author: 2McMANUS, Judge.

text:
    STATE of Louisiana v. Matt W. SCHIEFFLER.
    No. 02-KA-1047.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Gretna, LA, for State.
    Kevin V. Boshea, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2McMANUS, Judge.

At issue in defendant’s second appeal is whether defendant’s sentence was excessive and whether the trial court erred in denying his motion to reconsider the sentence.

FACTS AND PROCEDURAL HISTORY

Defendant was convicted of possession of heroin, in violation of LSA-R.S. 40:966(C), on July 27, 1999. He was sentenced to ten years without the benefit of parole, probation or suspension of sentence and was ordered to pay a $5,000 fine. He appealed his conviction on the basis of insufficient evidence and asserted his sentence was excessive. In State v. Schieffler, 00-1166 (La.App. 5 Cir. 2/13/01), 812 So.2d 7, writ denied, 02-712 (La.9/13/02), 824 So.2d 1188, we affirmed defendant’s conviction for possession of heroin but determined we could not address defendant’s claim for excessive sentence because the trial court failed to rule on defendant’s motion for reconsideration of sentence. We remanded the matter for a ruling on the outstanding motion for reconsideration of sentence.

laUpon remand, the trial court denied defendant’s motion to reconsider sentence after a hearing. Pursuant to this Court’s instructions in State v. Schieffler, supra, defendant re-lodged his appeal seeking review of his sentence as excessive.

DISCUSSION

Defendant argues that his statutory maximum ten-year sentence and $5,000 fine is excessive. He contends that the trial court did not adequately consider the factors set forth in La.Code Cr. P. art. 894.1, when imposing the maximum sentence. Defendant asserts the trial court erroneously based his sentence on his criminal history instead of considering other factors such as: the small amount of drugs in his possession; his subsequent cooperation with the police in an undercover drug operation; his gainful employment as a tug boat captain; and the fact he supports his family. Defendant maintains he is not the worst offender for whom maximum penalties are intended. He also notes that the legislature has since amended the sentencing provision for possession of heroin and had he committed the crime today, he would have been eligible for a suspended sentence.

We note that defendant was convicted of possession of heroin. The law in effect (LSA-R.S.40:966(C)) at the time of his offense subjected him to a sentencing range of four to ten years without the benefit of parole, probation or suspension of sentence and a fine up to $5,000. Defendant received the statutory maximum of ten years without benefits and the maximum $5,000 fine.

Defendant filed a motion for reconsideration of sentence alleging his sentence was excessive and harsh. He also filed a supplemental motion for reconsideration of sentence alleging the $5,000 fine was constitutionally excessive because he was indigent.

|4La.Code Cr. P. art. 881.1, provides that a defendant may file a motion to reconsider the legality, under statutory sentencing guidelines, of a sentence within 30 days of sentencing. The article requires that the motion be made orally at the time of sentencing, or in writing, and that it set forth the specific grounds on which the motion is based. The failure to state the specific grounds upon which the motion is based, precludes the defendant from raising the issue on appeal. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Failure to comply with La.Code Cr. P. art. 881.1, does not preclude a review of defendant’s sentence for constitutional excessiveness.

In the present case, defense counsel orally objected to the sentence by stating, “[w]ould you note our objection to your sentence.” During the hearing on defendant’s motion for reconsideration of sentence, defendant argued his sentence was excessive considering the small amount of heroin he possessed and the fact the Legislature had since amended the statute to allow for a more lenient sentence. He further argued that the amendment indicated the Legislature recognized the prior statutory sentence for possession of heroin was unduly harsh. However, defendant did not raise the issue of the trial court’s failure to comply with La.Code Cr. P. art. 894.1, either in his oral objection, his written motion for reconsideration of sentence, or in his argument on the motion for reconsideration of sentence. Thus, he failed to preserve this issue for appeal.

Nonetheless, defendant is entitled to a review of his sentence for constitutional excessiveness. The United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const, of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 759 So.2d at 968. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069.

In reviewing a sentence for ex-cessiveness we must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. Three factors are considered in reviewing a trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same and other courts. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id.

In sentencing defendant, the trial court stated:

Mr. Schieffler failed to appear in court on numerous occasions, but sent messages to the Court that he was working as a captain somewhere offshore, and he just couldn’t make it.
Mr. Schieffler was arrested finally on this charge when he was supposed to be in Texas acting as the captain of a vessel, instead he was picked up for another crime here in Jefferson Parish, Louisiana, for which the charges are still pending.
Mr. Schieffler has a long and checkered criminal past. His record exhibits many, many breaks having been given to Mr. Schieffler in the past. The evidence against Mr. Schieffler was overwhelming in this case. Because Mr. Schieffler has significant prior convictions, and a significant criminal history, and because of the manner in which he behaved during the pendency of this case, it is |fithe sentence of this Court that Mr. Schief-fler be sentenced to ... 10 years.

In denying defendant’s motion for reconsideration of sentence, the trial court gave the following reasons:

Okay, significantly before I end up counting the pages of the rap sheet, I counted 60 prior arrests.
In 1975 Mr. Schieffler was convicted of possession with intent to distribute marijuana; in 1976 he was convicted of possession of marijuana; in 1983 he was convicted of arson; in 1983 he was convicted of distribution of Schedule II drugs; in 1983 he was convicted of sim-pie escape; in 1986 he was convicted of possession of Dilaudid; in 1993 he was convicted of possession of stolen things; in 1982 he was convicted of a D.W.I.; in 1994 he was convicted of D.W.I in Tex-arkana; in 1996 he was convicted of operating a vessel as a captain while under the influence of dangerous drugs in Federal Court; and in 1999 this matter came on for trial.
At the time of this trial he had 12 prior convictions, one of them might have been a misdemeanor. With regard to this case the Bill of Information was filed on August 29, 1997. Mr. Schieffler appeared in open court on February 18, 1998. On March 19, 1998 Mr. Schieffler failed to appear and an attachment was issued. The Court was informed that Mr. Schieffler was a captain and he was offshore, so therefore it was given another date because his attorney requested that it be given another date.
On April '98 Mr. Schieffler did not appear; in May of '98 Mr. Schieffler again did not appear. Mr. Schieffler did not appear until April 23rd of 1999, represented by Mr. Grefer, who had made special arrangements with the Court because Mr. Schieffler was off the boat.
* * * *
The sentencing guidelines, Louisiana Code of Criminal Procedure Article 894.1 speaks specifically in paragraph 1 that there is an undue risk that during a period of a suspended sentence of probation the defendant will commit another crime.
At paragraph 2, the defendant is in need of correctional treatment or custodial environment, which can be provided most effectively by his commitment to an institution.
|7And further along there is a further paragraph that gives the Court the opportunity to consider prior convictions, additionally when there is no multiple bill in a multiple bill situation.
Mr. Schieffler by virtue of his prior convictions is sentencible to mandatory life imprisonment, without benefit of probation, parole or suspension of sentence. The State of Louisiana in its wisdom in this case, unlike other cases, has for some reason made a decision not to Multiple Bill Mr. Schieffler. Therefore, Mr. Schieffler in this case received the maximum sentence because of his criminal history has shown that there is no way to confine Mr. Schieffler to a law abiding life.
Further, that Mr. Schieffler continues by operating motor vessels and motor vehicles while under the influence of heroin, Dilaudid and other extremely dangerous drugs to endanger other members of society.

We note that at the time of sentencing, defendant was 41 years old. As demonstrated above, the trial court took careful note of defendant’s long history of criminal activity, which included 60 arrests and 12 convictions, and defendant’s apparent failure to reform his criminal behavior over his 22-year period of criminal activity. Despite defendant’s argument that criminal history alone cannot support a maximum sentence and that other factors should be considered, the record demonstrates the trial court did, in fact, consider other factors besides his criminal history in imposing the maximum sentence. Defendant also argues his gainful employment as a tug boat captain should have been considered as a mitigating factor. However, the record shows defendant was unemployed at the time of his offense due to a severe back injury where defendant suffered four herniated discs.

Our review of the record reveals that defendant showed a complete lack of respect for the court by failing to appear for numerous court dates. Moreover, the record supports the trial court’s finding that defendant posed a safety risk to society by his continued operation of motor vehicles while under the influence of drugs. At the time of his present offense, he was found unconscious in the driver’s seat of |sa running vehicle, stopped on railroad tracks at a green light. The record also contains evidence that defendant was previously convicted for operating a vessel under the influence of drugs.

Additionally, defendant asserts that consideration should have been given to the subsequent amendments to the penalty for possession of heroin which allows for a suspended sentence. Although the statute in effect at the time of the commission of the offense applies, subsequent amendments to statutes have been recognized to be relevant in sentencing. State v. Clark, 391 So.2d 1174, 1176 (La.1980). Even though the Legislature amended the penalty for possession of heroin to allow for a suspended sentence, it is important to note that the Legislature did not amend the number of years with regard to the sentencing range. Further, a suspended sentence under the amended version of LSA-R.S. 40:966(C) is not automatic. We point out that defendant may not have even been eligible for a suspended sentence under the guidelines of La.Code Cr. P. art. 893, given his prior criminal history.

Based on the record before us, we do not find imposition of the maximum sentence to be excessive. As previously noted, defendant missed numerous court dates and showed complete lack of respect for the trial court. He has a long criminal history with 60 arrests and 12 convictions spanning 22 years. The circumstances surrounding defendant’s present offense and his past offense of operating a vessel under the influence of drugs shows a complete disregard for the safety of others. While defendant did cooperate in a subsequent undercover operation, more than likely he did so in an attempt to help himself.

ERROR PATENT DISCUSSION

This Court previously conducted an error patent review of the original record in this case at the time of defendant’s first appeal and found no errors that merited consideration. Defendant is not entitled to another error patent reviewl 9 under the circumstances of this case. See, State v. Taylor, 01-452 (La.App. 5 Cir. 11/14/01), 802 So.2d 779, 783; State v. Alberto, 95-540 (La.App. 5 Cir. 11/28/95), 665 So.2d 614, 625.

CONCLUSION

Based on the foregoing, we affirm defendant’s sentence.

AFFIRMED.

      . LSA-R.S. 40:966(C) has since been amended and currently allows the sentence to be imposed with benefit of parole, probation or suspension of sentence. Acts 2001, No. 403, § 4, effective June 15, 2001. It is well-established that the law in effect at the time of the commission of the offense is determinative of the penalty to which the accused is subject. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518.


source: Caselaw Access Project

author: 2SOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brad HARRIS.
    No. 02-KA-1048.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and SUSAN M. CHEHARDY.
   2SOL GOTHARD, Judge.

In this appeal defendant, Brad Harris, appeals his sentence on a conviction of attempted aggravated rape. This criminal matter has been before this Court on two prior occasions. After the conviction, defendant was sentenced to serve fifty years at hard labor. Subsequently, the State filed a bill of information alleging that defendant was a repeat felony offender. At the conclusion of the habitual offender hearing, the trial court adjudicated defendant a fourth felony offender. The court vacated the original sentence and re-sentenced defendant to life in prison at hard labor. Defendant appealed his conviction and sentence to this Court. State v. Harris, 99-1288 (La.App. 5 Cir. 1/24/01), 782 So.2d 1055, writ denied, 01-0485 (La.1/25/02), 806 So.2d 668. In that appeal this Court affirmed defendant’s conviction on the underlying charge, but vacated the habitual offender adjudication and sentence, and remanded the matter for further proceedings. On remand the State withdrew the habitual offender bill, and moved for the court to re-sentence defendant. The trial court sentenced defendant to fifty years without benefit of parole, probation or suspension of sentence. Defendant filed a Motion to Reconsider Sentence. The matter was again appealed to this Court; however, | .^because the trial court failed to rule on the defendant’s motion to reconsider sentence, we remanded the case with instructions to the trial court to rule on the outstanding motion. This Court also ordered the defendant to re-lodge his appeal within sixty days of the date of the ruling on the Motion to Reconsider Sentence, or the date of the opinion, whichever came later. State v. Harris, 01-1243 (La.App. 5 Cir. 2/26/02), 811 So.2d 984. On second remand the trial court denied the motion to reconsider sentence and determined that defendant’s fifty-year sentence would stand. Defendant now appeals that ruling.

In brief to this Court, defendant asserts the trial court erred in denying his Motion to Reconsider Sentence and in imposing the maximum sentence of fifty .years.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991). Maximum sentences are reserved for the worst offenders. State v. Lefeure, 00-1142 (La.App. 5 Cir. 1/20/01), 778 So.2d 744, 755, writ denied, 01-1440 (La.9/21/01), 797 So.2d 669. The trial judge is given wide discretion in determining a sentence, and if the record supports the sentence imposed, the court of appeal will not set it aside on grounds of excessiveness. LSA-C.Cr.P. art. 881.4D; State v. Richmond, 98-1051 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 38.

Factors an appellate court may consider in reviewing the sentencing judge’s discretion are: 1) the nature of the crime, 2) the nature and background of the Loffender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Ulmer, 99-1079 (La.App. 5 Cir. 1/25/00), 751 So.2d 1017, 1019. A sentencing judge may consider a defendant’s prior convictions, as well as past criminal behavior that did not result in a conviction. State v. Anderson, 02-273 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, 522.

Defendant’s primary argument on appeal is that he is not the worst type of offender, for whom maximum sentences are reserved. He points out that was a dissent from this Court’s original opinion, which questioned the sufficiency of the evidence used to convict defendant of attempted aggravated rape. State v. Harris, 782 So.2d at 1062. However, defendant’s conviction for attempted aggravated rape was affirmed by this Court. Moreover, in his dissent, Judge Daley commented that, “Defendant committed a violent crime against the victim, and he should be prosecuted and incarcerated.” Id. at 1063.

At defendant’s original sentencing hearing, defense counsel asked the court to take into consideration that defendant’s criminal conduct was induced by his chronic and long-term drug abuse. The record shows the trial judge did not view defendant’s drug habit as a mitigating factor in sentencing. In imposing sentence, the judge stated:

Mr. Harris, I am imposing the sentence I am imposing because your criminal record is extreme.
Because, you are now a middle aged man and you have been given every opportunity through' — You have had the course of your life to attempt to become drug free. I think that it may very well be likely that drugs induced your behavior. The problem is, Mr. Harris, your drug induced behavior visits itself upon innocent people who are simply trying to live their lives.
Therefore, I have imposed the maximum sentence in this case. And I will impose the maximum sentence in a multiple bill situation.

|KThe judge did not give reasons when she re-sentenced defendant to fifty years on September 5, 2001. However, upon her recent denial of defendant’s Motion to Reconsider Sentence, the trial judge stated:

The Court was very comfortable in its decision, and indeed did take into consideration during its deliberation in that case whether or not this was an attempted robbery rather than an attempted rape, and was very comfortable with its decision that the State had proven beyond a reasonable doubt that it was an attempted rape.
The Court in the throws of sentencing certainly took into consideration Mr. Harris’s entire criminal history, which was indeed excessive and escalating toward more and more violence, and while this Court is frequently engaged in the effort toward rehabilitative sentencing, wherein the Court sends individuals off to the job programs, Job Corp, Teen Challenge, and Drug Court and things like that, Mr. Harris is one of those individuals who needs to be locked up for as many years as we can possibly lock him up, because Mr. Harris is a violent, violent man who knows nothing of the normal social morays [sic] of our society.

Although this Court, finding error, vacated the trial court’s habitual offender finding, the prior felony convictions alleged by the State demonstrate a long and violent criminal history. In one case cited in the habitual offender bill, the State alleged defendant was charged with twenty-four counts of armed robbery in Orleans Parish, and pled guilty to fifteen of those counts in 1986. The habitual offender bill further alleged that defendant pled guilty to simple robbery in 1983, and to illegal possession of stolen things in 1980.

Based on the foregoing, the trial court did not abuse its discretion in imposing a fifty-year sentence. Thus, we find the trial court properly denied defendant’s Motion to Reconsider Sentence.

We have reviewed the record for errors patent pursuant to LSA-C.Cr.P. art. 920. See also, State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We have found the following error.

When defendant was originally sentenced in 1998, the trial court advised him that he had three years to file post conviction relief. When the defendant was |fire-sentenced, the trial court made no further mention of the prescriptive period for applying for post conviction relief. Under the current version of LSA-C.Cr.P. art. 930.8, a defendant has two years from the date “the judgment and conviction become final” within which to file a post conviction relief application. Paragraph C of the article requires the trial court, at the time of sentencing, to inform the defendant of the prescriptive period. The trial court’s instruction was incomplete, and included a prescriptive period that has since been revised. Accordingly, it is ordered that the trial court properly inform defendant of the article’s current provisions in writing, and to place proof of said notification in the trial court record. State v. Stelly, 98-578 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.

AFFIRMED AND REMANDED WITH ORDER.

      . Defendant failed to delineate specific grounds for his motion as required by LSA C.Cr.P. art. 881.1A(2). A defendant's failure to satisfy the provisions of Article 881.1 normally precludes review of a sentence on appeal. However, this court has routinely reviewed sentences for constitutional excessiveness. State v. Anderson, 01-789 (La.App. 5 Cir. 1/15/02), 807 So.2d 956.


author: 2SUSAN M. CHEHARDY, Judge.

text:
    Donald ROVIRA and Julie Rovira, v. Dr. George BYRAM, Jr.
    No. 02-CA-1115.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.
    Writ Denied May 9, 2003.
    Joseph W. Thomas, New Orleans, LA, for Plaintiffs-Appellants, Donald Rovira and Julie Rovira.
    Mary Fuchs Gaudin, Mang, Batiza, Gau-din, Godofsky & Penzato, Metairie, LA, for Defendant-Appellee, Dr. George Byram, Jr.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS A. DALEY and SUSAN M. CHEHARDY.
   2SUSAN M. CHEHARDY, Judge.

The plaintiffs appeal a summary judgment that dismissed their medical malpractice suit against the defendant. We affirm.

At age 29 Donald Rovira suffered from avascular necrosis of both hips and underwent surgery for bilateral femoral bone grafts in April 1992. The surgery was performed by Dr. George Byram, Jr. The bone grafts failed; as a result, Mr. Rovira had to have total hip replacement surgery on the right side in August 1992 and on the left side in March 1993.

Mr. Rovira filed a medical malpractice claim against Dr. Byram. After proceedings before a medical review panel concluded in May 1996, Mr. Rovira and his wife, Julie Rovira, filed suit against Dr. Byram. They alleged that Dr. Byram performed the bilateral grafting of the hips without obtaining full and adequate informed consent from Mr. Rovira; that the bilateral graft of the hip was contraindicated because Mr. Rovira’s hips were too collapsed for the procedure to be successful; that Dr. Byram knew or should have known Mr. Rovira’s hips were too collapsed for the procedure to be successful; that Dr. Byram waited too long before consulting another physician concerning Mr. Rovira’s fever; that Dr. Byram improperly performed the total right hip replacement surgery and it was done without full and adequate informed consent; that Dr. Byram did not properly | .¡manage and did not advise the plaintiffs of the split of Mr. Rovira’s femoral shaft during the procedure; that the injuries sustained by Mr. Rovira while attempting to ambulate on August 7, 1992 were not properly managed; and that Dr. Byram waited too long before ordering a culture of the wound site.

Dr. Byram filed a motion for summary judgment. In support of the motion he attached a copy of the medical review panel’s opinion and reasons, in which the panel rendered a unanimous opinion that the evidence does not support the conclusion that Dr. Byram failed to meet the applicable standard of care as charged in the complaint.

The defendant attached an affidavit from Dr. Matko Milicic, a member of the medical review panel, attesting that the panel’s reasons for the opinion rendered were as follows: the indications for the bone graft surgery were present and the disease was not too far advanced for the procedure that was performed; the records indicate that the patient was adequately informed on surgical procedures; the patient suffered a recognized complication of the bone grafting procedure and his disease, which led to the total hip arthro-plasty both on the right and then later on the left; there was no evidence in the record of a deep wound infection or a bone infection; review of the records and x-rays indicate that there is no evidence that the right total hip replacement was improperly performed; a crack in the calcar is a very common occurrence in this procedure and was recognized and treated appropriately; small differences in limb length commonly occur following total hip replacement.

In further support of the motion the defendant submitted numerous other documents: portions of Donald Rovira’s medical records; a copy of the consent form signed by Donald Rovira; an affidavit by Michael Wallace, a medical assistant employed by Dr, Byram’s clinic; a medical report and deposition of Dr. J. |4Lee Moss; deposition testimony of Dr. Byram, Donald Rovira, Julie Rovira, Dr. Ronald P. Grel-samer (the plaintiffs’ expert witness), and Dr. Bernard Manale (who performed the left-hip replacement surgery on Mr. Rovi-ra); and a portion of the transcript from another medical malpractice suit by Donald Rovira against other physicians, in which the trial court refused to accept as an expert Dr. Richard Gardner, calling him “a charlatan and a liar” (Rovira v. McCord, No. 478021, Division “B,” Twenty-Fourth Judicial District Court).

In opposition to the motion, the plaintiffs implicitly conceded that the only issue remaining before the court was whether Dr. Byram had obtained appropriate informed consent from Mr. Rovira before the bone graft surgery. The plaintiffs asserted that Dr. Byram led them to believe that the proposed bone graft surgery had greater than a fifty percent chance of success, when in fact the prospects of success from the bone graft were less than twenty percent. In support of their opposition the plaintiffs filed the affidavit of Mr. Rovira and the deposition of Dr. Ronald P. Grel-samer, the plaintiffs’ expert witness.

The trial court granted the motion, dismissing the claims, and the plaintiffs appeal.

The plaintiffs assert that summary judgment was inappropriate because there were material issues in dispute, specifically, whether Dr. Byram told Mr. Rovira that the prospects of success of the bone graft were low and whether Dr. Moss (from whom Mr. Rovira obtained a second opinion) told Mr. Rovira that there was a greater than eighty percent chance that the bone graft would fail. Mr. Rovira asserted in his affidavit that he would not have consented to the operation if he had been told that the prospect of success of the proposed surgical procedure was very | Rsmall. Dr. Grelsamer, Mr. Rovira’s expert witness, testified in deposition that the rate of success of bone grafts is about twenty percent and that the standard of care was violated if Mr. Rovira were not told about the small prospects of success of the bone graft surgery.

In opposition the defendant asserts the sole issue before the Court is whether Mr. Rovira was provided adequate informed consent by Dr. Byram prior to the bilateral bone grafting procedure in April 1992. The defendant contends there is no factual dispute and that he is entitled to judgment as a matter of law.

This Court recently restated the guidelines for appellate review of summary judgments in Johnson v. Hernandez, 01-575, pp. 8-9 (La.App. 5 Cir. 10/30/01), 800 So.2d 1055, 1058-1059, writ denied 01-3065 (La.12/14/01), 804 So.2d 640:

Louisiana Code of Civil Procedure Article 966 explains that summary judgment procedure is “designed to secure the just, speedy, and inexpensive determination of actions.” It is favored and shall be construed to accomplish these ends. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. The article farther provides that if movant will not bear the burden of proof at trial, movant’s burden does not require him to negate all essential elements of the adverse party’s claim. Rather, he need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Finally, the statute provides that if the adverse party fails to produce factual support to show that he will be able to satisfy his burden of proof at trial, there is no genuine issue of material fact. It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial court to determine whether summary judgment is appropriate. Any decision as to the propriety of a grant of the motion must be made with reference to the substantive law applicable to the case.
Pursuant to LSA R.S. 9:2794, in order to prevail at trial plaintiffs must prove the applicable standard of care, a breach of that standard, and causation of injuries due to the breach. To defeat defendants’ Motions for Summary Judgment, plaintiffs must come forward with suffí-cient |fievidence to show they can meet their burden of proof at trial. [Citations omitted.]

La.R.S. 40:1299.40, the Uniform Consent Law, provides in pertinent part:

A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed.... Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.

The pre-printed consent form that Mr. Rovira signed prior to his bone graft surgery listed the purpose of the surgery (“to try to restore circulation to both hips”) and listed risks known to be associated with the procedure (“death, brain damage, quadriplegia ..., paraplegia ..., loss of organ, loss of arm or leg, loss of function of an organ, loss of function or an arm or leg, disfiguring scars”). It also contained a pre-printed statement by the patient that said, “I hereby state that my physician has explained the operation/procedure to me. I have read and understand this consent, all questions about the procedure or procedures have been answered in a satisfactory manner, and that all blanks were filled in prior to my signature.”

Thus, the form broadly complied with La.R.S. 40:1299.40.

The Louisiana Supreme Court analyzed the issue of informed consent and La.R.S. 40:1299.40 in Hondroulis v. Schuhmacher, 553 So.2d 398, at 410 (La.1988) (on rehearing):

Where circumstances permit, the patient should be told the nature of the pertinent ailment or condition, the |7general nature of the proposed treatment or procedure, the risks involved in the proposed treatment or procedure, the prospects of success, the risks of failing to undergo any treatment or procedure at all, and the risks of any alternate methods of treatment.
The doctor’s duty is to disclose all risks which are “material”. In broad outline, a risk is material when a reasonable person in what the doctor knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.
The factors contributing significance to a medical risk are the incidence of injury and the degree of the harm threatened. If the harm threatened is great, the risk may be significant even though the statistical possibility of its taking effect is very small. But if the chance of harm is slight enough, and the potential benefits of the therapy or the detriments of the existing malady great enough, the risk involved may not be significant even though the harm threatened is very great.
The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. “Some” expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient’s position probably would attach significance to the specific risk. This determination of materiality does not require expert testimony.
There must be a causal relationship between the doctor’s failure to disclose material information and material risk of damage to the patient. Because of the likelihood of a patient’s bias in testifying in hindsight on this hypothetical matter, this court and others have adopted an objective standard of causation: whether a reasonable patient in the plaintiffs position would have consented to the treatment or procedure had the material information and risks been disclosed. [Citations and footnotes omitted.]

553 So.2d at 411-412.

[I]t is a reasonable and constitutional interpretation of the statute that a physician must disclose all known | «material risks to his patient, but only if the risk foreseeably may result in “death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, [or] disfiguring scars”, in order to qualify the written consent for the presumption of validity. These undoubtedly are the most serious types of damage which may result from medical treatment or surgery. If the risk is one that cannot foreseeably result in damage of this type it does not fall within the ambit of the statute. Accordingly, these damage categories serve to mark the limits of the legislated law and were not intended to deprive patients of the concrete case-specific material information that is essential to an informed and intelligent decision as to proposed treatment. [Citations and footnotes omitted.]

553 So.2d at 419.

We believe that ... an objective test of awareness is therefore more appropriate in interpreting and applying the statute. Accordingly, the physician is required to disclose material risks in such terms as a reasonable doctor would believe a reasonable patient in the plaintiffs position would understand. Technical language will not ordinarily suffice to disclose a risk to an untutored layperson; and abstract or blanket terms may not be adequate to communicate specific dangers. In order for a reasonable patient to have awareness of a risk, she should be told in lay language the nature and severity of the risk and the likelihood of its occurrence. [Citations and footnotes omitted.]

553 So.2d at 421.

Consequently, a notice of risk of “loss of function of body organs”, without any description of the frequency of occurrence, the specific organ threatened or the cause of the damage involved, tends to deemphasize the severity and frequency of the hazard. By requiring the doctor to set forth the material risks “in general terms” the statute demands that he describe the main elements of each risk rather than limited details, but it does not permit him to “generalize” in the sense of making vague or indefinite statements that do not understandably communicate the specific material risks to the patient. Any other interpretation of the statute would frustrate rather than promote intelligent self determination by patients and thereby undermine the informed consent doctrine and the patient’s right to privacy. [Citations and footnotes omitted.]

553 So.2d at 421-422.

The question is whether the plaintiff has raised genuine issues of material facts as to whether Dr. Byram’s failure to tell him the odds of success of the bone graft were twenty percent was a misrepresentation of material fact that induced him to consent to the surgery.

In his deposition, Dr. Grelsamer stated there is a question of whether adequate and informed consent was provided to the plaintiff. He said that the bone-grafting procedure was an operation that had a low probability of success and the issue raised by the plaintiff is that he was not appraised of the low chance of success. Dr. Grelsamer based his opinion that the plaintiff was not adequately informed of the low probability of success on a combination of the plaintiffs own feeling that he had not given informed consent and the fact that Dr. Grelsamer did not see anything in writing to suggest that he had received the consent, other than Dr. Byram’s deposition.

According to Dr. Grelsamer, the standard of care regarding informed consent requires that “[Y]ou have a frank discussion with the patient with regards to the odds of success or failure and this is usually done in such a way that the patient has ample time to think it over and ask around and then make an informed decision.” By “ask around,” Dr. Grelsamer said, he meant obtaining a second opinion or discussing it with friends or looking it up on the Internet or in a library. He said he felt a minimum of two weeks time before the surgery would be “an absolute minimum” to allow the patient to review the options.

Dr. Grelsamer admitted that some people tell the doctor, “Whatever you say, doctor ... I’ll take your advice,” while other patients “are more inquisitive and want | mto do more research.” He stated that if adequate informed consent was not provided, it would be a deviation from the standard of care.

Dr. Grelsamer said a frank discussion with the patient would be “a discussion of what the probability of success of such an operation would be in this particular setting.” He stated that the odds of success for bone graft surgery are “low, ... perhaps less than twenty percent in a hip that already has been diagnosed [with avascu-lar neurosis]; this is something that has to be made clear to the patient.”

Grelsamer said that his review of the records gave him no evidence that there was adequate consent; he saw nothing in the consent form signed by Mr. Rovira or the office medical records of Dr. Byram that showed the doctor had informed Mr. Rovira of the odds of success. Asked whether in his opinion there would have been damage or harm done if informed consent was not provided in this case, Dr. Grelsamer said, “Well, as with any informed consent or lack thereof, the patient is deprived of the opportunity to make his or her own decision as to what is going to be performed on their body.”

Regarding other damage with respect to this patient, he said,

[A]s of right now, I don’t believe there was any particular harm other than the pain and increase[d] vulnerability to infection associated with the procedure.
Clearly, with each year that passes and each operation that is performed without him developing an infection, the lower the odds of that dormant bacteria coming to life.
So the answer is yes, by now I would have expected him to have developed an infection.
So to summarize, the risk of infection was there but does not seem to have materialized.

Dr. Grelsamer was asked, however, “If you were provided information that the procedure was discussed and Mr. Rovira did have time to ask around, would l^you find any deviation in the standard of care at that point?” Dr. Grelsamer replied, “No, I would not.” He also was asked, “Believing that all the options ... that several options were discussed with Mr. Rovira, would that change your opinion?” and he replied, “Most definitely, if it was done a few weeks before, absolutely.”

The defendant argues that Mr. Rovira knew that the prospects of success of the bone graft were small because he obtained a second opinion from Dr. Moss. The plaintiff contends, however, that argument is without merit because the statute requires the doctor who is going to perform the surgery to tell the patient the prospects of success, so what Dr. Mos's told Mr. Rovira is not relevant to the informed consent issue. Further, the plaintiff asserts, whether Dr. Byram did so is a disputed fact at this stage of the case and what Dr. Moss told Mr. Rovira also is a disputed fact.

Mr. Rovira testified that he first saw Dr. Byram on March 27, 1992 due to enduring severe right hip pain for approximately three months to thq, point that he “couldn’t take it any more.” He said Dr. Byram explained to him that he had avascular necrosis, which meant that “the bones themselves died.” He stated that Dr. By-ram described how the bone graft surgery would be performed and told him “that was the only way to go.” He admitted that Dr. Byram didn’t guarantee it, “[h]e just told me it was the only thing to do, and that’s what he thought should be done.” Asked whether Dr. Byram ever discussed total hip replacements prior to the bone graft surgery, Mr. Rovira said, “No, not really.”

Asked what he recalled Dr. Byram discussing with regard to the risks of the bone graft surgery, Mr. Rovira said, “I think he told me death ... excessive bleeding.... It was pretty much the same routine that I have heard from other doctors when I went in to see before, when you sign the papers for surgery.” He bssaid Dr. Byram told him the bone graft was “instead of having the hip replacement to try to grow the bones back.” He understood “that was the hope that I wouldn’t have to” have a hip replacement. He admitted he “knew people could have total hips,” but denied that Dr. Byram discussed that with him.

Mr. Rovira denied at first that he ever sought a second opinion prior to the bone graft surgery, although he said he asked Dr. Moss when he came into his room while he was recuperating after his hip replacement surgery. According to Mr. Rovira, Dr. Moss told him that “Dr. By-ram’s a good doctor” and “that’s all I can do for you.” Mr. Rovira subsequently admitted he may have seen Dr. Moss for a second opinion prior to the bone graft surgery, but he did not remember.

Dr. Byram testified that he recalled a long and extensive discussion with the Ro-viras at the time of Mr. Rovira’s initial visit. He said Mr. Rovira had very limited options: live with it; get a full-hip replacement; or do a bone graft to try to salvage the hip. Due to Mr. Rovira’s young age of 29, Dr. Byram thought it would be best to try to salvage the hip with bilateral bone grafting; he advised Mr. Rovira “that this would be painful for a number of months” and would require a number of months, “even two to three years to obtain final results.” He told Mr. Rovira “there was a small chance he might have some problems” with the allograft (i.e., use of cadaver bone rather than the patient’s own bone, which would have required additional surgery to harvest the bone). Dr. By-ram said, “I thought this was preferable to hip and joint replacement as this was the only other alternative.”

Dr. Byram admitted that among the things he is required to tell a patient are the material risks associated with the procedure and the likelihood of success, but said he doesn’t write down everything he says: “Whatever we have is what’s here, what’s in my records. I discussed things with them more than that. We had a long discussion about all of this.” He insisted he discussed with Mr. Rovira “in detail” |13the likelihood of success, although there were “no percentages spelled out.” Dr. Byram testified, “Everything is not included in here. I had a long discussion from the beginning about the problems with this whole thing.” Dr. Byram said further:

And that goes back to the very beginning when we initiated treatment that a total hip replacement in a young individual, age 29, is not a good long-term procedure. It will last five or six years. The incidence of failure is extremely high and revisions would be necessary on several occasions. And, with each revision, usually the results are worse, so he’s looking at a long-term serious problem for his future. That’s exactly the reason we embarked on the bone grafts, even though we knew there was not an overwhelming chance of success rate.

In her deposition Julie Rovira stated that she did not understand that an eventual hip replacement might be necessary “because Dr. Byram said the bone graft could work.” She said he did not give them a success rate and they did not ask him for a percentage chance of success.

Dr. J. Lee Moss testified that Donald Rovira had previously been a patient of his and came to him on April 3, 1992 for a second opinion on the bone graft surgery. Dr. Moss’ notes reflect the following:

He is here to discuss his options. Certainly, bone grafts, vascularized and non-vascularized, have been performed for this condition, and certainly these need to be done before collapse. There is no guarantee with this operative procedure. Further down the line, the patient may need to have total hips performed. These are also controversial in his age group, but certainly would be the end stage procedure.
The patient was told that there is some validity in doing nothing and just being treated with crutches, but, all of these treatment modalities are unsure and do not have a high rate of success.
He seems to understand his options and will certainly discuss this with Dr. Byram.

Dr. Moss recalled that visit with Mr. Rovira and considered it unsettling because, although he had treated him in the past, Mr. Rovira had not sought treatment from him for this problem. He said they discussed bone grafts for |uavascular necrosis of the hip, the fíbula head specifically; that it was a very controversial issue and there is no good treatment for avascu-lar necrosis to the hip. Dr. Moss said,

I had mentioned to him that doing nothing is an option.... I tried to explain to him that there was not many good options for the treatment of his condition. .. .However, being as young as he was doing anything to try to prolong and taking a chance even if it was a thirty percent good result, that in itself is a good chance because of his age for him at that time rather than going straight to a total joint replacement, which would be burning all your bridges after that operation.

Reviewing all of the testimony, we conclude that Dr. Byram’s failure to inform Mr. Rovira of the low percentage of success in bone grafts is not a genuine issue of material fact. Had Mr. Rovira not tried the bone graft first, he still would have had to undergo the hip replacements due to the severe avascular necrosis of his hip joints. The bone grafts were an effort to postpone the inevitable, because total hip replacement is highly undesirable for a person of Mr. Rovira’s young age and will require numerous adjustments/replacements in the remainder of his lifespan. Under the circumstances a reasonable patient in plaintiffs condition would have consented to the procedure had the percentages of success or failure of bone grafts been disclosed.

The objective “reasonable person” standard set out by Hondroulis, supra, does not depend on a plaintiffs self-serving testimony as to what he would have decided if all of the material risks had been disclosed. Hence, we conclude the trial court did not err and summary judgment was appropriate.

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

AFFIRMED.

      . Dr. Gardner is the doctor the plaintiffs originally intended to use as their expert in this suit against Dr. Byram. Due to his discredi-tation in the other suit, plaintiff found another expert, Dr. Grelsamer. Unlike Dr. Gardner, Dr. Grelsamer found no violation of the standard of care in Dr. Byram’s performance of the surgery, only in his failure to advise the plaintiff of the percentage odds of success of bone grafting.


author: 1WILLIAMS, Judge.

text:
    Anthony LENTINI, et al., Plaintiff-Respondent, v. NORTHWEST LOUISIANA LEGAL SERVICES, INC., Defendant-Applicant.
    No. 36,620-CW.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.
    Writ Denied May 30, 2003.

      F. Drake Lee, Jr., Herschel E. Richard, Jr., Shreveport, for Applicants, James A. Vaughn & Northwest Louisiana Legal Services.
    Walter F. Clawson, Shreveport, for Respondents, Anthony & Beverly Lentini and A & B Finance, Inc.
    Billy J. Guin, Jr., for Respondent, Vive Ann Cummings.
    Charles G. Tutt, Shreveport, for Respondent, Artis Cole.
    David C. Turansky, Shreveport, for Respondent, Joan Smith.
    William D. Medlin, Shreveport, for Respondent, Denver Norris.

      Before WILLIAMS, DREW and HARRISON (Pro Tempore), JJ.
   1WILLIAMS, Judge.

The defendants, Northwest Louisiana Legal Services and James Vaughan, appeal a judgment in favor of the plaintiffs, Anthony Lentini, Beverly Lentini and A & B Finance, Inc. The district court denied the defendants’ second peremptory exception of no cause of action filed in response to the plaintiffs’ first amended petition for damages based on defamation. For the following reasons, we affirm.

FACTS

In June 1995, Anthony Lentini, Beverly Lentini and their finance company, A & B Finance, Inc., were made party defendants in a civil class action lawsuit filed in federal district court. The class action plaintiffs were represented by Northwest Louisiana Legal Services (“NLLS”) and its employee, attorney James Vaughan. The federal class action lawsuit alleged that the Len-tinis and their company had used fraudulent means to collect debts, had violated the federal Racketeer Influenced and Corrupt Organizations (“RICO”) Act and had committed mail and wire fraud. In January 1998, the federal lawsuit was voluntarily dismissed.

In September 1998, the plaintiffs, Anthony and Beverly Lentini and A & B Finance, Inc., filed a petition seeking damages for defamation against the defendants, NLLS, Vaughan and their class action clients, Vive Ann Cummings, Joan D. Smith, Denver Norris and Artis Cole. The plaintiffs’ petition alleged that the federal pleadings contained defamatory and libelous statements which accused the Lentinis and their company of engaging in criminal conduct.

^Subsequently, NLLS and Vaughan filed a peremptory exception of no cause of action, based on the qualified privilege given attorneys who make defamatory statements in the course of a judicial proceeding. Without written reasons, the district court sustained the exception and pursuant to LSA-C.C.P. art. 934, granted the plaintiffs 15 days to amend their petition to state a cause of action.

In response, the plaintiffs filed an amended petition adding an allegation that NLLS and Vaughan had filed the federal suit with the intent to cause direct harm to the plaintiffs by seeking to “break up” the finance company. The defendants filed a second exception of no cause of action, on the grounds that the amended petition failed to cure the deficiencies of the original petition. The district court overruled the exception. We granted the defendants’ application for supervisory writs and placed the matter on our appeal docket. Lentini v. Northwest Legal Services, 36,620 (La.App.2d Cir.8/22/02).

DISCUSSION

The defendants contend the district court erred in denying the exception of no cause of action. Defendants argue that the plaintiffs’ petition did not set forth allegations of fact sufficient to overcome the qualified privilege afforded to attorneys for defamatory statements made in a judicial proceeding.

In deciding whether a petition states a cause of action, the court must accept well-pleaded allegations of fact as true without reference to any extraneous supporting or controverting evidence. LSA-C.C.P. art. 931; Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127. The issue to be resolved is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. The mere conclusion of the pleader unsupported by facts does not set forth a cause of action. Montalvo, supra; Arledge v. Hendricks, 30,588 (La.App.2d Cir.6/26/98), 715 So.2d 135.

To state a cause of action for defamation, the plaintiff must allege all of the following elements: (1) defamatory words; (2) publication or communication to persons other than the one defamed; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Accusations of criminal conduct are defamatory per se, such that falsity, malice and injury are presumed and the defendant has the burden of rebutting the presumption. Kosmitis v. Bailey, 28,585 (La.App.2d Cir.12/20/96), 685 So.2d 1177.

In Louisiana, an attorney does not owe a legal duty to his client’s opponent when acting on behalf of his client. Thus, a non-client cannot hold his opponent’s attorney personally liable for malpractice or negligent breach of a professional obligation. However, an attorney may be held personally accountable for his intentionally tortious conduct. Montalvo, supra; Arledge, supra. In this state, an attorney has a qualified privilege for defamatory statements made in a judicial proceeding. Such statements must be material and made with probable cause and without malice. Freeman v. Cooper, 414 So.2d 355 (La.1982).

Louisiana jurisprudence has established specific requirements for defamation actions based upon pleadings filed by an opponent’s attorney in litigation. To state a cause of action against the attorney of an opponent, the ^plaintiffs petition must allege facts which show the attorney’s intent to cause direct harm to the plaintiff by filing the pleading. Montalvo, supra; Arledge, supra.

In the instant case, the relevant paragraphs of the plaintiffs’ petition and amended petition allege:

2.
On June 16, 1995, defendants, ... filed at the United States District Court Clerk’s Office in Shreveport, Louisiana, a class action complaint styled, “VIVE ANN CUMMINGS, JOAN D. SMITH, DENVER NORRIS, and ARTIS COLE, individually and on behalf of all others similarly situated v. BEVERLY J. LENTINI, et al,” Suit No. 95-1041 ....
5.
This pleading contained defamatory and libelous allegations that BEVERLY LENTINI, ANTHONY LENTINI and A & B FINANCE, as well as others, had conspired to commit and had committed criminal acts in connection with their attempt to collect on certain promissory notes executed by various consumers. The allegations of criminal acts contained in the pleading include allegations that BEVERLY LENTINI, ANTHONY LENTINI and A & B FINANCE had used fraudulent means to collect debts in violation of the Fair Debt Collection Practices Act, 15 U.S.C. Sec. 1692, [and] had conspired to violate and did violate the Racketeer Influenced and Corrupt Organizations Act ....
* * *
9.
The allegations made in said pleadings constitute an unwarranted, false, malicious and libelous attack on the honesty and integrity of the personal and business reputations of BEVERLY LENTI-NI and ANTHONY LENTINI, as well as

on the business reputation of defendant, A & B FINANCE, INC.

Defendants NORTHWEST LOUISIANA LEGAL SERVICES and JAMES A. VAUGHAN, at the time they filed said class action complaint against plaintiffs intended herein to cause direct harm to the plaintiffs, inasmuch as it was their motive and intention to break up A & B FINANCE, INC. which company was at all times pertinent to this matter, owned in part by ANTHONY LENTINI and BEVERLY LENTINI.

In Arledge v. Hendricks, supra, Ar-ledge’s petition alleged that his opponent’s attorney had filed a pleading with the knowledge that accusations of Arledge’s criminal conduct contained therein were false. Accepting this allegation as true for the purposes of the exception, this court concluded that Arledge’s petition sufficiently alleged an intent to cause him harm by the opposing attorney and stated a cause of action for defamation.

In their brief, defendants contend that even if Vaughan and NLLS filed the federal suit seeking to eliminate the financial viability of A & B Finance as alleged, the mere existence of such a motive, without more, does not constitute an actionable tort, since the law is not concerned with an attorney’s subjective intent in pursuit of litigation. However, contrary to the defendants’ contention, the heightened pleading standard which they invoke expressly raises the issue of an attorney’s intent to cause harm to the client’s adversary in filing a pleading.

The purpose of the exception of no cause of action is not to determine if plaintiff will ultimately prevail at trial, but to ascertain whether a cause of action exists. When reasonably possible, the court should maintain a petition against the peremptory exception of no cause of action so that the | Jitigant is afforded an opportunity to present his evidence in court. Arledge, supra.

Accepting as true the allegation that Vaughan and NLLS filed pleadings containing defamatory per se statements with the goal of injuring the economic interests of the plaintiffs, we conclude that the plaintiffs’ petition adequately alleges an intent by Vaughan and NLLS to cause direct harm to plaintiffs. Consequently, the petition states a cause of action for defamation and the district court did not err in denying the exception of no cause of action.

CONCLUSION

For the foregoing reasons, the district court’s judgment denying the exception of no cause of action is affirmed. Costs of this appeal are assessed to the appellants, Northwest Louisiana Legal Services and James Vaughan.

AFFIRMED.


author: 1COOKS, Judge.

text:
    STATE of Louisiana v. Earl Thomas GASPARD, Jr.
    No. 02-1040.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Keith W. Manuel, Marksville, LA, for Defendant/Appellant: Earl Thomas Gas-pard, Jr.
    Renee Y. Roy, Assistant District Attorney, Mansura, LA, for Appellee: State of Louisiana.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   1COOKS, Judge.

The victim, V.G., was Defendant’s eleven-year-old son. Defendant and V.G.’s mother were divorced and the mother had custody. From October 2000 until April 1, 2001, V.G. visited Defendant on weekends. During the visits, Defendant watched movies depicting nudity and sex acts in V.G.’s presence and presented him with printed material depicting scantily-clad women. Defendant told V.G. seeing or watching the nudity and sex acts in the magazines and movies “would make his [V.G.’s] penis hard.”

The State filed a bill of information against Defendant, charging him with indecent behavior with a juvenile, a violation of La.R.S. 14:81. At the close of trial, the jury found Defendant guilty of the lesser-ineluded offense of attempted indecent behavior with a juvenile. The court sentenced Defendant to three years at hard labor, suspended, with five years’ supervised probation. The court also ordered special conditions, including reporting for twenty-six alternating weekends in parish jail. The court denied Defendant’s timely Motion to Reconsider Sentence. Defendant now appeals his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

In his first assignment, Defendant argues the State’s evidence was insufficient to support his conviction. The test for such claims is well-settled:

In reviewing the sufficiency of the evidence to support a conviction, we follow the due process standard of review enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). That standard “preserves the role of the jury as the factfinder in the case but it does not allow jurors ‘to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.’” State v. Pierre, 93-0893 at p. 5 (La.2/3/94), 631 So.2d 427, 429. The jury is not allowed to engage in speculation based merely upon “guilt by association.” 93-0893 at pp. 5-6, 631 So.2d at 429. In order for the trier of fact to convict and for the reviewing court to affirm a conviction, the totality of the evidence must exclude reasonable doubt.
Under Jackson, all evidence, both direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. See State v. Jacobs, 504 So.2d 817, 820 (La.1987). When circumstantial evidence forms the basis of the conviction, the totality of such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. However, “Mypotheses of innocence are merely methods for the trier of fact to determine the existence of a reasonable doubt arising from the evidence or lack of evidence.” State v. Shapiro, 431 So.2d 372, 389 (La.1982)(on reh’g)(Lemmon, J., concurring). This circumstantial evidence rule is not a separate test from the Jackson standard; rather, La. R.S. 15:438 merely “provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found defendant guilty beyond a reasonable doubt.” State v. Wright, 445 So.2d 1198, 1201 (La.1984). “Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.” State v. Chism, 436 So.2d 464, 470 (La.1983).

State v. Bridgewater, 00-1529, pp. 8-9 (La.1/15/02), 823 So.2d 877, 889, modified on rehearing, 00-1529 (La.6/21/02), 823 So.2d at 909, rehearing denied, 00-1529 (La.8/30/02).

Thus, the State must prove the elements of a crime beyond a reasonable doubt, to support a conviction for said crime. Offenses generally have an act element and an intent element, as explained in La.R.S. 14:8(1):

Criminal conduct consists of:

An act or a failure to act that produces criminal consequences, and which is combined with criminal intent.

Defendant in the present case was convicted of attempted indecent behavior with a juvenile. Attempt is defined in La.R.S. 14:27, which states, in pertinent part:

|3A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

Indecent behavior with a juvenile is defined in La.R.S. 14:81(A):

Indecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.

The State was required to prove beyond a reasonable doubt that Defendant specifically intended to commit a lewd and lascivious act upon the person of, or in the presence of V.G., and did an act in furtherance thereof.

On appeal, Defendant attacks the credibility of the State’s witnesses, arguing the accusations against him stem from conflicts regarding his divorce from V.G.’s mother. More significantly, he argues the evidence does not prove he committed a proscribed “act” within the meaning of the statutes at issue.

In its brief, the State summarizes its case:

In the present cases, the defendant was found guilty of Attempted Indecent Behavior with a Juvenile. The state contends that the evidence produced at trial does support the finding of Attempted Indecent Behavior with a Juvenile by showing that the accused, a 35 year old man, committed lewd and lascivious acts in the presence of the minor child, an 11 year old child, by showing him explicit pornographic movies and pornographic photos, and that the accused intended to arouse and gratify either his own or the victim’s sexual desires, by telling the victim that it would make his penis hard.

We note the language of the bill of information and the bill of particulars was very similar, as was the State’s closing argument. Apparently, this scenario was the ^State’s theory of the case. Further, it was supported by V.G., the only State witness who gave direct evidence.

V.G. testified he visited Defendant on weekends between October 2000 and April 2001. During those visits, Defendant would rent movies depicting nudity and people engaged in sexual foreplay. According to V.G., his father told him the movies “would make your penis hard,” and told the boy he had to watch them. V.G. testified he did not want to watch the movies.

In court, he identified videotapes that Defendant had played: “Playmate Calendar,” “The Best of College Girls,” and “Girls Out of Control.” These were introduced into evidence, and viewed by the jury. V.G. also testified Defendant showed him a magazine called “Hottest Nudes,” and weight-lifting magazines depicting women in bikinis. Defendant also gave him a computer-generated sheet with pictures of semi-nude women. Defendant put it in the boy’s travel bag to take home. The sheet of pictures was introduced into evidence. Subsequently, Defendant introduced a pro-wrestling magazine that depicted women in bikinis.

The only other witness who provided direct evidence regarding the events at issue was Defendant, who denied that V.G. ever saw the tapes, or that he rented them for V.G. He did admit the tapes were in the house on weekends when V.G. was with him.

At this point in the Jackson analysis, there is a clear problem in the State’s case. The only acts the State relies on in proving the crime charged consisted of Defendant’s showing movies and printed materials to V.G. Nothing in the record indicates Defendant touched, or tried to touch, the boy or himself. There is no suggestion of nudity or physical exposure of any kind by either of them. The evidence does not show Defendant suggested they should engage in any sexual acts. 15As already mentioned, the State relied upon the act of showing the movies in its trial argument, and repeats it on appeal.

In State v. Louviere, 602 So.2d 1042 (La.App. 4 Cir.1992), writ denied, 610 So.2d 796 (La.1993), also an attempted indecent behavior case, the court explained:

The only act alleged was the attempted “french kiss” of the two young victims. To determine whether the trier of fact rationally concluded that this act was “lewd or lascivious,” or an act tending directly toward a lewd or lascivious act, we must first consider how these terms are defined. According to a recent decision of this court,
[a] lewd or lascivious act is one which tends to excite lust and to deprave the morals with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in a wanton manner.
State v. Rollins, 581 So.2d 379, 382 (La.App. 4th Cir.1991) (citing State v. Holstead, 354 So.2d 493 (La.1977); State v. Prejean, 216 La. 1072, 45 So.2d 627 (1950).) In State v. Saibold, 213 La. 415, 34 So.2d 909, 911 (La.1948), the Louisiana Supreme Court, in concluding that the meaning of the terms was sufficiently clear when used together, stated that lewd or lascivious behavior “connotes actions or gestures of a lustful and lecherous nature.” Furthermore, “to settle any possible doubt,” that court directed attention to the Reporter’s Comment to § 14:81, which specifies that the purpose of this section prohibiting indecent behavior with a juvenile is to prohibit behavior that falls short of sexual intercourse carried on with young children as well as indecent sexual displays in their presence.
In addition, a review of reported cases of prosecutions under § 14:81 is illustrative of the type of conduct intended to be proscribed. Indecent behavior with a juvenile in which kissing has occurred has uniformly involved more. In State v. Boutte, 384 So.2d 773 (La.1980), the defendant was alleged to have stuck his tongue into the mouth of a four (4) year old neighbor. In addition, however, he removed the child’s clothing, laid on top of her, and rubbed her genitals. While the defendant in State v. Jacob, 461 So.2d 633 (La.App. 1st Cir.1984), did repeatedly kiss a thirteen (13) year old boy, he also pulled the boy on top of him in bed and fondled him during an overnight stay. And, this court found indecent behavior with a juvenile to have occurred when the defendant french kissed two young boys and also indulged in inappropriate body contact, all over a protracted period. State v. Rollins, 581 So.2d 379 (La.App. 4th Cir.1991). It appears then that a kiss is proscribed behavior under § 14:81 when it is repeated or accompanied by other acts that seem more likely to excite lust and to deprave morals, generally genital contact.
Uln view of the definition, the stated purpose of the criminal statute, and our review of prior jurisprudence involving the statute, it would be difficult for the rational trier of fact to conclude that the testimony concerning a “bad kiss” proved the occurrence of a lewd and lascivious act. Furthermore, there was no indication that any other action was planned which, together with the kiss, would bring Louviere’s conduct within the ambit of the statutory prohibition. Without genital contact or any other obscene or indecent act or repeated occurrence, these kisses fall short of the statutory and judicial requirements of the crime.

Id. at 1044-1045.

The court reversed the defendant’s conviction.

We recognize Louviere is not on all fours with the present case. In Louviere, there was an “act,” but one that was not “lewd and lascivious.” In this case, we find the conduct at issue does not even qualify as an “act” contemplated by the statute. However, assuming it was such an “act,” Defendant’s watching or showing the videos to his son was clearly not “lewd and lascivious” under Louviere. Further, as required by La.R.S. 14:81, there was no evidence Defendant did anything “upon the person” of V.G. and Defendant did not participate in any lewd acts “in the presence of’ V.G. Arguably, the actions depicted on the videos were “lewd and lascivious,” but Defendant was not a participant in those actions.

Considering the discussion and the result in Louviere, it seems clear that the conduct at issue falls short of the conduct deemed criminal in La.R.S. 14:81. If “french kissing” does not qualify as attempted indecent behavior with a juvenile, we cannot say watching sexually-explicit videos qualifies. Regardless of how distasteful and morally debased Defendant’s conduct was, the statute he was charged with violating required certain elements which are not present in this case. While the criminal code provides other offenses which may fit the acts of the Defendant herein, we are unable to speculate on those and must find him not guilty of the crime [7charged.

For the reasons expressed, we find the evidence adduced by the State, viewed in the light most favorable to the prosecution, does not satisfy the elements of La.R.S. 14:27 and 14:81. Pursuant to Jackson, Defendant’s conviction and sentence are vacated and set aside. This renders Defendant’s second assignment of error moot.

CONCLUSION

For the foregoing reasons, Defendant’s conviction and sentence for attempted indecent behavior with a juvenile are vacated and set aside.

CONVICTION AND SENTENCE VACATED.

      . The original hearing and the rehearing were published together. The rehearing, which appears at page 909, used the same basic Jackson analysis, although it reached a different result.


author: 1GREMILLION, Judge.

text:
    Gregory K. HORNAGE v. Poston WHITE, et al.
    No. 02-1117.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 2003.

      Howard N. Nugent, Jr., Esq., Nugent Law Firm, Alexandria, LA, for Plaintiff/Appellee, Gregory K. Homage.
    Keith Michael Borne, Borne, Wilkes & Brady, Lafayette, LA, for Defendants/Appellants, Safeway Ins. Co. of Louisiana, Poston White.
    Madeline Lee, Bolen, Parker, & Brenner, LTD, Alexandria, LA, for Defendant/Appellant, Allstate Ins. Co., Herman Williams.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   1GREMILLION, Judge.

The defendants, Poston White and Safeway Insurance Company, and Allstate Insurance Company, appeal the judgment rendered in favor of the plaintiff, Gregory K. Homage. For the following reasons, we reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Homage, a passenger in a Toyota pickup owned by Herman Williams and insured by Allstate, filed suit for injuries he suffered arising out of a June 1999 accident with an Oldsmobile Cutlass driven by Poston White, that was owned by David Roy and insured by Safeway. The accident occurred in the employee parking lot of Doane Products Company. Following a bench trial in May 2002, the trial court found that Williams and White shared equal responsibility for the accident. It further found that Homage was without fault as he was a guest passenger, and awarded him $50,000 in general damages. Allstate, White, and Safeway timely appealed to this court.

ISSUES

Allstate, White, and Safeway assign as error:

1. The trial court’s finding that White was fifty percent at fault.
2. The trial court’s award of $50,000 to Homage when there was no causal connection between Homage’s medical condition and the accident.

DISCUSSION

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Id. at 844.

Though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973). “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993).

The trial court did not assign written reasons for judgment, although at the end of the trial it stated:

The court finds that there was an accident in the parking lot of a local company by two employees during the beginning of the lunch period. The court notes that the testimony reveals that each driver failed to notice the other vehicle in time to avoid the collision as it was not until the vehicles had collided that the parties realized that the other was in that area. No horns were blown by either party. With this in mind, along with the eagerness of employees to make the most of their lunch period, the court notes that it compares this period of time during the day for most places as a quiet stampede. All right, be that as it may, the court finds that Herman Williams is 50% at fault in causing this accident and that Poston White is 50% at fault also in causing this accident. The passenger, Gregory Hor-nage, is without fault as he was a guest passenger and as such is entitled to recover general damages, and this | ¡¡court awards Mr. Homage a general damage award of $50,000 plus interest on all sums, all costs of court. Further, defendants are given credit for any amounts they’ve already paid. All right.

FAULT ALLOCATION

The trial court assigned White with fifty percent of the fault in causing this accident. The Defendants urge that it was unrefuted that White was at a complete stop when Williams backed his vehicle into him. Homage argues at length regarding the duty of a driver who is backing up his motor vehicle, citing Francis v. Commercial Union Insurance Co., 90-751 (La.App. 3 Cir. 2/12/92), 594 So.2d 1025. Based on our review of the record, we find it was manifestly erroneous for the trial court to assign White fifty percent of the fault in causing this accident. White had safely backed up his vehicle and was at a complete stop when he was hit by the vehicle driven by Williams.

White testified that he successfully backed Roy’s vehicle out of the parking spot, came to a stop, and was in the process of changing gears from reverse to drive when he was impacted by Williams’ vehicle. He stated that, before completing this maneuver, he looked behind the vehicle to make sure no one else was moving. This action placed the Roy vehicle perpendicular to the Williams vehicle; however, White testified that the only portion of the Roy vehicle that was directly behind the Williams vehicle was the front bumper, no deeper than to the front tires. White stated that the rear-passenger bumper of the Williams vehicle impacted the right front fender of the Roy vehicle.

Williams testified that after he and Hor-nage got into his track, he looked into his rearview mirror and then over his right shoulder, but did not see the Roy Lvehiele. He proceeded to back up, and stopped when he impacted the Roy vehicle. He stated that the Roy vehicle was six to eight inches into his lane and that he could not see the vehicle because of a Lincoln Continental that was situated between his truck and the Roy vehicle. He also said that he could not see out of the right side mirror because Homage was in the process of putting on his seatbelt and was blocking his view of the mirror. Williams further stated that he “probably” would have been able to see the Roy vehicle in the right side mirror if his vision had not been obstructed by Homage. In a previous deposition in which he had described the accident, Williams stated:

As I proceeded to release the clutch and move backwards, I could hear, ‘whoa, whoa, whoa,’ and when I looked over my shoulder, I looked in David Roy’s face, and at that point is when I made contact with his car.

However, at trial he denied making these statements.

Mark Lucas, the warehouse supervisor at Doane Products Company, witnessed the accident. He stated that he was around fifteen feet from the accident and observed that the Roy vehicle was at a complete stop when it was impacted by the Williams vehicle. He did state that prior to the impact, he heard Roy “hollering” at Williams in order to get his attention.

Roy also testified that his vehicle was completely stopped when the Williams vehicle impacted it. He stated that White was in the process of shifting from reverse to drive at the time of the impact.

In Francis, 594 So.2d at 1026, we addressed the duty of a backing motorist as found in La.R.S. 32:281(A), and stated:

La.R.S. 32:281(A) provides that “[t]he driver of a vehicle shall not back the same unless such movement can be made with reasonable | ^safety and without interfering with other traffic”. In Turner v. New Orleans Public Service Inc., 476 So.2d 800, 802 (La.1985), the Louisiana Supreme Court, in citing the above quoted statute, stated the rule that “backing [a vehicle] without knowing whether it can be safely done is grossly negligent”. This principle has been followed by the Courts of Appeal in subsequent cases such as Andrews v. Mosley Well Service, 514 So.2d 491 (La.App. 3 Cir.1987), writ denied, 515 So.2d 807 (La.1987); Ward v. Schwegmann Giant Super Markets, Inc., 538 So.2d 1051 (La.App. 4 Cir.1989). The driver of a backing vehicle has a high duty of care to determine whether it can be done safely. Andrews, supra, at 496. Although the accident in question occurred on private premises, the general principles above set forth are applicable in determining the issue of negligence.

It is clear from our review of the record that White had successfully completed his backing maneuver and was in the process of switching gears to drive in order to exit the parking lot. There was no evidence to indicate otherwise. In this stopped position, White was hit by Williams vehicle, who was grossly negligent in failing take note of the Roy vehicle. Further, Williams admitted that he probably would have seen the Roy vehicle if Homage had not been blocking his view of the right rear mirror.

The trial court made mention of the failure of both parties to blow their horns. We find no such duty existed. Moreover, if every backing motorist blew their horn to indicate their actions, we believe that more accidents would result. In Francis, the employees in the service areas of an automobile dealership were required to honk their horns to alert others that they were moving around the garage. Such is not the case here. We find it was manifestly erroneous for the trial court to find that both parties were negligent for failing to blow their horns.

Finally, the trial court made mention of a “stampede” to get out of the parking lot during the lunch hour. No such evidence existed in the record to support |fithis finding. In fact, the evidence suggested that around eight to ten employees left the parking lot to go to local establishments that were within a mile from the plant. No one testified that everyone left in a “rushed” pace. We find this conclusion manifestly erroneous.

Homage further argues that the trial court did not commit manifest error in assigning White fifty percent of the fault because White put the Roy vehicle in a “position of peril.” Homage cites Ward v. Schwegmann Giant Super Markets, Inc., 538 So.2d 1051 (La.App. 4 Cir.1989), for this proposition. We disagree. The facts of that case are distinguishable from the ones in this instance. In Ward, the plaintiff watched as the defendant’s employee backed up the eighteen-wheeler he was driving. However, the plaintiff proceeded to maneuver his vehicle in a position directly behind the truck and then stop. The court held, “Because [the plaintiff] had placed his vehicle in a position of peril and should have been aware to some extent that the truck was backing in a dangerous position, the trial court found that [the plaintiff] was one-third comparatively negligent.” Id. at 1052. The court of appeal affirmed the judgment of the trial court. White did not back the Roy vehicle into a position of peril. He completed his backing maneuver and was waiting his turn to exit the parking lot. The duty was upon Williams to successfully back out of his parking spot once he had surmised that it was safe to do so.

Based on our review of the record, we find the trial court manifestly erred in assigning White fifty percent of the liability. We, therefore, reverse that portion of the judgment and find that Williams bears one hundred percent of the liability in causing this accident.

^DAMAGES

The trial court awarded Homage $50,000 in general damages. Because of our finding above, only Allstate appeals the general damage award. The trial court’s findings are accorded great weight when reviewing a general damage award and should rarely be disturbed absent a showing of clear abuse of discretion. Andrus v. State Farm Mut. Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206. Thus, we must determine whether the trial court’s award “is, in either direction beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances” before we may adjust the award. Id. at 1210.

Allstate urges that there was no evidence in the record to suggest that Hor-nage’s surgery was in any way causally connected to the accident. It is true that the only evidence offered was Homage’s own testimony that the surgery was performed due to neck pain that developed as a result of this accident. While it is true that a plaintiffs unrefuted testimony should be accepted as true, it will not be if circumstances exist that cast suspicion on the reliability of his testimony. See Guillory v. International Harvester Co., Inc., 99-593 (La.App. 3 Cir. 10/13/99), 745 So.2d 733, writ denied, 99-3237 (La.1/14/00), 753 So.2d 220.

Williams testified as to the minimal damage to his vehicle and stated that he did not suffer any injuries from the accident. He also stated that he and Homage went to lunch following the accident, but that Homage later stated his neck was hurting.

IsMark Lucas stated that there was no change in Homage’s work habits or duties following the accident and that his position included operating a forklift and lifting forty-four pound bags of dog food.

Roy also testified that Homage’s work performance following the accident was the same. Roy also described witnessing an accident, following the one in question, in which Homage was “slammed” into a pallet of dog food in his head and neck area.

Regina Lewis, Homage’s fiancé, testified that she accompanied him to the Rap-ides Regional emergency room on the day of the accident in question. She stated that, prior to this ear accident, Homage had never had any injuries to his neck or pain in that area. She stated that Hor-nage began experiencing pain related to the car accident about a month after it happened.

Homage testified that, following the accident, he sat in the truck for several minutes because he had been “slammed to the crown of the window of the door.” He stated that he decided to go to the emergency room because his muscles were hurting, and began seeing a chiropractor, Dr. Boisvert, following the accident. Dr. Boisvert’s records indicate that Homage saw him three to four times over a six-week period following the accident, and once in November 1999. The medical records reveal that Homage had an MRI in February 2000. In March 2000, Homage began treatment with Dr. John Jackson, a neurosurgeon, who recommended surgery. Homage underwent an anterior cervical fusion with removal of a ruptured disc in April 2000.

| flHornage denied any accident involving the forklift. In deposition testimony, he stated that, following the June 1999 accident, he was in a fight with his fiancé’s son that resulted in him having a black eye, scratches, and bruises to his face. However, at trial, he denied having a black eye and bruises on his face.

While it is true that Homage contradicted himself at trial and there appears to be some intervening incidents that may have contributed to his neck problems, we are weary of disturbing the trial court’s wide discretion in this area. Although the trial court did not provide any reasons in its ruling, it apparently found Homage’s testimony credible. A reasonable person could have credited Homage’s version of events, and thus, we will not disturb this finding on review. Moreover, we do not find the award of $50,000, to be beyond that which a reasonable person would assess for this particular injury to Homage. This assignment is without merit.

CONCLUSION

The judgment of the trial court assigning the defendant-appellant, Poston White, fifty percent of the fault in causing this accident is reversed. Herman Williams is assigned with one hundred percent of the fault in causing this accident. The damage award in favor of the plaintiff-appellee, Gregory Homage, is affirmed. Costs of this appeal are to be assessed equally among the parties.

AFFIRMED IN PART AND REVERSED IN PART.

      . Allstate is appealing in its capacity as the uninsured motorist insurer for Williams.