1942 increased the penalty slightly, stipulating that whoever commits manslaughter shall be imprisoned at hard labor "for not more than" twenty-one years. 1942 La. Acts No. 43, § 1, art. 31. La. Const, of 1921 art. 7, § 41 provided, as does our Constitution today, that all cases in which punishment is necessarily at hard labor shall be tried by a jury of twelve.

      . In both the Porter and Vinzant cases, the court ultimately found that defendant had been charged with a different offense, such that reversal of the conviction was not required.

      . Louisiana Code of Criminal Procedure article 799 provides for twelve peremptory challenges in a case necessarily punishable by hard labor.

      .Our discussion in Cutrera of distribution of Dilaudid was disapproved in State ex rel. Maries v. Thompson, 596 So.2d 193, 194 (La. 1992) (per curiam) as an incorrect statement of the law with respect to that crime. However, our reasoning with respect to the number of jurors required is nevertheless instructive.

      . We are aware that a number of criminal statutes impose a fine of "not more than” a certain fee. In certain cases, it has been held that this language does not impose any statutory minimum fee, so that if a trial judge elects not to impose a fine, patent error is not recognized. See State v. Legett, 2002-0153, p. 3 (La.App. 4 Cir. 5/22/02), 819 So.2d 1104, 1106; State v. Course, 2001-1812, p. 6 (La.App. 4 Cir. 1/30/02), 809 So.2d 488, 492. We are not persuaded that these cases are relevant to an interpretation of whether a statute necessarily mandates imprisonment at hard labor for purposes of determining the appropriate number of jurors required pursuant to the Louisiana Constitution and La.Code Crim. P. art. 782 A. We similarly find inapposite cases discussing the sentencing range for crimes with penalties of imprisonment at hard labor for "not more than” a certain number of years as being zero to the maximum number mentioned. This language has been used in cases dealing with the obligation of a trial judge to review the full sentencing range allowable under La.Code Crim. P. art. 894.1. See e.g., State v. Everett, 432 So.2d 250, 251 (La.1983). It has also been used in cases where there has been an attempt to harmonize statutes calling for differing penalties. State v. Piazza, 596 So.2d 817, 819-821 (La.1992). And it has been used when the issue is whether the court must instruct a jury regarding mandatory sentences. State v. Henderson, 31,986, p. 10 (La.App. 2 Cir. 8/18/99), 740 So.2d 240, 247. We do not view references to a range of sentences starting at zero in these contexts as authority for the proposition that crimes with penalties described in the terms used in La. R.S. 14:108.1 are not "necessarily” punishable at hard labor. Were we to so hold, it would mean that many serious crimes such as manslaughter, conspiracy to commit murder, and terrorism would be triable only to a jury of six. Moreover, were we to so hold, based on a sentence of zero years, defendant herein would have had no constitutional right to any type of jury trial.

      . We note the amendment of La. Const, art. I, § 17, which added subsection B providing for the joinder of certain offenses. See 1997 La. Acts No. 1502, § 1, effective November 1998. See also La.Code Crim. P. art. 493.2. However, the new provision does not solve the issue we face in this case because it only allows the joinder of such offenses where there is a twelve-person jury. As noted above, this case was tried before a six-person jury.