author: | .CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Cesar ROCA, Sr. a/k/a Cesar Balari.
    No. 03-KA-1076.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2004.

      Paul D. Connick, Jr., District Attorney, Juliet Clark, Terry M. Boudreaux, David Wolfe, Thomas Block, Assistant District Attorneys, Gretna, LA, for State.
    Prentice L. White, Baton Rouge', LA, for defendant-appellant.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHÉHARDY and CLARENCE E. McMANUS.
   | .CLARENCE E. McMANUS, Judge.

Defendant, Cesar Roca, Sr. a/k/a Cesar Balari, appeals his conviction and sentence on two violations of La. R.S. 14:42 (aggravated rape and aggravated rape of a juvenile), a violation of La. R.S. 14:43.4 (oral sexual battery of a juvenile) and a violation of La. R.S. 14:81.2 (molestation of a juvenile). For the following reasons, we affirm his conviction and sentence and remand this matter for further proceedings.

STATEMENT OF THE CASE AND FACTS

■ E.B. was fifteen years old at the time of trial and was born on December 28, 1986 in Sonora, Mexico but later moved to San Diego, California when she was two years old. E.B. first met defendant when she was five years old after defendant and her mother developed a relationship while in San Diego. Later E.B. and her mother moved with defendant from San Diego to Kenner, Louisiana. At |3that time, E.B. thought of defendant as a father and referred to him as “papa.” After moving to Kenner, E.B.’s mother worked various housekeeping jobs and, as a result, a babysitter took care of her. After a period of time, defendant undertook the responsibility of caring for E.B. while her mother was working .because he worked at the same building in which they lived.

E.B. stated that her relationship with defendant was initially, good but that it later changed. When she was six or seven years old, she recalled an incident when she watched television in defendant’s room and played “horsey” with him. When E.B. fell off of defendant’s back, defendant exposed ' his penis and told her, “Don’t be scared. I’m going to teach you.” She got scared and ran out of the room. Shortly after that incident, defendant began touching her vagina and chest on numerous occasions. Defendant inserted his fingers into her vagina initially not using lubricant but later put something from a glass jar on his fingers. She recalled experiencing a small amount of vaginal bleeding and pain when she urinated. E.B. stated that defendant made her touch his penis with her hand and mouth on several occasions.

E.B. also said that, when she was eight or nine, years of age, defendant for the first time put his penis inside of her vagina. E.B. remembered on another occasion while watching television that defendant came into the room and told her he was “going to teach her about it.” Defendant proceeded to take off her clothes and put his penis inside her vagina. E.B. stated that it hurt very badly and that she was crying. Defendant told her that she should not cry because the neighbors might hear her. Defendant also told her that she should not tell anyone about what happened because no one would believe her and that everyone would leave her. E.B. related defendant continued to have sexual intercourse with her until she was thirteen years old. During that period of time, defendant would have sex with her in both the house and in his office. When having sex with her in the office, |4defendant would put a closed sign in the window to prevent people from entering. E.B. noted that defendant told her that having sex with him would teach her a lot about life and that it was her duty to obey him.

She also recounted one occasion when after she and defendant watched a show about animals on television, defendant wanted to show her how animals did it on the back. He then took off her pants and put his penis in her “butt.” E.B. testified that it hurt very badly.

Upon taking sex education in school and learning about incest, E.B. felt bad about herself. That same day, she went home and began defacing photographs of herself because she felt so dirty. Defendant discovered what she did to the photographs and was very angry. Later that evening, defendant came into her room and asked her if she was going to do her duties she responded “no.” E.B. testified that she began to cry and later that evening told her mother what defendant did to her.

A few days after telling her mother, E.B. and her mother flew to California to stay with an aunt. While there, E.B. was examined by a gynecologist whom she told about the continuous molestation. E.B. also told police officers in California and eventually Detective Larry Dyess of the Jefferson Parish Sheriffs Office what defendant did to her.

Defendant’s daughter, Gisela Chevalier, stated that she was originally born in Havana, Cuba and that she did not meet her father until she was thirty years old. She came to the United States after her father filed a petition with the United States government to have her brought to the country as a child of a U.S. citizen. Upon arriving in the United States, she lived with defendant, his wife, daughter, D.R., and youngest son, Robert Roca, at their Kenner home. Chevalier related that, pri- or to moving to the United States, she heard rumors of sexual misconduct involving defendant and D.R. While living in the Kenner home, defendant addressed the | Brumors by stating that he had a consensual sexual relationship with D.R. when she was fourteen years old. Shortly thereafter, Chevalier moved out of defendant’s home without reporting the incident to police. In the summer of 1992, defendant returned to Kenner with C.B. and E.B. and moved into an apartment across the street from her. Chevalier stated that she developed a close relationship with C.B. and E.B. but in 1994 lost contact with them due to a business dispute with her father. However, in February of 2001 C.B. asked her to contact the Jefferson Parish Sheriffs Office concerning the allegations against defendant. Chevalier subsequently spoke to Detective Larry Dyess and informed him that defendant told her he had a consensual sexual relationship with her half-sister, D.R.

Detective Larry Dyess of the Personal Violence Unit of the Jefferson Parish Sheriffs Office followed up an investigation conducted by detectives in California. He interviewed E.B. and reviewed the California reports and obtained a warrant for defendant’s arrest. Defendant denied any inappropriate activity with E.B. Detective Dyess was contacted by Chevalier who informed him of a second victim, D.R. Detective Dyess met with D.R. who told him that she was sexually assaulted by defendant when she was a child. Thereafter, Detective Dyess booked defendant on the additional charge.

On May 3, 2001, a Jefferson Parish Grand Jury indicted defendant, Cesar Roca, Sr., a/k/a Cesar Balari, on count one, aggravated rape in violation of La. R.S. 14:42; count two, aggravated rape upon a known juvenile under the age of twelve in violation of La. R.S. 14:42; count three, aggravated oral sexual battery upon a known juvenile in violation of La. R.S. 14:43.4; and count four, molestation of a juvenile in violation of La. R.S. 14:81.2. On May 8, 2001, defendant was arraigned and pled not guilty to the charges.

Thereafter, defendant filed several pretrial motions including a motion to sever count one of the indictment. Defendant’s motion to sever was heard and | (¡denied -on July 8, 2002. Additionally, the State’s previously filed Notice of Intent to Use Evidence of Other Bad Acts to Show Knowledge, System and Intent was heard and granted. On July 9, 2002, the State’s motion to introduce other crimes evidence was re-opened and once again granted by the trial court. That same day, defendant proceeded to trial.

E.B. and D.R., defendant’s biological daughter, testified at trial. D.R. related that she was born in Mexico City, Mexico and moved to Kenner with her family when she was eight or nine years old. At the age of twelve or thirteen, she returned to Mexico along with her mother and three of her brothers in order to resolve problems with her “papers.” She eventually returned to Kenner when she was approximately fourteen years old. Thereafter, the relationship with defendant changed. On one occasion, D.R. asked defendant for advice on how to talk to boys and get their attention. Defendant began kissing her using his tongue and fondling her, saying that he would be her instructor in such matters. D.R. recalled a later incident where defendant was teaching her how to drive when he turned down a dead end street, unzipped his pants, took out his penis, and told her to masturbate him. D.R. testified she did not want to do it but she felt intimidated by her father.

D.R. also testified about the first time defendant raped her. Defendant took her into his bedroom, pushed her down on the bed and held her hands over her head as he had sex. with her. She asked him to stop. He did not. It felt like someone was stabbing her. She attempted to resist him but defendant overpowered her. Defendant told her to relax and she would enjoy it.

D.R. noted another incident where defendant raped her in Orleans Parish. She and defendant worked together at a gas station that he managed. Defendant sent an employee home so they- would be alone in the building. She consumed a bottle of aspirin in an attempt to commit suicide. Defendant noticed what she had done, took her to the bathroom outside, and stuck his fingers down her throat to |7cause her to vomit. Defendant proceeded to have sexual intercourse with her on the bathroom floor. D.R. eventually disclosed to her mother what defendant was doing to her. D.R.’s mother confronted defendant and defendant made a promise to D.R. that he would never do it again. D.R. testified the incident was never reported to police in order to protect the family name and her brothers who were establishing careers.

Dr. Scott Benton testified as an expert in the field of forensic pediatrics and general pediatrics. Dr. Benton related that he had reviewed the records of the gynecological exam performed on E.B. on August 3, 2000 in California and noted that no abnormal or unusual findings were discovered during the examination. However, he noted that he would not expect to find any physical signs of a forced sexual encounter if the child had been abused six weeks prior to the examination.

Defendant, Cesar Roca, testified on his own behalf and denied abusing D.R. or E.B. He stated that he was seldom alone with the victims. He noted that he was never alone with D.R. in the gas station and that D.R.’s mother rode in the back seat when he taught her to drive. He opined that C.B. and E.B. were making accusations against him for financial purposes. Defendant claimed that C.B. tried to extort money from him before she went to California. C.B. was allegedly angry with him because his daughter, Gisela Chevalier, told her that he was having a relationship with another woman. Defendant believed D.R. made the accusations against him because she was angry that he was going to Cuba to marry another woman.

After conclusion of the three-day trial, a twelve-person jury returned a verdict of guilty as charged as to all counts. On August 6, 2002, defendant filed a motion for new trial which was heard and denied. After waiving delays, defendant was sentenced to consecutive sentences of life imprisonment at hard labor on counts one and two of the indictment. Defendant was also sentenced to twenty |syears of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, to run concurrently with the sentence imposed on count two and consecutively with the sentence imposed on count one. As to count four, defendant was sentenced to fifteen years at hard labor with the first five years of the sentence to be served without benefit of parole, probation, or suspension of sentence to run concurrently to the sentences on counts two and three and consecutively to the sentence on count one. Thereafter, defendant filed a motion to reconsider sentence, which was heard and denied on August 12, 2002. This appeal followed.

DISCUSSION

Defendant contends that the district court improperly allowed the State to join count one with counts two through four when the alleged crimes did not involve the same victims, did not occur within the same time frame, and did not take place in the same manner. Defendant also argues that the joinder of these offenses lowered the State’s burden of proof by allowing the State to use a twenty-year-old rape allegation to substantiate a recent rape charge against him and that joinder confused the jury as evidenced by the trial court’s need to “cut and paste” jury instructions. The State responded that severance was not required, as the acts were of the same or similar character, and the testimony was presented in a logical and concise fashion. Additionally, the evidence of the crime against D.R. would have been admissible as other crimes evidence at the trial of the offenses against E.B.

La.C.Cr.P. art. 493 governs the joinder of offenses and provides as follows:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by 19the same mode of trial.

In the present case, although the crimes were perpetrated upon different victims and at different times, they occurred under similar circumstances. Defendant, the biological father of D.R. and the live-in boyfriend of E.B.’s mother, under the guise of educating his daughters about boys and sex, began an inappropriate relationship with both victims, which culminated in defendant having non-consensual sexual intercourse with the victims. Consequently, the crimes appear to be of the same or similar character as contemplated by La.C.Cr.P. articles 493 and 493.2, and were, therefore, properly charged in the same bill of information. Defendant nevertheless contends that count one should have been severed to prevent prejudice.

La.C.Cr.P. art. 495.1 provides for severance of joined offenses, and states:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

A defendant has a substantial burden of proof when he alleges prejudicial joinder of offenses. State v. Machon, 410 So.2d 1065 (La.1982); State v. Every, 96-185 (La.App. 5 Cir. 7/30/96), 678 So.2d 952, 958. Motions to sever under La. C.Cr.P. art. 495.1 are left to the sound discretion of the trial court and should not be disturbed on appeal in the absence of an abuse of discretion. State v. Celestine, 452 So.2d 676 (La.1984); State v. Every, supra at 958.

In determining whether prejudice may result from a joinder of offenses, a trial court should consider whether the jury would be confused by the various counts, whether the jury would be able to segregate the various charges and evidence, whether the defendant would be confounded in presenting his various defenses, whether the crimes charged would be used by the jury to infer a criminal disposition, and whether, considering the nature of the charges, the charging of Imseveral crimes would make the jury hostile. State v. Washington, 386 So.2d 1368 (La.1980); State v. Every, supra at 958.

■ -In the instant case,-the State presented its case in a logical fashion and in such a manner as to keep the evidence pertaining to each count and each victim separate and distinct. The investigation of the offenses was significantly intertwined as the officers learned of the rape of D.R. while investigating the allegations involving E.B. Further, it appears the jury was clearly able to segregate the various counts as the trial court specifically charged the jury separately as to each offense and corresponding victim.

Additionally, when determining whether two charged offenses should be severed for trial, the trial court may consider whether evidence of one offense would have been admissible as other crimes evidence at the trial of the other offense under State v. Prieur, 277 So.2d 126 (La.1973) and La. C.E. art. 404(B)(1). State v. Lewis, 97-2854 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004, 1015, writs denied, 99-2694 (La.4/17/00), 756 So.2d 325 and 01-3348 (La.2/1/02), 808 So.2d 345. La. C.E. art. 412.2 also provides for the admissibility of other crimes evidence and sets forth in pertinent part as follows:

.When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another sexual offense may be admissible and may be considered for its bearing on any matter which is relevant subject to the balancing test provided in Article 408.

In the present case, the evidence of each offense is relevant to establish defendant’s propensity to sexually abuse young females under his supervision and care. Although defendant argues that lapse in time of twenty years between the offenses was unduly prejudicial, La. C.E. art. 412.2 does not set forth any time restrictions for the admission of the other sexual crimes evidence. Therefore, the evidence of the offense committed against either victim could have been | nintroduced at the trial of the crimes committed against the other. Thus, the trial court did not abuse its discretion in denying defendant’s motion to sever.

Defendant next contends there was insufficient evidence to support his conviction based on the lack of medical evidence to conclusively show he raped or sexually assaulted D.R. or E.B. Defendant further argues there were no eyewitnesses to corroborate the victims’ stories and the only testimony the State used to support the allegations came from individuals who wish to punish him.

The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). It is not the function of an appellate court to assess credibility or reweigh the evidence. Appellate review for minimal constitutional sufficiency of evidence is a limited one restricted by the standard developed in Jackson. State v. Rosiere, 488 So.2d 965, 968 (La.1986) and the cases cited therein.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Stec, 99-633, p. 4 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In the case of sexual offenses, the testimony of the victim alone can be sufficient to establish the elements of a sexual | ^offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Hotoph, 99-243, p. 17 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and 765 So.2d 1066.

In the present case, defendant was convicted of having committed two counts of aggravated rape, one count of oral sexual battery, and one count of molestation of a juvenile. La. R.S. 14:42 defines aggravated rape, in pertinent part, as follows:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats or great and immediate bodily harm, accompanied by apparent power of execution.
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

LSA-R.S. 14:43.4 defines aggravated oral sexual battery, in pertinent part, as follows:

A. Aggravated oral sexual battery is an oral sexual battery committed when the intentional touching of the genitals or anus of one person and the mouth or tongue of another is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

The offense of molestation of a juvenile is defined in La. R.S. 14:81.2, which provides in part:

11SA. Molestation of a juvenile is the commission by anyone over the age of seventeen 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, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

In this case, D.R. testified that defendant began sexually abusing her by fondling and forcing her to masturbate him when she was fourteen years old. Defendant’s actions ultimately led to sexual intercourse when defendant raped her for the first time when she was fourteen or fifteen years old. D.R. recounted that defendant pushed her down on the bed and while holding her hands over her head, inserted his penis into her vagina. D.R. testified she asked defendant to stop and attempted to resist but - defendant overpowered her. In reference to counts two through four, E.B. testified defendant began sexually molesting her when she was six or seven years of age. E.B. recalled going into defendant’s bedroom to watch television and, while in the bedroom, defendant exposed his penis. Although E.B. could not recall the exact dates, she testified that, at a later date, defendant began touching her vagina and chest. Defendant also penetrated her vagina with his fingers on numerous occasions, and she was made to touch his penis.

When E.B. was approximately eight or nine years old, defendant first had sexual intercourse with her. E.B. testified that she was watching television, as usual, when defendant came into the room and told her he was going to “teach her about it.” Defendant proceeded to take off her clothes and put his penis inside of her vagina. According to E.B.’s testimony, defendant continued to have sexual intercourse with her for several years including one occasion where defendant penetrated her anally. E.B. also testified that, when she was nine or ten, defendant touched her vagina with his mouth and she was made to touch his penis with her mouth.

luWhile defendant asserts there was no medical evidence to support that D.R. or E.B. was sexually assaulted, Dr. Benton testified he would not expect any physical signs of abuse if the child was last abused six weeks prior to the medical examination of the child. Additionally, defendant contends there was no corroborating evidence to support the victims’ claims; however, D.R.’s testimony was substantially corroborated by Gisela Chevalier and Regina Ul-loa, defendant’s sister, who both testified defendant admitted to them that he had a sexual relationship with D.R. when she was fourteen. Accordingly, viewing the evidence in a light most favorable to the prosecution, we find that a rational trier-of-fact could have concluded beyond a reasonable doubt that defendant was guilty of the charged offenses.

Defendant next argues that the trial court failed to rule on his motion to reconsider sentence and, as a result, he is barred from raising errors relative to his sentence on appeal. However, the minute entry dated August 12, 2002 reflects defendant’s motion to reconsider was heard and denied. A supplement to the record was filed October 24, 2003 and reveals a ruling denying defendant’s motion to reconsider sentence on August 12, 2002. Although defendant has assigned as error the exces-siveness of his sentence, he has failed to brief this assignment of error. Thus, this assignment of error is abandoned. See, Rule 2-12.4 of the Uniform Rules, Courts of Appeal and State v. Bell, 00-1084 (La.App. 5 Cir. 2/28/01), 781 So.2d 843, writ denied, 01-0776 (La.4/26/02), 813 So.2d 1098.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). At the conclusion of sentencing, the trial court erroneously informed defendant that he had two days from todays date to file for post-conviction relief. La.C.Cr.P. art. 930.8 provides that a defendant has two years 115from the day the judgment becomes final in which to file an application for post-conviction relief. Accordingly, we order the district court to send written notice of the prescriptive period, along with a notice of when the period begins to run, to defendant within ten days of the rendering of its opinion, then to file written proof in the record that defendant received said notice. State v. Boles, 99-662 (La.App. 5 Cir. 11/10/99), 750 So.2d 1059, 1062.

Additionally, defendant was charged with and convicted of a sex offense as defined in La. R.S. 15:542(E). However, the trial judge did not provide written notification of the registration requirement of La. R.S. 15:542, as required by La. R.S. 15:543(A). Therefore, we remand this matter to the district court ordering that it send the appropriate written notice to the defendant outlining the registration requirements of La. R.S. 15:542, within ten days of rendition of this opinion, and that written proof of compliance and receipt by the defendant be filed in the record. State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1167.

Finally, neither the record nor any minute entry indicates that the jury was sworn as required by La.C.Cr.P. arts. 788 and 790. However, no mention of jury irregularities was raised in the trial court or on appeal. Therefore, consideration of this issue is waived. State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 752, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494.

CONCLUSION

In light of the foregoing, we affirm the defendant’s conviction and sentence but remand this matter for further proceedings.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS.

      . In accordance with LSA-R.S. 46:1844(W)(1), to protect the identity of the victims, they will be referred to by their initials, E.B. and D.R. Additionally, E.B.'s mother shall be referred to as C.B.


source: Caselaw Access Project

author: hMOON LANDRIEU, Judge Pro Tempore.

license: Public Domain

text:
    Robert C. BERTHELOT and Marina Motel, Inc. v. The LE INVESTMENT, L.L.C. and Michael M. Le.
    No. 2002-CA-2054.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 21, 2004.
    Rehearing Denied March 15, 2004.

      A. Scott Tillery, Tillery & Tillery, Chal-mette, LA, for Plaintiff/Appellee.
    Kyle Schonekas, Marc D. Winsberg, Patrick S. McGoey, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge LEON A. CANNIZZARO JR. and Judge Pro Tempore MOON LANDRIEU).
   hMOON LANDRIEU, Judge Pro Tempore.

The defendants-appellants, Michael M. Le and The Le Investment, L.L.C., appeal the May 20, 2002 judgment on a rule for eviction ordering them to vacate the Quality Inn Marina Motel and deliver possession of the premises to the plaintiff-ap-pellees, Robert C. Berthelot and Marina Motel, Inc. The judgment also cancelled and terminated the Lease Purchase Agreement executed by the litigants on September 8, 2000. The judgment further ordered the Clerk of Court to cancel and erase from the records the “Memorandum of said Lease/Purchase Agreement.”

The plaintiffs filed a Petition for Damages for Breach of Contract and Eviction against the defendants on April 18, 2002. The judgment of eviction of May 20, 2002, which forms the basis of this appeal was rendered pursuant to summary procedure on a rule to show cause.

The thrust of the appellants’ argument is that the legal effect of the agreement is that of a bond for deed in spite of the fact that the agreement is styled “Lease/Purchase Agreement,” employs lease terminology and consistently refers to the parties thereto as “Lessors” and “Lessee.”

The plaintiffs convinced the trial court that the agreement was a lease with an option to purchase, and that the defendants breached that portion of the ^agreement placing upon them the obligation that the property “shall at all times be maintained in such conditions as to meet the requirements of the Quality Inn franchise, or its successor in interest, or equal thereto.”

It is undisputed that on September 8, 2000, the litigants executed a document entitled “Lease/Purchase Agreement by Robert C. Berthelot and Marina Motel, Inc. to The Le Investment, Inc., L.L.C.” Appellant, Michael M. Le, signed the agreement on behalf of the L.L.C. and he also signed individually as a surety. The parties do not dispute the statement made in the agreement that:

The consideration for this Lease/Purchase Agreement is a non-refundable payment of $500,000.00 payable at the time of the execution of this document plus a monthly payment of $30,196.00 payable each month with the first payment due at the time of the execution of this agreement and payable monthly thereafter for a full term of twenty-five (25) years.

Later in the agreement in a section entitled “Purchase Agreement,” the appellees agreed to sell the property to the defendants for $4,250,000. The agreement required a non-refundable down payment of $500,000 to be paid with the balance of $3,750,000 at an interest rate of 8.5% per annum to be paid in monthly installments of $30,196 until the final sale is consummated. The agreement states that:

The final sale is to be executed twenty-five (25) years from the date of this instrument, or at any time prior to that date by specific agreement ... The intent of this document is that the LESSEE shall be given credit against the sale price for each monthly payment made first as to interest and then as to principal as if it were paying a note in the same amount as the sum of $3,750,000 bearing interest at the rate of 8.5% per annum from date until paid....
[I]f the sale is consummated at the end of the twenty-five (25) year period, it is agreed that the final act of sale shall be passed within forty (40) days of the date upon which the parties agree to the closing or forty (40) days from the end of the twenty-five (25) year period. The LESSORS shall deliver to the LESSEE a valid and merchantable Ltitle to the subject property free and clear of all liens, mortgages, and encumbrances.

In other words, the purchase of the property would be completed after all the monthly installments were made with no further consideration for the sale. Berthe-lot admitted that the $30,196 monthly payments credited against the sale price were based on a monthly amortization of the $3,750,000 balance at 8.5% interest for twenty-five years.

It is undisputed that the defendants did in fact make a payment of $530,196 (the down payment plus the first monthly installment) at the time of the execution of the agreement, and that pursuant to the agreement the defendants made monthly payments, of $30,196 based on the amortization schedule. The defendants had timely tendered all payments called for under the agreement at the time this litigation was instituted.,

In order to resolve the issues before us, we must determine the nature and effect of the agreement executed by the parties. The proper interpretation of a contract is a question of law subject to de novo review. Montz v. Theard, 2001-0768 (La.App. 1 Cir. 2/27/02), 818 So.2d 181.

' La. R.S. 9:2941 defines a bond for deed as a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer. The bond for deed statute sets forth a number of particular directives the seller must comply with in the transaction including a guarantee to the purchaser from any mortgage holder that it will release the mortgage when it is paid in full, a method for cancellation of the contract in the event of non-payment by the |4purchaser, and appointment of a bank to receive payments from the purchaser. Id. at 187.

In this case, Berthelot agreed to deliver to Le a valid and merchantable title to the subject property free and clear of all liens, mortgages, and encumbrances. The agreement included a section entitled DEFAULT REMEDIES in which Berthe-lot without giving notice or putting Le in default could immediately cancel the lease and then take possession' of the property. However, the monthly payments were made directly to Berthelot not to an appointed bank because there was no mortgage on the property. The requirement that a bank be designated as the escrow agent in order to insure the buyer an unencumbered title when all payments have been made as provided in the bond for deed contract “only applies to bond for deed contracts burdened with a mortgage or privilege.” Mooers v. Sosa, 01-286 (La.App. 5 Cir. 9/25/01), 798 So.2d 200.

Louisiana courts have routinely treated agreements similar to the one before us as a bond for deed regardless of the characterization given them by the parties to the agreement, even when the documents do not strictly follow all of the mandates of the statute. The Louisiana Supreme Court has found that a contract can be treated as a bond for deed despite its failure to comply with certain particulars of the statute where the party for whom the omitted protections are designed does not protest their absence. Therefore, the label put on the transaction is not determinative. Montz at 187.

In a similar case, Tabor v. Wolinski, 99-1732 (La.App. 1 Cir. 9/22/00), 767 So.2d 972, the defendant Wolinskis signed a lease purchase agreement in which they agreed to purchase real property for $8,700. The agreement required the defendants to pay a down payment of $225 and sixty (60) monthly installments of |b$188.53 using an amortization schedule. At the end of the lease, the lessor agreed to sell the property for an additional consideration of $1.00. The defendants also submitted at trial an unsigned United States Department of Housing and Urban Development “Settlement Statement” consistent with terms in the lease purchase agreement referring to the agreement as a “bond for deed” contract. The appellate court found that “[t]he determinative fact in this case is that from the inception of the transaction, the Wolinskis were bound to pay the full amount of payments, including the $1.00 consideration at the end. Thus, the agreement is distinguishable from a lease with an option to purchase.” 99-1732, p. 8, 767 So.2d at 974.

In the instant case, Le was obligated to make all payments required in the lease purchase agreement with no further consideration to complete the sale. The payment requirements of the “Lease/Purehase Agreement” in this case fit the definition of bond for deed and therefore that is the legal effect of the agreement in spite of lease and rental language.

The only basis for default described in the bond for deed statutes, La. R.S. 9:2941, et. seq., is the failure to make the required payments. La. R.S. 9:2945 provides that where there is no mortgage on the property, as in the • instant case, if the buyer under a bond for deed contract shall fail to make the payments in accordance with its terms and conditions, the seller, at his option, may have the bond for deed can-celled by proper registry in the conveyance records. It is clear that in no case would a seller be entitled to exercise any expedited form of forfeiture or repossession under a bond for deed other than for nonpayment, the only form of default specifically recognized by La. R.S. 9:2944.

| (iThe question is can parties in a bond for deed transaction contractually agree to and the courts of this State enforce bases for default other than nonpayment, such as the maintenance requirement in the agreement in this case. Since, we find no cases or commentaries on this question, we must resort to equity in order to resolve this case. La. C.C. art. 4.

There is nothing intrinsically offensive or against public policy with having maintenance requirements in contracts affecting real property. In this case, the parties’ have reasonably contracted regarding default provisions other than for nonpayment. The default remedy in the agreement allows Berthelot to cancel the lease and take possession of the property for failure to maintain the requirements in the maintenance provision. However, the trial court erred by allowing the plaintiffs-appellees to proceed by means of the summary eviction procedure when the basis for default was on a maintenance requirement, not the nonpayment of the monthly installments. The plaintiffs should have been required to file suit allowing the defendants a full trial on all defenses and offsets.

Appropriate adjustments must be made in the case of a failed bond for deed transaction. The seller in a bond for deed contract is not entitled to retain all monies paid by the purchaser. Montz at 187. A bond for deed agreement including provisions allowing the seller to retain all monies paid by the purchaser is null and void because it is inequitable, unreasonable and an illegal attempt to recover punitive damages. Id. Jurisprudence establishes that in a failed bond for deed transaction, the “purchaser is entitled to the return of all moneys paid on the purchase price, including the down payment and monthly installments, the insurance premiums, and the taxes paid ... [and] the seller is entitled to an allowance for the fair rental value of the property during the period of plaintiffs 17occupancy and that a remand is appropriate where the rental value cannot be determined from the record.” Id.

In the instant case to allow Berthelot to retain all monies paid on the purchase price, including the non-refundable down payment and monthly installments, the insurance premiums, and the taxes paid by Le would be inequitable and unreasonable. Berthelot is only entitled to an allowance for the fair rental value of the propérty while it was occupied by Le. Based on the record before us, we are unable to determine the fair market rental value of the property.

. For the foregoing reasons, we vacate the judgment of the trial court and remand this case for trial on the merits.

VACATED AND REMANDED.


author: JjLEON A. CANNIZZARO, JR., Judge.

text:
    Lionel SANFORD v. CITY OF NEW ORLEANS, New Orleans Aviation Board and State of Louisiana, Through the Department of Transportation and Development.
    No. 2003-CA-0883.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 21, 2004.

      Edward B. Mendy, Donglai Yang, Men-dy & McElroy, LLC, New Orleans, LA, for Plaintiff/Appellant, Lionel Sanford.
    Alston Johnson, Marshall M. Redmon, Rebecca B. Crawford, Phelps Dunbar, L.L.P., Baton Rouge, LA, for Defendant/Appellee, City of New Orleans by and Through the New Orleans Aviation Board.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

The plaintiff, Lionel Sanford, was in a serious automobile accident on the New Orleans International Airport Access Road in Kenner, Louisiana. He sued the City of New Orleans, the New Orleans Aviation Board, and the State of Louisiana through The Department of Transportation and Development, alleging that his injuries were the result of the design and condition of the roadway and the location of a directional sign that he hit. The trial court rendered judgment in favor of the defendant, the City of New Orleans by, and through the New Orleans Aviation Board . Mr. Sanford is appealing.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Sanford was driving his pickup truck on the airport access road during a light rain in the early evening. Witnesses observed him speeding through a curve and losing control of his vehicle. He swerved into the opposite lane, sideswiped an oncoming car, and swerved back into his own lane. Then he drove off the road and struck a large directional sign on the side of the road. Mr. Sanford lost consciousness in the accident. He was ultimately taken by ambulance to the | ¡.emergency room at East Jefferson Hospital, where he was admitted. Mr. Sanford was seriously and permanently disabled as a result of the accident.

The police officer, who investigated the accident, smelled a strong' odor of alcohol on Mr. Sanford’s breath when she first checked his condition at the scene of the accident. She, therefore, concluded that he had been drinking. The police officer cited Mr. Sanford for careless operation of a vehicle and for having a switched license plate, and she also determined that there were no obvious defects in the access road that could have caused the accident.

When Mr. Sanford arrived at the hospital, the emergency room physician on duty ordered a number of laboratory tests and radiological procedures, one of which was a test to determine the level of alcohol in Mr. Sanford’s blood. The test showed that Mr. Sanford had a blood alcohol concentration of 0.199.

At trial Mr. Sanford argued that there was no proof that the.blood tested for its alcohol concentration was his, because the vial in which the blood was collected was labeled with the name “John Doe 71”. Also, there was a very minor discrepancy in the time the blood was recorded as having been drawn and the time that Mr. Sanford arrived at the hospital. Therefore, Mr. Sanford objected to the introduction of the results of his blood alcohol test into evidence.

Witnesses at the trial, however, testified that they had no doubts that the blood that was tested for its blood alcohol concentration was, in fact, Mr. Sanford’s blood. The testimony at the trial established that the procedures for collecting and testing blood from emergency room patients relied on a medical record number, not the patient’s name, for the identification of the blood samples. The testimony also established that the medical record number for all of Mr. Sanford’s test results, including the blood alcohol test, was the same. Additionally, the discrepancy ^between the time the blood was drawn for the blood alcohol test and the time Mr. Sanford arrived at the hospital was explained by the testimony of an emergency medical services supervisor. He testified that the time the blood was drawn was based on a clock at the hospital and that the time Mr. Sanford arrived in the emergency room was based on the clock at the office of the ambulance service. Therefore, a discrepancy of a few minutes was inconsequential.

Mr. Sanford claimed that the accident occurred, because the airport access road did not have a median barrier. Mr. Sanford also contended that the sign he hit should either have been placed farther from the side of the road, constructed with a breakaway support, or protected with a guardrail. According to Mr. Sanford’s argument, had any of these protective measures been taken, the accident could have been avoided or its severity lessened.

The case was tried before the judge. After Mr. Sanford concluded the presentation of his case, the Aviation Board moved for an involuntary dismissal of Mr. Sanford’s claim that the lack of a median barrier caused or contributed to the accident. The judge granted the dismissal, because she found that the absence of a median barrier was not a cause of the accident. Additionally, Mr. Sanford’s own expert witness in highway design and engineering had testified that he could not say that a median barrier would have prevented Mr. Sanford’s accident. After the involuntary dismissal of the claims regarding the median barrier, the Aviation Board presented its case.

Both Mr. Sanford’s expert witness in highway design and engineering and the Aviation Board’s expert witness in civil engineering, highway design, and |4accident reconstruction testified that roads such as the airport access road must have clear zones. The Aviation Board’s expert defined “clear zone” as “an area adjacent to the travel lane, which is to be kept free of obstacles and excessive slopes on the roadside area because that type of environment gives the driver the opportunity to recover.” He also testified that “[sjhould he [the driver] exit the highway, there’s room to maneuver, get back on the highway and not have an accident.”

Both experts agreed that the sign that Mr. Sanford hit was required either to be placed outside of the clear zone or to be protected from a vehicle that might leave the roadway. The sign could be protected either by using breakaway supports in the construction of the sign or by constructing a guardrail that would deflect away from the sign any vehicle that might hit the guardrail.

Although both Mr. Sanford’s and the Aviation Board’s experts on highway design and engineering agreed regarding the need for a clear zone, they used different standards for determining the size of the clear zone. In her Reasons for Judgment, however, the trial court stated that the sign that Mr. Sanford hit was “beyond the clear zone articulated by either of them.” The trial court also found that the only type of breakaway sign post that might have changed the result of Mr. Sanford’s accident was not available when the sign was constructed. Additionally, both experts agreed that there was no need for a guardrail if the sign were not located within the clear zone. Therefore, the trial court found that the Aviation Board was not negligent in breaching the duty that is owed by those who own and maintain public highways and shoulders to protect persons who inadvertently drive off of the roadway. Finally, the trial court stated in her Reasons for Judgment that “the totality of the evidence establishes by a preponderance of evidence that this 15serious accident would have occurred whether or not the directional sign was outside the clear zone.”

At trial both the Aviation Board’s expert witness in civil engineering, highway design, and accident reconstruction and the Aviation Board’s expert in forensic pathology testified that Mr. Sanford’s accident was caused solely by Mr. Sanford’s own actions. The accident reconstruction expert testified that in his expert opinion the accident was due solely to driver error. He explained that had Mr. Sanford not been significantly impaired, he could have regained control of his vehicle after he first lost control. The forensic pathologist testified that a person under the influence with a 0.199 concentration of blood alcohol would be significantly impaired in maintaining control of his vehicle and in regaining control if he were to lose control. The forensic pathologist also testified that the 0.199 concentration of alcohol in Mr. Sanford’s blood at the time the blood was drawn for testing may well have been higher at the time of the accident, because Mr. Sanford had been given fluids after the accident, and those fluids could have decreased the concentration of the alcohol in his blood. Finally, the forensic pathologist testified that it is a “general tested fact”, not just his opinion, that a person with a blood alcohol concentration of 0.199 is too intoxicated to safely operate a motor vehicle.

After the trial was concluded the trial court judge rendered judgment in favor of the Aviation Board and the City of New Orleans. Mr. Sanford’s suit was dismissed with prejudice. In her Reasons for Judgment the trial court judge stated that “plaintiff was the sole cause of the accident.” She also found that “[ajbsent his intoxication, the testimony establishes that Mr. Sanford could have regained control of his vehicle and avoided striking the directional sign post.”

I «STANDARD OF REVIEW

• In Rosell v. ESCO, 549 So.2d 840 (La. 1989), the Louisiana Supreme Court discussed as follows the issue of the scope of the appellate court’s review of a trial court’s findings of fact:

It is well settled that 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,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 844. See also Mistich v. Volkswagen of Germany, Inc., 95-0939, (La.1/29/96), 666 So.2d 1073; Aleman v. Favret Co., 349 So.2d 262 (La.1977); Harvey v. Cole, 2000-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771.

In Glass v. Alton Ochsner Medical Foundation, 2002-0412 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, this Court discussed the scope of appellate review of issues of law. This Court stated:

The standard of review of appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct. Furthermore, if the decision of the district court is based on an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court.

|720Q2-0412, p. 3; 832 So.2d at 405 (citations omitted). See also Sander v. Brousseau, 2000-0098, p. 4 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 711, where this Court stated that “[ajppellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct.”

DISCUSSION

Mr. Sanford claims that the trial court made a number of errors. We will address each of those alleged errors below.

Strict Liability

Mr. Sanford argues that the trial court should have applied La. C.C. art. 2317 to the instant case. That article provides that “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by ... things which we have in our custody.” In Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, the Louisiana Supreme Court articulated a three-prong test for determining the applicability of article 2317 to an action arising before 1996. The Supreme Court stated:

• In an action asserting liability under La. Civ.Code art. 2317 before 1996, the plaintiff bore the burden of proving three elements: (1) that the thing which caused the damages was in the care, custody, and control (garde) of the defendant; (2) that the thing had a vice, ruin, or defect that presented an unreasonable risk of harm; and (3) that the vice, ruin, or defect was the cause-in-fact of the plaintiffs damages. To recover, plaintiff bears the burden of proving these elements in the affirmative, and the failure on any one is fatal to the case.

|899-3651, pp. 5-6, 765 So.2d at 1008 (citations and footnote omitted).

In the instant case the trial court did not find that the sign that Mr. Sanford hit or the roadway itself had a vice, ruin, or defect that created an unreasonable risk of harm. Additionally, the trial court found that the accident was caused solely by the actions of Mr. Sanford. Therefore, Mr. Sanford failed to prove the elements necessary to impose liability on the Aviation Board under La. C.C. art. 2317, and we find that the trial court’s rejection of the strict liability claim under article 2317 was proper.

Weight of the Evidence

Mr. Sanford argues that the trial court should not have concluded that the blood sample from which his blood alcohol concentration was determined was, in fact, his blood. Mr. Sanford further argues that because of the possibility of an error in the identification of the blood sample, the trial court should not have given the weight it did to the evidence of his intoxication at the time of his accident.

La. R.S. 13:3714 provides as follows:

Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question ... is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the ... chart, or record is sought to be used may summon and examine those making the original ... chart, or record as witnesses under cross-examination.

Pursuant to the provisions of this-statute, the copies of the medical records from the hospital that were introduced into evidence at the trial are prima facie evidence of the test results, including the blood alcohol test results, that are contained in the records.

In Judd v. State, Department of Transportation and Development, 95-1052 (La.11/27/95), 663 So.2d 690, the Louisiana Supreme Court stated that “ ‘[c]ourts and commentators alike generally consider medical records, including records reflecting a patient’s [blood alcohol concentration] BAC, to be inherently reliable because medical personnel rely on the information in those records in making life and death decisions.’ ” 95-1052, p. 6, 663 So.2d at 694, quoting Raymond P. Ward, Admissibility Under Louisiana Law of the Results of Chemical Tests of a Person’s Blood Alcohol Concentration, 35 Loy. L.Rev. 1402, 1419 (1990). The Supreme Court further stated that Louisiana considers hospital records to be inherently reliable and that no foundation beyond certification is required for certified hospital records to be admitted into evidence. Id.

Finally, in Judd the Supreme Court held that where a party can satisfy the requirements of La. R.S. 13:3714, the medical records, including blood alcohol test results, will be admitted into evidence as prima facie proof of the contents of the records. The Supreme Court then stated as follows:

[T]he weight given the records will be effected by the expert testimony which may be offered to interpret the records. The weight is also affected by evidence introduced by either party regarding the character of the chain of custody, the quality of the testing procedures, or any other relevant factors that may be developed on cross-examination.

95-1052, pp. 9-10, 663 So.2d at 696.

There was exhaustive evidence presented at the trial to establish that the blood that was tested was Mr. Sanford’s. The trial testimony of the emergency room nursing supervisor at the hospital, the emergency room physician who actually treated Mr. Sanford, and an emergency medical services supervisor, who was familiar with the procedures that were followed in connection with Mr. Sanford’s transport to the hospital by ambulance, established that the procedures |10that were followed in the hospital emergency room would insure that it was, in fact, Mr. Sanford’s blood that was tested for its blood alcohol concentration.

' Additionally, both the Aviation Board’s expert on accident reconstruction and the forensic pathologist who testified at the trial opined that the accident was caused by Mr; Sanford’s intoxication. In her decision, the trial court judge obviously gave great weight to the experts’ testimony regarding the effect of alcohol intoxication on the ability to drive safely and to the testimony regarding the accuracy of the blood alcohol test. We do not find that the decision of the trial court judge regarding the weight to be given to the blood alcohol test or the effect of Mr. Sanford’s intoxication on his ability to, drive was either manifestly erroneous or clearly wrong. Therefore, the trial court’s findings .will not be disturbed on appeal. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Roadway Standards

Mr. Sanford argues that the trial court should have applied the minimum safety standards applicable to highway design that have been formulated by the American Association of State Highway and Transportation Officials (“AASHTO”) in determining whether the airport access road should have had a median barrier and in determining the size of the necessary clear zone for that portion of the road where the sign Mr. Sanford hit was located. Both Mr. Sanford and the Aviation Board presented the testimony of expert witnesses in highway design and engineering. Mr. Sanford’s expert witness testified that the safety standards promulgated by AASHTO were applicable to the airport access road. The Aviation Board’s expert witness testified that the AASHTO safety standards were not applicable to the sign that Mr. Sanford hit. Both experts, however, testified that there should have been a clear zone between the roadway and the I,-isign, and the trial court determined that the sign was outside of the clear zone under both the safety standards used by Mr. Sanford’s expert witness and those used by the Aviation Board’s expert witness.

This Court is required to give great deference to the trial court judge’s determination of which of the experts’ opinions is more credible where there is a difference of opinion. See Rosell v. ESCO, 549 So.2d 840 (La.1989). Unless the trial court’s determination is clearly wrong or manifestly erroneous, we will not disturb it on appeal. In the instant case, the trial court judge chose to believe the testimony of the Aviation Board’s expert witness regarding the applicability of the AASHTO standards, and there is ample support in the record for this choice. We will defer to the trial court judge’s determination on this issue.

Comparative Fault

Mr. Sanford argues that his intoxication and his fault should not bar recovery; rather, these factors should only reduce his recovery. See La.C.C. art. 2323, which requires fault to be apportioned among all persons contributing to an injury, death, or loss. Mr. Sanford cites the cases of Petre v. State, through Department of Transportation and Development, 2001-0876 (La.4/3/02), 817 So.2d 1107, and Campbell v. Louisiana Department of Transportation & Development, 94-1052 (La.1/17/95), 648 So.2d 898, in support of his argument and then states in his brief that “the only bar to recovery would be a finding of one hundred percent (100%) fault on the part of plaintiff.” In the Petre case and in the Campbell case the trial court judge had allocated fault between the parties, and the Supreme Court affirmed the allocation of fault by the trial court in both cases. In the instant ease, however, the trial court determined that Mr. Sanford was solely at fault. Because there was ample evidence in the record to support the trial court’s | ^determination that Mr. Sanford was solely at fault, her determination is neither manifestly erroneous or clearly wrong. Therefore, we will not disturb her allocation of fault to Mr. Sanford in the amount of one hundred percent. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Clear Zone

Mr. Sanford argues in his brief that the trial court erred “in not finding that the failure to provide an unobstructed or barrier protected clear zone had any bearing on Plaintiffs accident.” This argument is without merit. There was no testimony that a median barrier would have prevented Mr. Sanford’s injuries, and even Mr. Sanford’s own expert witness on highway design and engineering testified that he could not opine that a median barrier would have prevented Mr. Sanford’s accident. Additionally, the testimony of both Mr. Sanford’s and the Aviation Board’s highway engineering experts clearly supported the trial court’s determination that the sign hit by Mr. Sanford was outside the clear zone. Even though the experts used different standards for determining roadway safety, under either standard the clear zone requirements for the sign were met. The trial court judge’s determination on this issue was neither manifestly erroneous nor clearly wrong. Therefore, we will not disturb her determination. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Procedural Errors

Mr. Sanford argues that the trial court made several procedural errors. Specifically, he claims that the court should not have limited him to admitting evidence of only one prior accident on the airport access road and that the court should have permitted testimony regarding the remedial measures that were taken after the accident to make the roadway safer. Additionally, Mr. Sanford claims that | isthe trial court should have permitted his expert witness on highway design to use certain studies in connection with his testimony and that the trial court should have admitted into evidence certain exhibits.

All of the procedural errors alleged by Mr. Sanford are evidentiary matters. In Jones v. Peyton Place, Inc., 95-0574, pp. 11-12 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 763, this Court stated that “[a] trial court’s rulings on ...' evidentiary'-issues will not be disturbed unless a clear abuse of discretion is shown.” See also Tadlock v. Taylor, 2002-0712, p. 7 (La.App. 4 Cir. 9/24/03), 857 So.2d 20, 27. We find that Mr. Sanford has failed to show that the trial court judge abused her discretion in these- -evidentiary matters, and we find nothing in the record-to show any abuse of discretion by the judge. Therefore, we will not disturb-the trial court’s ruling on the admissibility of the evidence Mr. Sanford argues should have been permitted to be introduced.

CONCLUSION

Based on the foregoing, we find no error in the trial court’s judgment. The judgment is affirmed.

AFFIRMED.

      . At the time of the trial the only defendant remaining in the suit was the City of New Orleans acting through the Aviation Board.

      . The most severe injuries suffered by Mr. Sanford resulted from his hitting the sign, not from sideswiping the car on the opposite side of the roadway.

      . Effective November 23, 1995, La.R.S. 9:2800 requires a public entity to have actual or constructive notice of a defect in a thing under its care and custody before liability can be imposed on it under La.C.C. art. 2317. In the instant case, notice is not required, because the accident occurred prior to the effective date of the notice requirement.


author: | .SUSAN M. CHEHARDY, Judge.

text:
    Brad J. ALEXANDER v. Claude R. FORD, Joseph N. Anderson, Jr. and His Liability Insurance Carrier, State Farm Insurance Company, and Allstate Insurance Company, Sued Herein as the Uninsured/Underinsured Motorist Carrier of Plaintiff.
    No. 03-CA-887.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Daniel E. Becnel, III; LaPlace, LA, for Plaintiff-Appellant, Brad J. Alexander.
    Matthew W. Pryor, Timothy E. Pujol, Carla S. Courtney, Pujol & Pryor, Prairie-ville, LA, for Defendants-Appellees, State Farm Mutual Automobile Insurance Company and Claude R. Ford.
    Panel composed of Judges EDWARD A. DUFRESNE, JR.,. THOMAS F. DALEY and SUSAN M. CHEHARDY.
   | .SUSAN M. CHEHARDY, Judge.

This is a personal injury suit arising from an intersectional collision. The plaintiff appeals a jury verdict that found him 20% comparatively negligent and awarded him damages for pain and suffering and for medical expenses, but denied damages for permanent disability and for loss of enjoyment of life. Plaintiff seeks reversal of the finding of proportionate fault against him, an increase in quantum, and an increase in the award for medical expenses. We amend and affirm.

In the petition Brad J. Alexander alleged that on May 4, 2000 at approximately 5:47 p.in. he was operating his pickup truck traveling east on U.S. Highway 61 in St. John the Baptist Parish, when he came to a stop to make' a left turn and was struck from the rear by a vehicle owned by Joseph N. Anderson, Jr. and being driven by Claude R. Ford. The plaintiff claimed he suffered lower and mid-back pain, right leg pain, shoulder pain, and neck pain as a result of the accident. He filed suit against Ford, Anderson, their insurer (State Farm Insurance Company), and his own uninsured/underinsured motorists insurer (Allstate Insurance Company).

Anderson and Allstate were dismissed from the suit prior to trial. After a two-day trial, a jury returned a verdict finding that both the defendant Ford and the |3plaintiff were negligent, that the negligence of each was a proximate cause of the accident, that their respective proportions of negligence were 80% for Ford and 20% for Alexander, and that Alexander had been injured as a result of the accident. The jury awarded Alexander $10,000.00 for physical and mental pain and suffering (past, present and future) and $6,400.00 for medical expenses (past, present and future), but awarded zero for permanent disability and loss of enjoyment of life. After deduction for plaintiffs comparative fault, the judgment in favor of plaintiff was in the amount of $13,120.00, with court costs assessed against the parties in proportion to the degree of fault determined by the jury.

Plaintiff filed a Motion for New Trial, JNOV, Additur and Expert Costs. The trial court denied a new trial, JNOV and additur, but granted expert costs, awarding $500.00 each for the fees of Dr. John Barrett and Dr. Bradley Bartholomew, with the expert fees taxed to the parties in the proportions assessed by the jury for fault. State Farm, as insurer for Ford, deposited its policy proceeds into the court registry in the amount sufficient to satisfy the judgments on the merits and on the costs as rendered, including interest. The plaintiff withdrew the proceeds from the registry and took this devolutive appeal.

TESTIMONY

At trial plaintiff testified that in February 2000 (three months before this accident), he was in an accident in which his leg was fractured. He had undergone surgery for the leg that involved insertion of a rod from his hip to his knee. By May 4, 2000,' when this accident made the basis of this suit occurred, he had been released to drive. He was coming from his parents’ home in his father’s pickup truck, going to Norco to visit a friend. He was on Airline Highway in the left lane, when he remembered he had forgotten his cell phone. Planning to turn around and go back to get his phone, he came to a “sudden, like a stop to make a turn,” at | ¿which time he was rear-ended. Plaintiff testified he had been traveling 25 or 30 miles per hour before he stopped and he had his turn signal on. He denied that he slammed on his brakes when he stopped.

At the time of the May 4 accident he was still recovering from his prior leg injury and had not yet returned to work. At the time plaintiff did not think he was hurt, but later he felt shaken up and feared he had re-injured his leg. He went to see Dr. John Barrett, a chiropractor, a few days after the accident. His neck, shoulders and lower back were “kind of bothering” him — “just aching” in the daytime and at nighttime would “really, really bother” him. He underwent chiropractic treatment by Dr. Barrett numerous times over the rest of the year, until Dr. Barrett discharged him on January 26, 2001. By then he had returned to work.

Plaintiff said his neck, shoulders, and lower back were “really, really bothering” him, especially when the weather got cold, at night, and when he bent down. Occasionally his left arm would get numb from his shoulder to his hand. He took medications and did exercises prescribed by Dr. Barrett. In December 2000 he was still complaining of pain. Dr. Barrett ordered an MRI.

Plaintiff said he stopped going to the doctor in January 2001, however, because he had “bills to pay ... got a family to support ... my pain wasn’t really as bad and I was at home sticking it out, doing my exercises.” Also, he had moved to Gonzales and was 40 miles from LaPlace, where Dr. Barrett’s office is located.

He testified he continued to have pain that never went away for more than one or two days. He called Dr. Barrett, who referred him to a neurologist, Dr. Bradley Bartholomew. He saw Dr. Bartholomew in February 2002 and again in November 2002. Dr. Bartholomew prescribed a painkiller and a muscle relaxant for him. He had begun to have radiating pain and numbness a couple of weeks |safter he started seeing the chiropractor. At trial he said it still came and went and recurred more often than when he first saw the chiropractor.

Plaintiff denied that either of his two visits to Dr. Bartholomew were related to imminent trial dates for this lawsuit, although both visits occurred within weeks of then-set trial dates.

Plaintiff stated his condition was worse on the date of trial than it was in May 2000, right after the accident. At the time of trial he was scheduled to return to Dr. Bartholomew for further evaluation. He said that since the accident in May 2000, he was able to perform his job — “I couldn’t really keep up, but I hung in there.” He felt he was only back to 80% in his neck, back and shoulders, however, and that he was getting worse rather than better: “I really can’t cut grass like I used to, and I can’t pull grass out of my flower bed, have my flower bed looking good because it hurts me to bend over.” In addition, he could not hold his child for a long time as he could before. Driving long distances was uncomfortable.

He said if Dr. Bartholomew offered him a regimen of injections or surgical treatments, he would consider doing it because he was tired of being in pain. His neck, shoulders and back bothered him more than the leg. He had no restrictions in use of his leg.

On cross examination plaintiff stated that he had been released to return to driving by the doctor treating him for the leg injury. He reiterated that he had no back, neck or shoulder pain prior to the May 2002 accident. Confronted with the question whether Dr. Morgan diagnosed him with possible thoracic and lumbar strain on March 16, 2000, he said he did not remember because he had been to “so many doctors.” He did not dispute the medical report that contained that information. He also did not dispute the report stating that on January 26, 2001 Dr. Barrett found that his condition had resolved. He admitted, further, that from the | ^time he was released by Dr. Barrett until he saw Dr. Bartholomew in February 2002,13 months later. He also admitted that in his deposition he had said that his attorney requested the MRI and when plaintiff asked Dr. Barrett about .it, Dr. Barrett said, “That’s a good suggestion.”

The plaintiff admitted he said in his deposition that he was going 30 mph when he slowed so he wouldn’t hit the car in front of him and, when he stopped completely, he was hit, and that he turned off the roadway after defendant’s car hit his. On redirect, plaintiff reiterated that he was stopped at the time of the collision.

The plaintiffs medical bills filed in evidence totaled $6,860.80.

Dr. John S. Barrett testified as an expert chiropractor. He first saw plaintiff on May 8, 2000, when plaintiff presented himself for treatment. His history was motor vehicle accident, followed by neck and mid-back pain that aggravated a previous leg condition, and some low-back pain. Dr. Barrett’s diagnosis was cervical hypo-lordosis, cervicalgia, and myalgia thoracic. Plaintiff was treated 30 times over the nine-month period from May 8, 2000 to January 26, 2001. After six to eight months, when plaintiff reached had not reached full improvement, Dr. Barrett requested an MRI, which revealed two bulging disks in his back, one in the cervical area and one in the lumbar area. That correlated to plaintiffs complaints of continuing pain. Dr. Barrett referred him to a neurosurgeon to seek further relief.

Dr. Barrett stated that plaintiff did not comply with their usual treatment regimen, in which the patient comes several times a week at the beginning of his treatment, reducing to fewer visits over the course of time. Plaintiff told Dr. Barrett he had transportation problems and couldn’t get in. Dr. Barrett admitted that on January 26, 2001 plaintiffs chart noted, “neck symptoms resolved, released, maximum medical improvement.” It was January 24, 2002, a year later, Dr. Barrett |7wrote to plaintiffs counsel recommending referral to a neurologist. Plaintiff was still complaining of neck, shoulder and back pain 40-50% of the time.

Dr. Bradley J. Bartholomew testified as an expert neurosurgeon. He saw plaintiff twice on referral from Dr. Barrett, the first time on February 22, 2002. Dr. Bartholomew stated that for non-severe cases of plaintiffs type there is usually a two-month waiting period for an appointment to see him. The doctor reviewed the MRI scan, which showed a bulging disk at L5, SI level and also at the C6,7 level. He felt an operation was not in plaintiffs best interest and presented other treatment options (including steroid injections). They elected to proceed with a muscle stimulator and anti-inflammatory medication. He noted it is highly unusual for a 29-year-old man such as plaintiff to have bulging disks without the occurrence of trauma. Once a disk is damaged there will be accelerated degenerative changes.

Dr. Bartholomew saw plaintiff again in November 2002. He was still having complaints of pain, as well as numbness from the shoulder down to the hand, and pain from his back or hip area down to his knee. The radiating pain correlates with a worsening herniated disk. At the time of trial (January 22, 2003) plaintiff was scheduled to return to Dr. Bartholomew in one month. Dr. Bartholomew said the fact that plaintiff continued to have pain indicated more extensive treatment would be required, such as a series of steroid injections. He said plaintiff will require future medical care and future expenses as long as he has continued complaints.

Dr. Bartholomew reviewed the reports of Dr. Joe Morgan, who treated plaintiff following his prior accident of February 2000. He stated he saw nothing in those reports that would change his testimony. He said when Dr. Morgan noted on | sMarch 16th that plaintiff complained of thoracic tenderness or lumbar sprain, Dr. Morgan was “just being thorough asking the patient anything that was bothering him that day.” The fact that there were no further complaints of back pain listed in Dr. Morgan’s reports indicated to Dr. Bartholomew that the pain had resolved.

Dr. Bartholomew stated that considering the patient’s history, with one episode of minor aching in the back versus several years of continuing pain, he would not associate the findings on the MRI to the February 2000 accident, but rather attribute them to the May 2000 accident.

Regarding restrictions on activity, Dr. Bartholomew said plaintiff should refrain from repetitive bending, stooping, crawling, twisting, turning and picking up more than 25 pounds. Any continuing flexion where the neck is in one position too long will aggravate his neck pain. He should try to avoid working continuously with his arms above his head, because looking up will exacerbate his neck pain.

On cross examination, Dr. Bartholomew stated that in his medical history plaintiff denied ever sustaining injury to his back or neck previously. He also denied ever having had back or neck problems before. The doctor also admitted that plaintiff had no objective evidence of pain; his complaints were subjective. His diagnosis, on' February 22, 2002, was cervical facet syndrome.

Dr. Bartholomew believed the patient was telling him the truth. He said the degenerative changes shown on the MRI could have existed before the accident in May 2000, but he felt they resulted from that accident.

The defense witnesses were Chad Ford and Claude Ford.

Chad Ford (who was 11 years old when this accident occurred) testified he was riding with his father on May 4, 2000 when they were in an accident. The truck in front of them came to a sudden complete halt, Chad’s father hit the brakes, then they hit him. Mr. Alexander got out of the truck, walking on crutches. He | nthought his father was about 10 feet behind the other car. Chad was 11 years old when the accident occurred. Chad estimated the distance between the vehicles by gauging distances in the courtroom where he was testifying. The court noted the distance he indicated was about 21 feet.

Claude Ford, the defendant, testified he was traveling home on Airline Highway with his son, driving in the fast lane, following the plaintiff. The plaintiff came to a sudden halt. Defendant tried to stop, but could not stop in time and hit him. They pulled over in a nearby parking lot and plaintiff got out of his vehicle, walking on crutches. Defendant recalled plaintiff had a brace on his neck.

According to defendant, plaintiff said he had just got out the hospital for the operation and he was a little shaken up, but other than that he was fine. When police came to investigate the accident, they determined that defendant had a suspended driver’s license and he was taken to jail. Plaintiff left the scene in his vehicle.

Defendant estimated that when plaintiff stopped they were both going 55 miles per hour and he was 15 feet behind plaintiffs truck. However, neither vehicle had to be towed away after the accident. Both of them were driving big pickup trucks. They were the same size — defendant was in a Ford F150, plaintiff was in a Chevy 1500. Plaintiffs vehicle did not skid or go far after the impact.

ISSUES

On appeal the plaintiff assigns as error the jury’s allocation of 20 fault to the plaintiff; the amount of the award for general damages; and the jurys apparent failure to award the amount of Dr. Bradley Bartholomews past medical bills as well as the failure to include a figure for future medicals.

The defendant contends the jurys assessment of fault against plaintiff was not clearly wrong based on the evidence, the award of damages did not constitute |inan abuse of discretion, and the failure to award the expenses incurred by Dr. Bartholomew was consistent and was based on the law and evidence.

Apportionment of Fault

La.R.S. 32:81(A) states, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

The following motorist in a rear-end collision is presumed to have breached this duty, and he bears the burden of exonerating himself. Hadley v. Doe, 626 So.2d 747, 750 (La.App. 5 Cir.1993). While a following motorist may assume that the vehicle in front is being driven with care and caution, he must drive at an appropriate speed and must maintain an interval between the two vehicles as would enable him to avoid a collision with the lead vehicle under circumstances which should be reasonably anticipated. Id.; Anderson v. May, 01-1031 (La.App. 5 Cir. 2/13/02), 812 So.2d 81.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880, 882 (La.1993). 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. Id.

Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Applying these principles to the facts of this case, we find no basis to disturb the jury’s assessment of 20% fault against the plaintiff. The conflicts in the | ^ testimony placed this decision squarely within the jury’s province and their evaluations of credibility and inferences regarding how the accident occurred are reasonable. Accordingly, we find no merit to this assignment.

Quantum

Plaintiff complains the jury failed to award an adequate amount of general damages in light of Dr. Bartholomew’s testimony that plaintiff had two herniated disks and a six- to eight-percent permanent whole body impairment and that plaintiff complained of waxing and waning pain for over 2-1/2 years. Plaintiff points out that the uncontradicted medical testimony was that he has bulging cervical and lumbar disks in his spine that most likely are related to this accident, because it would be unusual for a healthy 29-year-old man to have these without trauma and plaintiff had no back-related symptoms prior to this accident.

As noted above, however, the defense elicited testimony of Dr. Barrett that plaintiff did not follow the treatment protocol of two to three visits per week for 12 weeks, but instead was seen two to three times per month from May 2000 until January 2001, a nine-month period, with some extra visits in the months of July and August 2000. Dr. Barrett’s records re-, fleeted that on January 26, 2001 plaintiffs symptoms had resolved and ' he had reached maximum medical improvement. In addition, plaintiff did not return for treatment during the two years between his last visit to Dr. Barrett in January 2001 and the trial.

In the assessment of damages in cases of offenses and quasi offenses, much discretion must be left to the judge or jury. La.C.C. art. 2824.1. Absent a determination that the trial court’s very great discretion in the award of general damages has been abused in the matter under review, the reviewing court should not disturb the trier’s award. Reck v. Stevens, 873 So.2d 498, 501 (La.1979). The 1 ^discretion vested in the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

The jury had to decide whether the plaintiff suffered a herniated disc as a result of the accident, or whether the bulging disc was pre-existing and plaintiff suffered only soft-tissue injury from the accident at issue. It is apparent the jury concluded that plaintiffs injury was soft tissue and that resolved within a nine-month period. That determination is supported by the record: the notation in Dr. Barrett’s records that plaintiffs injuries had resolved; plaintiffs failure to return for treatment for over a year after being discharged; plaintiffs continuing to work as a bobcat operator during most of the period; the examinations by both Dr. Barrett and Dr. Bartholomew that found nothing more than a pain syndrome.

We find no manifest error in the jury’s determination. Nor do we do find the award is less than a reasonable trier of fact could assess for the effects of this particular injury to this particular plaintiff under these particular circumstances, so as to warrant this court’s either increasing or reducing the award. See Youn, 623 So.2d at 1261, and Hebert v. Old Republic Ins. Co., 01-355, p. 17 (La.App. 5 Cir. 1/29/02), 807 So.2d 1114, 1127.

Medical Bills

Plaintiff complains the jury erred in failing to award him recovery for the bills of Dr. Bartholomew and in failing to award any amount for future medical expenses.

The total amount of plaintiffs medical bills was $6,860.80. The jury awarded $6,400.00. The award, thus, was $460.80 less than the amount of the bills in evidence. The jury verdict did not itemize the amount awarded — the verdict Inform simply had a listing for “Medical Expenses (past, present and future)” — so it is unclear what the award was intended to represent.

Exhibit P-1, a summary of plaintiffs medical expenses, listed the following amounts:

Premier Medical Rehab — Dr. John S. Barrett $5,070.00 Date of Service: 5/8/00 to 1/26/01
Clearview Medical Imaging $1,160.00 Date of Service: 12/11/00
Dr. Bradley Bartholomew $ 439.00 Dates of Service: 2/22/02,11/25/02
Winn-Dixie Pharmacy $ 191.80
TOTAL MEDICALS - $ 6,860.80

Dr. Bartholomew’s bill totaled $439.00, which accounts for most of the difference between the total medicals and the amount awarded, leaving an unexplained additional $21.80 difference.

When no specific findings of fact are issued, appellate courts consider the record as a whole in the light most favorable to the appellee. LeBlanc v. Acadian Ambulance Service, Inc., 99-271 (La.App. 3 Cir. 10/13/99), 746 So.2d 665, 676.

Defendant argues the jury must have believed defendant’s argument that treatment by Dr. Bartholomew was not related to the accident because plaintiff did not see Dr. Bartholomew until a year after his discharge from treatment by his chiropractor. Defendant refers to the court’s jury instructions, which included directives that medical bills should be included in the judgment unless there is reasonable suspicion that the treatment is not related to the accident and that the physician’s opinion is based on the degree of credibility afforded plaintiff, so that if what he told his doctor was not true, that could affect the opinion of the doctor.

Defendant argues that the jury must have agreed with defendant’s theory that Dr. Bartholomew was brought in simply to give an opinion to try to increase the |uvalue of the claim because plaintiffs only two trips to Dr. Bartholomew were on the eve of trial dates. Defendant also argues that because plaintiffs symptoms had resolved at the time of discharge by the chiropractor, if he was symptomatic when he first saw Dr. Bartholomew it could not be as a result of this accident. Defendant asserts the jury’s award indicates they found that plaintiff failed to carry his burden of proof.

A medical condition producing disability is presumed to have resulted from the accident if, before the accident the injured person was in good health, but shortly after the accident the disabling condition manifested itself. Housley v. Cense, 579 So.2d 973, 980 (La.1991). The test for determining a causal relationship between an accident and subsequent injuries is whether the plaintiff has proved through medical and lay testimony that it was “more probable than not” the injuries were caused by the accident. Mart v. Hill, 505 So.2d 1120, 1128 (La.1987).

A tortfeasor is required to pay for medical treatment of his victim, even for overtreatment or unnecessary treatment, unless such treatment was incurred by the victim in bad faith. Orgeron v. Prescott, 93-926 (La.App. 5 Cir. 4/14/94), 636 So.2d 1033, 1041, writ denied, 94—1895 (La.10/28/94), 644 So.2d 654. Absent a showing that the treatment received by plaintiff here was incurred in bad faith, therefore, the jury erred as a matter of law in denying any portion of the cost of past medical treatment to plaintiff. Id.

Even viewing the record in the light most favorable to the appellee, the defendant, we find the jury erred in failing to award the full amount of plaintiffs past medical expenses, because defendant presented no facts to refute the testimony of Dr. Barrett and Dr. Bartholomew, who found the plaintiff credible in |1Bhis complaints of pain and concluded the pain resulted from damage related to plaintiffs May 2000 accident.

With regard to future medical expenses, we find no reason to change the jury’s apparent refusal to award any amount. Dr. Bartholomew testified that degenerative disks grow worse as people age and he stated that if plaintiff continued to have pain in the future, it is more probable than not that he would require future medical care. ' The testimony was hypothetical, however. Hence, we cannot say the jury erred in refusing to award future medical expenses.

Accordingly, we amend the judgment only to increase the award for past medical expenses to the uncontested amount proved by the plaintiff.

DECREE

For the foregoing reasons, the judgment is amended to increase the ahiount for medical expenses to $6,860.80. In all other respects the judgment is affirmed. The parties are each assessed théir own costs for this appeal.

AMENDED AND AFFIRMED.

      . Dr. Bartholomew commented that he interpreted the MRI reading differently than the radiologist as to the levels at which the bulging disks occurred.