author: [JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Harold F. GASSENBERGER.
    No. 02-KA-658.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Ehle & Hesni, Inc., Davidson S. Ehle, III, Gretna, LA, for Appellant, Harold F. Gassenberger.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Alan D. Alario, II, Counsel of Record on Appeal, Assistant District Attorneys, Gret-na, LA, for Appellee, State of Louisiana.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   [JAMES L. CANNELLA, Judge.

Defendant, Harold F. Gassenberger, appeals from his sentence on the offense of possession of cocaine of over 400 grams (Count 1), to thirty years imprisonment and, on the offense of possession of marijuana with intent to distribute (Count 2), to five years imprisonment, both at hard labor and to run concurrently. For the reasons which follow, we affirm.

This is Defendant’s second appeal. On January 16,1997, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with one count of possession of cocaine over 400 grams, in violation of La. R.S. 40:967(F) and one count of possession of marijuana with intent to distribute, in violation of La. R.S. 40:966(A). The Defendant pled not guilty at arraignment.

On April 27, 1998, the trial court denied the Defendant’s motion to suppress the evidence. The Defendant next withdrew his plea of not guilty and entered a guilty plea, reserving his right to appeal the trial court’s denial of his motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976). On May 5, 1998, the trial court sentenced the Defendant to 30 years imprisonment at hard labor on the two offenses.

|3The Defendant appealed, raising as his sole assignment of error the trial court’s denial of his motion to suppress the evidence. Specifically, the Defendant argued that the evidence seized pursuant to the search warrant should have been suppressed because police mischaracterized the confidential informant’s involvement in the investigation to improperly obtain the warrant. This Court affirmed the Defendant’s plea convictions, but vacated his sentence because the trial court erred in imposing only one sentence for both offenses. The case was remanded to the district court for re-sentencing. See, State v. Gassenberger, 99-321 (La.App. 5th Cir.10/26/99), 750 So.2d 1002.

On April 4, 2000, the trial court re-sentenced the Defendant to 30 years imprisonment on Count 1 and five years imprisonment on Count 2, both at hard labor and to run concurrently, in accordance with the plea agreement.

On April 17, 2000, after the five-day appeal delay had run, the Defendant filed a notice of intent to seek writs from the trial court’s April 4, 2000 ruling. The trial court granted the Defendant leave to apply for writs. In his writ application, the Defendant raised as errors the trial court’s denial of his motion to suppress the evidence and the constitutional excessiveness of his 30 year imprisonment sentence. State v. Gassenberger, 00-KH-1269. On July 20, 2000, this Court denied the writ application, ruling as follows:

Relator seeks supervisory review of the April 4, 2000 judgment in which the trial judge re-sentenced him on two criminal convictions that were triable by a jury. See LSAC.Cr.P. art. 782(A); LSA. R.S. 40:966(A) and 40:967(F). Because the appellate jurisdiction of this Court extends to a judgment that imposes sentence in a criminal case triable by a jury, review of the Defendant’s sentences imposed on April 4, 2000 is by appeal. La. Const, of 1974, art. 5 § 10; LSAC.Cr.P. art. 912.1.
However, relator’s appeal rights expired when he failed to move for an appeal within the delays provided by LSA.C.Cr.P. art 914. Relator must seek | ¿reinstatement of his appeal rights in the district court. See State v. Counterman, 475 So.2d 336 (La.1985).

On April 3, 2002, the Defendant filed a timely application for post conviction relief. However, instead of only requesting an out-of-time appeal, he also raised the substantive claim of ineffective assistance of counsel for failure to challenge the trial court’s refusal to require disclosure of the confidential informant. On April 23, 2002, the trial court granted the Defendant an out-of-time appeal under State v. Counterman, 475 So.2d 336 (La.1985). The trial court did not rule on Defendant’s claim of ineffective assistance of counsel on the issues which he raised regarding the disclosure of the confidential informant. This appeal follows.

By his sole assignment of error in this appeal, the Defendant argues that the trial court erred in denying his motion to disclose the identity of the confidential informant by rejecting his argument that the State was required to disclose the identity of the confidential informant that police utilized in their investigation.

Procedurally, this issue is not properly before us in this appeal. Following the original appeal, the convictions were affirmed and the case was remanded for re-sentencing. Thus, the only issues that can be properly raised in this appeal are those regarding the re-sentencing. The Defendant assigns no error concerning the re-sentencing. And, we have found none in our review of the record. Accordingly, we affirm the sentences imposed by the trial court, on Count 1 to 30 years imprisonment at hard labor and on Count 2 to five years imprisonment at hard labor, to run concurrently.

We note that the Defendant did properly raise his claim on the issue of the confidential informant in his post conviction application. However, the trial court did not specifically rule on that claim in its order of April 23, 2002. Therefore, although the appeal from the re-sentencing is final, we remand the case to the trial | fjCourt for a ruling on the substantive issues raised in the Defendant’s April 3, 2002 post-conviction application.

It is noted that the Defendant has requested an errors patent review. This Court performed an errors patent review of the original record in this case at the time of Defendant’s first appeal, so Defendant is only entitled herein to an errors patent review of the record on re-sentencing. See, State v. Taylor, 01-452, p. 10 (La.App. 5th Cir.11/14/01), 802 So.2d 779, 783; State v. Alberto, 95-540, p. 23 (La.App. 5th Cir.11/28/95), 665 So.2d 614, 625, writs denied, 95-1677 (La.3/22/96), 669 So.2d 1222; 96-0041 (La.3/29/96), 670 So.2d 1237.

The record on re-sentencing was reviewed for errors patent. La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5th Cir.1990). We note the following two errors requiring remand for correction of the minute entry/commitment.

The record shows that, as to Count 1, the Defendant pled guilty to possession of cocaine over 400 grams. The minute entry/commitment, however, states that the Defendant pled guilty to possession with intent to distribute over 28 grams of cocaine. Additionally, the record show that, as to Count 2, the Defendant pled guilty to possession of marijuana with intent to distribute, but the minute entry/commitment states that the Defendant pled guilty to distribution of cocaine. It is also noted that the sentencing transcript is dated April 4, 2000, whereas the commitment is dated April 3, 2000. When there exists a conflict between the transcript and the commitment, the transcript controls. State v. Lynch, 441 So.2d 732 (La.1983). Therefore, this matter is remanded to the trial court for the limited purpose of correcting the commitment to conform to the transcript, designating the proper offenses to which the Defendant pled guilty and the proper commitment date.

|fiFor the foregoing reasons, we affirm the Defendant’s sentences to 30 years imprisonment at hard labor on Count 1, and five years imprisonment on Count 2, to run concurrently. The appeal is considered final. Further, the matter is remanded to the trial court to rule on the Defendant’s outstanding post-conviction claims, filed on April 3, 2002, on which the trial court has not yet ruled, and to correct the minute entry/commitment.

SENTENCES AFFIRMED. CASE REMANDED.

      . While the court reporter’s affidavit bears the date April 4, 2000, the commitment is dated April 3, 2000.


source: Caselaw Access Project

author: | JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    In re SUCCESSION OF Brian WALKER.
    No. 02-CA-625.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.
    Writ Denied March 28, 2003.

      Kent B. Ryan, Lemle & Kelleher, L.L.P., New Orleans, LA, for Appellants, Memco Barge Line, Inc., Memco Barge Line 1998 and Continental Insurance Company.
    Harold E. Molaison, Adrian F. Lapey-ronnie, III, Molaison & Greenberg, Gret-na, LA, for Appellee, Succeson of Brian Walker.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | JAMES L. CANNELLA, Judge.

Memco Barge Line, Inc., Memco Barge Line 1998 Trust and Continental Insurance Company (Memco), Defendants in a wrongful death and survival tort action filed in Orleans Parish Civil District Court, appeal from a judgment of filiation rendered herein, finding that Brian Walker, the decedent, was the father of seven minor children, namely, Brian Joseph Lewis, Brinton Jones, Britney Jones, Brindell Dorsey, Brandon Dorsey, Braneshia Dorsey and Kewanda Smith (the minor children). For the reasons which follow, we grant the exception of no right of action filed on behalf of the succession and dismiss the appeal.

In the history of this case, the decedent died on January 15, 2000 when he fell overboard into the Mississippi River while working as a longshoreman for Memco. On January 21, 2000, a wrongful death and survival action was filed in Orleans Parish Civil District Court on behalf of the minor children and the Estate of Brian Walker. Plaintiffs in the tort suit made no express allegations of illegitimacy or filiation.

|3On April 6, 2000, this suit was filed by Michael Walker, the brother of the decedent, with a Petition for Appointment of Provisional Administrator. The petition alleged that “the heirs, as in the Affidavit of Death and Heirship” have requested that a provisional administrator be appointed. The Affidavit of Death and Heir-ship, stated that “Brian Walker had seven minor children, namely: Brian Joseph Lewis, Brinton Jones, Britney Jones, Brin-dell Dorsey, Brandon Dorsey, Braneshia Dorsey and Keywanda Smith.” A Detailed Descriptive List was also filed providing that the only succession asset was an “Interest in the proceeds of a wrongful death action filed on behalf of the deceased, Brian Walker, by all of the heirs of the deceased against TransOcean Terminal Operators, Inc., MEMCO Barge Line, Inc., Electric Fuels Corporation, Florida Progress Corporation and Stevedores, Inc.” Other than the filing of the Oath and the Letters of Administration on April 18, 2000, no further action was taken in the succession proceedings until March 19, 2002.

Meanwhile, in the Orleans Parish tort action, on April 9, 2001, over a year after the decedent’s death, Memco filed an Exception of No Right of Action, No Cause of Action and Improper Venue. The no right of action, no cause of action exceptions were grounded on the fact that the children had not timely petitioned for filiation and thus were not proper parties in the tort action. On July 11, 2001, following a hearing, the trial court rendered judgment granting the exceptions of no right of action and no cause of action and dismissed the claims against the defendants with prejudice. In a motion for new trial, the plaintiffs argued that the filiation had been commenced in the succession proceedings. The trial court denied the motion for new trial. In subsequent reasons for judgment, the trial court found that, under La. C.C. |4art. 209, filiation to the alleged deceased parent must be established within one year of the death and plaintiffs failed to file a filiation action within one year of the decedent’s death and thus are barred from establishing filiation and have no right of action. That judgment is presently on appeal to the Fourth Circuit Court of Appeal.

On March 19, 2002, in this proceeding, over two years after the accident in question, Michael Walker filed an “Amended and Supplemental Petition” in which he alleged filiation on behalf of the minor children and sought an order of filiation. Following a contradictory hearing in which proof of the relationship between the decedent and the seven children was presented, a filiation order was signed on March 28, 2002, finding that the seven minor children were the children of the decedent. On May 24, 2002, a Petition for Appeal was filed by Memco.

On appeal herein, Memco argues that the filiation judgment rendered on March 28, 2002, over two years after the death of the decedent, was erroneously rendered because La. C.C. art. 209 requires, as applicable to this case, that such action be instituted within one year of the death of the alleged parent.

The succession representative filed an Exception of No Right of Action in this Court, arguing that the appeal should be dismissed because Memco has no right to bring that appeal from the judgment of filiation. The succession representative also argues, on the merits, that the filiation judgment was properly rendered. It is argued that the filing of the succession proceedings constituted the timely institution of the filiation action by the reference therein to the seven minor children, by name, as the heirs of the decedent. The succession relies on the case of In the Matter of the Succession of Stevenson, 492 So.2d 100 (La.App. 1st Cir.), writs denied, 494 So.2d 1178 (La.1986), in [ 5support of its argument. The court in Succession of Stevenson held that the filing of a request for appointment as provisional administratrix of decedent’s succession by the alleged child of the deceased constituted a civil action to establish filiation.

We do not reach the merits of the appeal because we find merit in the argument by the succession representative that Memeo has no right to appeal herein and that the appeal must be dismissed.

La C.C.P. art.2086 provides that “[a] person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” The object of an appeal is to give an aggrieved party to an action recourse to a superior tribunal for the correction of a judgment of an inferior court, and such right is extended not only to the parties to the action in which the judgment is rendered, but also to a third-party when such party is allegedly aggrieved by the judgment. Piper v. Central Louisiana Elec. Co., 437 So.2d 997 (La.App. 3rd Cir.1983). Thus, Memeo has the right to prosecute this appeal, if it would have had the right to intervene in the succession proceedings in district court.

La. C.C. art. 1091, authorizing interventions in a pending action, provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

| (¡Recently, in the case Interdiction of Campbell, 01-0863 (La.App. 5th Cir.1/15/02), 807 So.2d 908, writs denied, 02-0499 (La.2/27/02), 810 So.2d 1148, this court considered the question of whether a tortfeasor could intervene in the interdiction proceeding involving the tort victim. Therein, we outlined the jurisprudential requirements for intervention, stating:

Jurisprudentially, we have held that the requirements for intervention are twofold: the intervenor must have a jus-ticiable interest in, and connexity to, the principal action, and the interest must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights. Atchley v. Atchley, 97-474 (La.App. 5th Cir. 1/14/98), 707 So.2d 458, 459. A “justiciable interest” is defined as “the right of a party to seek redress or a remedy against either [the] plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it.” The right, if it exists, must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights. Id.; Amoco Prod. Co. v. Columbia Gas Trans. Corp., 455 So.2d 1260, (La.App. 4th Cir.1984).

Id. at p. 5, 807 So.2d at 910.

In Campbell, this court held that the interdiction action was a personal action brought by Brian Campbell’s wife to eliminate the capacity of Brian Campbell to make a juridical act. The interest of an alleged tortfeasor did not provide adequate connection with the principal issue in the interdiction. In other words, we held that the alleged tortfeasor did not have a justi-ciable interest that was so related or connected to the facts of the principal demand, (the interdiction), that judgment on the principal demand would have a direct impact on the tortfeasors rights.

We find the principles of the Campbell case applicable here. The principal action of this succession case is to determine who are the heirs and who is entitled to inherit any property of which the decedent died possessed. |7It is a personal action brought by the brother of the deceased to determine the rightful heirs of the decedent’s estate. Memco, as a possible tort-feasor, does not have a direct justiciable interest that is related or connected to the object of the principal action in the succession. Under the law and jurisprudence, we find that the interests of Memco, as concerns the contingent personal injury litigation, simply does not provide it with an adequate connection with the principal action in the succession proceeding, that is, a determination of the rightful heirs of the decedent and the property of which he died possessed. We find that Memco would not have had a right to intervene in the succession proceeding in the district court and, therefore, they have no right to pursue this appeal of a succession judgment.

Memco argues that, under the peculiar circumstances of this case, where the deceased tort victim has no legitimate descendants, a judgment precluding the filiation of the deceased’s illegitimate descendants will have an effect on Mem-co’s rights by precluding a wrongful death and/or survival action against it. While we are mindful of the peculiar circumstances of this case, where the decedent has no legitimate descendants and precluding the filiation of his illegitimate descendants could inure to the benefit of an alleged tortfeasor, we are not persuaded that this is the proper perspective from which to view the issue presented. Rather, we find that the issue before us is broader than Memco would have us view it. The issue before us is whether a party, who is a potential tortfeasor or alleged tortfeasor of the decedent, has a right to intervene in the succession proceedings of the decedent where the principal issue in the succession concerns a determination of who are the rightful heirs of the decedent. For the reasons set forth above, we find that |sthe alleged tortfeasor does not have a justiciable interest in the succession proceedings of the deceased tort victim.

Accordingly, we grant the Exception of No Right of Action filed by the succession representative in response to the appeal filed by Memco, who was not a party to the succession proceedings in the district court and, hereby, order the appeal dismissed. Costs of appeal are assessed against Memco.

EXCEPTION GRANTED, APPEAL DISMISSED.

      . We note that the spelling of this child's name is different in various documents, but they refer to the same person.

      . The exception of improper venue was found to be moot.

      . The tort case against Memco filed in Orleans Parish was dismissed with prejudice and is presently on appeal.


author: J^JAMES L. CANNELLA, Judge.

text:
    Johnell SMITH v. HANSEN’S SEAFOOD DOCK and Louisiana Workers’ Compensation Corporation.
    No. 02-CA-711.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Amanda H. Carmon, Baton Rouge, LA, for Appellants, Hansen’s Seafood Dock and Louisiana Workers’ Compensation Corporation.
    Alexandra E. Mora, New Orleans, LA, for Appellee, Johnell Smith.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   J^JAMES L. CANNELLA, Judge.

The Defendants, Hanson’s Seafood Dock (Hanson) and Louisiana Workers’ Compensation Corporation (LWCC), appeal a workers’ compensation judgment in favor of the Plaintiff, Johnell Smith. We affirm.

On June 1, 2000, the Plaintiff was working as a laborer for Hanson, unloading shrimp from boats to containers on Hanson’s dock in Port Sulphur, Louisiana. Hanson purchased the shrimp from the fishermen and resold it to local processors. The Plaintiff had been performing this work for approximately two weeks when he injured his back lifting a 100-pound ice chest with another worker. He informed Chris Hanson, who sent him to perform lighter work the rest of the day. When he returned the next day, the Plaintiff was still in pain. Hanson referred him to Dr. Russell Rawls who told Hanson that the Plaintiff was unable to work for a week. When the Plaintiff did not improve during that time, he referred him to Dr. Mark Juneau, an orthopedic doctor. On June 12, 2000, Dr. Juneau found the Plaintiff to be temporarily and totally disabled (TTD). On June 19, 2000, Dr. Juneau released the Plaintiff to light duty work. He was paid benefits for 18 days in the amount of $293.34, or $114.07 per week. He resumed work on July 11, 2001 and was paid $186.67 per week. His restrictions included a maximum weight lifting of 30 pounds and no ladder climbing. However, on that same day, the 1¡¿Plaintiff was arrested and subsequently incarcerated. His benefits were discontinued.

On March 26, 2001, the Plaintiff filed a Disputed Claim for Workers’ Compensation to recover the benefits that had been discontinued when he was sent to prison. On May 24, 2001, the Plaintiff was released from prison. He resumed medical treatment for his back and his workers’ compensation benefits were reinstated on July 11, 2001. He was paid $186.67 per week. The Plaintiff subsequently chose his own orthopedic surgeon, Dr. Kenneth Adatto. In January of 2002, Dr. Adatto recommended back surgery. The request was denied.

On February 6, 2002, the trial was held. The workers’ compensation judge found that the Plaintiff is entitled to all medical and transportation expenses resulting from the accident, that he is entitled to TTD benefits from May 24, 2001 until the present, that his average weekly wage was $430, that he forfeited benefits during his incarceration, that he failed to prove that his wife and child depended on him for support, that the surgery recommended by Dr. Adatto was reasonable and necessary, and that the Defendants were arbitrary and capricious in incorrectly calculating the benefits and for refusing to authorize the surgery. She awarded the Plaintiff $2,000 for penalties and $2,000 for attorney’s fees.

On appeal, the Defendants contend that the workers’ compensation judge erred in calculating the Plaintiffs wages, in awarding benefits from May 24, 2001, in finding them arbitrary and capricious and awarding penalties and attorney’s fees.

The appellate court’s review of the workers’ compensation judge’s findings of fact is governed by the manifest error or clearly wrong standard and will not be disturbed absent such a finding. Campbell v. Gootee Const. Co., 99-913, p. 9 (La. 5th Cir.1/12/00), 756 So.2d 449, 453.

j^WAGES

The Defendants assert that the trial judge erred in calculating the Plaintiffs wages because he was a seasonal employee and his wages are calculated under La.R.S. 23:1021(10)(v)(aa)(bb). They contend that his wages are lower under this formula, but they do not state the figure that they contend should have been used to calculate the disability wage benefits. Under the statute, a seasonal employee is paid as follows:

v) For an employee in seasonal employment, his annual income divided by fifty-two.
(aa) For purposes of this Subpara-graph, seasonal employment shall be any employment customarily operating only during regularly recurring periods of less than forty-four weeks annually.
(bb) If the employee was not engaged in the seasonal employment more than one year prior to the accident, his annual income shall be the average annual income of other employees of the same or most similar class working in the same or most similar employment for the same employer or, in the event that the employee was the only individual engaged in that specific employment, then his annual income shall be the average annual income of other employees of the same or most similar class working for a neighboring employer engaged in the same or similar employment.

At trial, Chris Hanson testified that shrimp fishing is seasonal. He stated that there are two shrimp fishing seasons, the brown shrimp season is from May to June and the white from August until the beginning of November. Chris Hanson testified that he paid the Plaintiff twice before the accident and that the Plaintiffs base pay was $5.15 per hour. Hanson paid cash bonuses when he made a profit. In the Plaintiffs first paycheck dated May 27, 2000, his gross pay was $200.85. He also received a cash bonus of $165. On June 3, 2000, his gross pay was $319.30, with a bonus of $175. The workers’ compensation judge apparently divided the total of $365.85 | >¡($200.85 + $165.00) and $494.30 ($319.30 + $175.00) to arrive at a weekly wage of $430.

Clearly this is seasonal work. However, the Plaintiff had not worked in the shrimp seasonal industry prior to working for Hanson and there is no annual history to base wages on. In that case, the statute states that the wages are to be calculated based on workers similarly employed in that work for the same employer or another employer in the same industry. There was no evidence presented at trial of the annual wages of similarly employed workers in either Hanson’s employ or any other employer doing the same work. Thus, we find that the workers’ compensation judge did not err in using the wages which the Plaintiff received for his two weeks of employment as a seasonal shrimp industry worker to calculate his base wage.

TEMPORARY TOTAL DISABILITY

The Defendants assert that the workers’ compensation judge erred in finding that TTD benefits were due from May 24, 2001, the date that the Plaintiff was released from prison, rather than July 11, 2002, the date the Defendants were informed by the doctor that the Plaintiff was disabled. The workers’ compensation judge apparently believed that the Plaintiffs condition worsened during his time in jail. The Plaintiff testified that very little medical care was available to him during his incarceration. Since there was no allegation or evidence that there was an intervening cause of this disability, we find no error in her determination that the benefits are due from the date of his release from prison.

In respect to his incarceration, the Plaintiff argues that he was entitled to benefits during that period because he was supporting his wife and ^daughter. See: La.R.S. 23:1201.4. However, we cannot address this issue because the Plaintiff failed to cross-appeal or file a formal answer to the appeal. See: La.C.C.P. art. 2121; C.C.P. art. 2133.

PENALTIES AND ATTORNEY’S FEES

La. R.S. 23:1201 F provides for the imposition of penalties and attorneys fees when indemnity or medical benefits due to the claimant are not paid timely. However, under R.S. 23:1201 F(2), this does not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control. In order to reasonably controvert a claim, a defendant must have some valid reason or evidence upon which to base his denial of benefits. Brown v. Texas-La Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. Thus, the court must determine whether a defendant is engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Id. The assessment of penalties and attorney’s fees by the worker’s compensation judge is a factual question, which will not be disturbed on appeal in the absence of manifest error. Campbell, 99-913 at p. 9, 756 So.2d at 453.

In this case, the claim for surgery was not reasonably denied. The only explanation for denying the authorization for surgery by the claims adjuster was that she or the insurer was waiting for Dr. Juneau’s opinion after an examination that had been scheduled on January 30, 2002. However, the authorization was denied, not postponed, pending receipt of this information. In addition, although the claims adjuster testified that the insurer wanted an IME, it had not formally filed a request as required by the statute, nor did it file a motion for continuance. In addition, the Plaintiff had been totally disabled for at least six months and had been diagnosed by a magnetic resonance imaging test with a herniated disc in July 17of 2001. Thus, there was no basis to refuse the surgery at the time it was requested. In addition, the workers’ compensation judge correctly determined the wage base for the award of wage benefits. Furthermore, the Defendants fail to reasonably explain why the Plaintiff was paid different indemnity amounts or how the Defendants arrived at the amounts that they paid ($114.07 for 18 days until his incarceration and $186.67 per week starting in July of 2001). Thus, the Defendants failed to show that the refusal for surgery - and the indemnity amounts were reasonably controverted. Thus, we find no manifest error in the awards for penalties and attorney’s fee awards.

Accordingly, the judgment of the workers’ compensation court is hereby affirmed. Costs of this appeal are to be paid by the Defendants.

AFFIRMED.

      . The total is actually $430.37.


author: I,JAMES L. CANNELLA, Judge.

text:
    Margery MILLS, et al v. Henry JAUME, et al. Henry Jaume, v. The Estate of Allen R. Mills, Deceased; Through Administrators/Executors of the Estate of Allen R. Mills, Margery Mills and John Mills.
    Nos. 02-CA-668, 02-CA-669.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Joseph M. Bruno, David S. Scalia, New Orleans, for Appellants Margery Mills, et al.
    James L. Donovan, Jr., Donovan & Lawler, Metairie, for Appellees Johnny Morgan and Allstate Insurance Company.
    Edward F. Kohnke, IV, James H. Brown, Jr., Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, for Appel-lees Henry Jaume, The City of Kenner, and United States Fidelity & Guaranty Company.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   I,JAMES L. CANNELLA, Judge.

Plaintiffs, Margery Mills and John Mills, individually and on behalf of their deceased son, Allen Mills, appeal from the dismissal of their suit against Kenner police officer Henry Jaumé (Jaumé), the City of Kenner (Kenner), United States Fidelity & Guaranty Company (USF & G), Johnny R. Morgan (Morgan) and Allstate Insurance Company (Allstate). We amend to include cross-claims and the State and affirm as amended.

On August 24, 1995 at approximately 11:00 p.m., while walking intoxicated across Airline Drive in Kenner near the entrance to the Louis Armstrong International Airport, Allen Mills was struck by two vehicles. He was intoxicated at the time. Jaumé was driving the first car. The second was a pick-up truck driven by Morgan. Allen Mills died at the scene following the second impact.

The Plaintiffs filed suit on July 22, 1996. On August 16, 1996, Jaumé filed a separate suit against the Estate of Allen Mills for his alleged injuries. Morgan and Allstate filed a cross-claim against Jaumé, Kenner, USF & G, and DOTD. Jaumé, Kenner, and USF & G filed a cross claim against Morgan, Allstate, DOTD, 13and the State. Next, a motion for a jury trial was filed and granted to Morgan and Allstate. In 1997, the two suits were consolidated. Prior to trial, the trial judge granted Ken-ner’s motion to strike the jury as to Ken-ner and Jaumé, but denied it as to Ken-ner’s excess insurer, USF & G.

Both cases were tried on November 27, 28, 29 and December 1, 2000. Following trial, the jury returned a verdict finding that Morgan was negligent, but his negligence was not the proximate cause of the accident, and that Jaumé was not negligent. On January 8, 2001 the trial judge rendered a verdict that Jaumé was not negligent and dismissed the case against all of the Defendants, except the State, and Jaumé’s case against the Estate of Allen Mills. There is no resolution of liability as to the State, or of the cross-claims, which we will address by amending the judgment.

The Plaintiffs filed a motion for Judgment Withstanding the Verdict (JNOV), or New Trial on January 16, 2001. The motions were denied on August 7, 2001.

On appeal, the Plaintiffs assert that the trial judge erred in denying the motion for JNOV and the motion for New Trial.

The Plaintiffs argue that both Jaumé and Morgan were at fault and that their fault proximately caused the accident. They contend that both drivers were speeding and allowed themselves to be distracted from the roadway by the actions of a witness, Keith Traylor (Traylor). The Plaintiffs contend that because Jaumé and Morgan failed to see what they should have seen, they breached their duty of care to Allen Mills, a pedestrian, and that the breach was the proximate cause of the accident.

The Defendants respond that the JNOV and motion for new trial were properly denied because Allen Mills’s conduct was the proximate cause of his own injuries. They assert that he failed to take any care for his own safety. He waspwearing dark clothing, was intoxicated, crossed the highway slowly, did not look in either direction for on coming traffic, and failed to use a nearby crosswalk or wait for the traffic signal to turn red. Thus, the Defendants assert that the jury and trial judge properly found neither driver liable.

JNOV

La.C.C.P. art. 1811 sets out the procedures for a JNOV. It may be granted on the issue of liability alone, damages or both. C.C.P. art. 1811F. A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict, not merely when there is a preponderance of the evidence for the mover. Joseph v. Broussard Rice Mill, Inc., 00-0628, p. 8-9 (La.10/30/00), 772 So.2d 94, 99. In Joseph, the Court explained:

The motion should be denied if there is evidence opposed to the motion, which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that “when there is a jury, the jury is the trier of fact.”

Joseph, 00-0628 at p. 8-9, 772 So.2d at 94, 99.

The factors to be considered in weighing the degree of fault assigned by the jury include “whether the conduct resulted from inadvertence or involved awareness of the danger, how great a risk was created by the conduct, the significance of what was sought by the conduct, the capacities of the actors, whether superior or inferior, and any extenuating circumstances which might require the actor to proceed in haste, without proper thought.” Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 974 (1985); Joseph, at p. 23, 772 So.2d at 103.

The Plaintiffs assert that Jaumé should have been found negligent. He was | ¿familiar with and had seen pedestrians crossing the highway in that area. Although he stated that he did not see Allen Mills until he was in front of the car, he testified that he was “looking in all lanes” and just “didn’t see him.” They contend that Morgan’s negligence was also a proximate cause of the accident. Both he and Jaumé testified that they were distracted from looking at the road by Traylor’s car, which was getting ready to enter the highway from the U.S. Park parking lot on the right side of the highway. Morgan’s attention to the road was further diverted when he saw Traylor running toward the highway. Furthermore, they argue that a finding of negligence and proximate cause is supported by the testimony of their expert, Oscar Franklin Griffith (Griffith), who concluded that the drivers could have avoided hitting Allen Mills, had they been traveling at the speed limit.

Jaumé testified that he was traveling in the right lane toward the traffic light at the entrance to the airport, after turning onto the highway from a road under the nearby overpass. He estimated his speed at 40 mph. As he approached the traffic light, it was red. He eased off the accelerator, causing the car to slow down. The light turned green before he stopped, so he accelerated. He estimated his speed then as 40 to 45 miles per hour (mph), but did not know for sure. He thought it could have been slower because he had slowed for the red light and accelerated when it turned green. As he passed the traffic light, he approached U.S. Park on the right side. As he was looking ahead, he saw with a glance that a car was moving toward the highway to exit the parking lot. He slowed down in case it pulled in front of him. As his eyes returned to the road, he saw an object close by on the left side of his lane of travel. Jaumé immediately turned his steering wheel hard to the right to avoid striking, what he later realized was, a person. His vehicle left the road and struck a fire hydrant located on the adjacent property. He almost missed Allen Mills, but his left rear tire area knocked him to the ground. As soon as the car came to a stop, Jaumé flipped on the police lights, got out to go to the | ¿man, and called for police assistance through his shoulder mike. Jaumé testified that Allen Mills was lying on the ground, but his head and shoulders were bobbing up and down in what appeared to be an effort to get up. Before Jaumé could stop traffic or provide any assistance, Morgan’s truck struck the man.

Morgan testified that he was traveling east in the right lane. He drove over the overpass near the airport. He did not see the first accident. As he approached the accident area, his view of the road was diverted to the U.S. Park drive where he saw a car at the end of the driveway and a man running toward the highway. When he looked back at the road, he saw Allen Mills on his hands and knees. Morgan slammed on his brakes, but was unable to miss hitting the fallen man. He told the investigating officer that he was traveling between 45 and 48 mph. Morgan testified that he never saw the man until right before he hit him.

The speed limit in the area was 40 mph. Morgan’s expert, Michael Sunseri stated that speed was not an issue because even at 40 mph, Morgan would not have had time to avoid Mills. Jaumé testified his speed was between 40-45 mph, but that he could have been moving slower when he struck Mills since he had slowed down for the red light and only accelerated after it turned green. The distance between the light and the contact point was approximately 125 feet. In addition, the Plaintiffs expert accident reconstruction expert, Griffith, stated that his conclusion that Jaumé was speeding was only a possibility because there was no evidence (other than speculation) that he was traveling over the speed limit.

The uncontradicted evidence shows that the accident occurred around 11:00 p.m. on a section of Airline Drive that had ambient light from adjacent motels, the airport, and other businesses, but was not brightly lit. The evidence further shows that Allen Mills was wearing blue jeans, a black shirt, a black cap and he was legally intoxicated. Traylor testified that the roadway was “very dark.” Because it was so dark, he was amazed that Vina Criscuolo (Criscuo-lo), another witness, was 17able to see Allen Mills prior to the accident. The investigator’s photographs are inconclusive because, although they show a very dark background, the camera flash could account for the intense darkness shown in the pictures.

Criscuolo, an eyewitness who watched Allen Mills cross the highway, also said that he was “hard to see.” It was at least one minute before she noticed him crossing in front of her on Airline Drive. Cris-cuolo was stopped at the traffic light at the entrance to the airport waiting for the green signal to turn left into the airport road. During the time she was stopped, she watched Allen Mills cross the roadway and saw the two cars strike him. Criscuo-lo testified that he did not use the crosswalk or cross by the traffic signal. He crossed from an area with no sidewalk and near’ a sign that said “Danger Pedestrians Not Allowed In This Area.” Plaintiffs’ expert, characterized this area as hostile to pedestrians.

According to Criscuolo, Allen Mills was moving “very slowly” when he walked from the airport side of the road on the north to the south side. She described his pace as “almost slower than leisurely.” In addition, she said that he kept his head down as he walked and that he never once looked up to watch for on-coming traffic. Criscuolo said that Allen Mills walked in a straight line and did not stagger. She thought at the time that he was placing himself in jeopardy of being struck because he was hard to see in his dark clothing and was acting totally oblivious to his surroundings. She said that the traffic light was green for oncoming traffic the whole time that he was walking across the traffic lanes. Griffith even noted that had Allen Mills looked up, he would have seen the oncoming headlights in time to step back. Criscuolo was able to observe the entire episode because her signal light was red during these events. Criscuolo thought that the police officer did everything he could to avoid the accident. She estimated that Jaumé’s speed was below the speed limit.

Traylor was waiting to drive out onto the Airline Boulevard from U.S. Park |swhen the accident occurred. He was not sure if he saw Allen Mills before the accident, but he did see the police car strike him. Because he was at a dead stop, he did not know if Jaumé was speeding, but waited to pull out because Jaumé was going too fast for Traylor to pull out safely. He did not see Allen Mills until just before the impact when his attention was caught by Jaumé’s swerving maneuvers, despite the fact that he had looked left and right preparing to enter the roadway. After Allen Mills was hit, Traylor immediately got out of his car and started to run toward him, who had been knocked to the ground, but was attempting to get up. He also saw the second car strike him before any warning could be given to oncoming traffic.

A third witness, Craig Gomez, was also in the parking lot of the U.S. Park. However, his testimony at trial was inconsistent with his statements at the accident to the investigating officers. Right after the accident, he gave a statement in which he said that he did not see Jaumé’s car until it passed in front of him at U.S. Park. He estimated that was only 50 to 60 feet from the impact. He further stated that he did not see Allen Mills until “after the police car struck him.” At trial, he testified that he watched the progress of Jaumé’s vehicle as it traveled down the highway from the other side of the traffic light at a speed of 50 mph. He also testified that he watched him cross the street.

In the hearing for the JNOV and new trial, the trial judge stated that the case could have gone the other way, with fault being apportioned to the two drivers, and Allen Mills. Thus, he concluded that the standards for the JNOV and the new trial were not met. He provided no reasons for his judgment as to Jaumé and Kenner with the initial judgment, and his conclusions as to those Defendants were not mentioned in the hearing. Nevertheless, after our review we find that the trial judge did not err in denying the JNOV. In this case, the facts and inferences do not point so strongly and overwhelmingly in favor of the Plaintiffs and reasonable ^persons could arrive at the jury’s verdict (a contrary verdict from the one that the Plaintiffs assert should have been rendered).

NEW TRIAL

La. C.C.P. art.1972 provides:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

When a motion for new trial has been filed following a jury trial, the trial judge may evaluate the evidence without favoring either party. Joseph, 00-0628 at pp. 14-15, 772 So.2d at 104. The trial judge may draw its own inferences and conclusions, and evaluate witness credibility to determine whether the jury had erred in giving too much credence to an unreliable witness. Id. The applicable standard of review in such matter is whether the trial court abused its discretion. Joseph, 00-0628 at p. 15, 772 So.2d at 104.

The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact-finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence.

Gibson v. Bossier City General Hospital, 594 So.2d 1332, 1336 (La.App. 2nd Cir. 1991). See also: Davis v. Wal-Mart Stores, 00-0445, p. 10, (La. 5th Cir.11/28/00) 774 So.2d 84, 93.

In this case, the Plaintiffs alleged that the new trial should be granted because the verdict was contrary to the evidence. We disagree and find that the verdict was reasonable in light of the conduct of Allen Mills. He exercised no care whatsoever for his own safety. Given the circumstances that faced Morgan as he approached the scene of the first impact, the jury’s finding that Morgan’s negligence was not a proximate cause of the accident is “supportable by any fair interpretation of the evidence.” Thus, we find that the trial judge did not err in denying the motion for new trial as to the jury verdict.

The jury only determined the liability of Morgan, although the negligence of Jaumé also was presented to the jury for it to apportion fault among all possible tortfeasors. The trial judge acknowledged prior to and during trial that he would determine the liability of Jaumé and Ken-ner. However, he did not give reasons for finding Jaumé not negligent. In the hearing for the JNOV and motion for new trial, the parties appeared to focus only on the jury findings in regard to all of the Defendants. On appeal, the Plaintiffs argue that the trial judge failed to make an independent assessment of Jaumé’s fault and simply adopted the jury’s findings. Because he was the factfinder as to Kenner and Jaumé, the Plaintiffs are correct that the trial judge should have reached an independent decision. However, it is not clear from the record that he did not do so. Assuming arguendo that he simply adopted the jury’s conclusion, we reviewed the evidence de novo and find no basis to grant a new trial. Because the evidence here could have been viewed in two ways, the Plaintiffs did not prove by a preponderance of the evidence that Jaumé was negligent, or that his negligence, if any, proximately caused the accident. Thus, we find that the trial judge did not err in denying the motion for new trial.

| -i iAccordingly, we amend the judgment to dismiss the State of Louisiana, and to dismiss the cross-claims filed by Morgan and Allstate and the cross-claim filed by Jaumé, Kenner, and USF & G. The judgment of the trial court is otherwise affirmed as amended. Each party is to bear their own costs of this appeal.

AFFIRMED AS AMENDED.

      . The Parish of Jefferson (Jefferson), the Louisiana Department of Transportation and Development (DOTD), and the State of Louisiana (the State) were also sued. The Parish and DOTD were dismissed prior to trial.


author: J2THOMAS F. DALEY, Judge.

text:
    Keith BALLAS v. KENNY’S KEY WEST, INC.
    No. 02-CA-684.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Mitchell J. Hoffman, Kermit L. Roux, III, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, Attorneys for Defendant/Appellee.
    Eric M. Daigle, New Orleans, LA, Attorney for Plaintiff/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and MARION F. EDWARDS.
   J2THOMAS F. DALEY, Judge.

The plaintiff, Keith Balias, has appealed the trial court judgment in favor of the defendant, Kenny’s Key West, Inc. For the reasons that follow, we affirm.

FACTS:

Plaintiff filed suit against the defendant alleging that he slipped and fell in a puddle of water that was leaking from a container used by defendant to cool beer. He alleged strict liability on the part of defendant. Defendant answered with a general denial and claimed plaintiffs injuries were caused by his own negligence. The plaintiff was an engineer and subcontractor for The Sound Source, a concert production company that was contracted to provide sound for music at defendant’s place of business, a lounge in Jefferson Parish. Part of plaintiffs responsibilities in preparation for a concert were to bring in and set up all sound equipment and dismantle and remove the equipment after the concert. Plaintiff testified that on the 1 anight of August 20, 1997, as he was taking down a speaker cabinet with the help of a co-employee, his right leg slipped out from under him causing him to fall on his left knee. When asked what may have caused his accident, plaintiff testified that he noticed water on the floor. He explained that his pants were damp and there was water on his boots. Plaintiff testified that there was a large metal tub from which the defendant was selling cold beer about six to eight feet from the location of the speaker cabinet. He testified that he never saw anyone mop or inspect the area around the tub during the entire night. He further testified that there was no nonskid material around the tub, nor was he given any warning of a dangerous condition by the defendant’s employees. Plaintiff testified that he reported the accident to Linda Milto, a manager of Kenney’s Key West, on the night of the accident. He sought medical treatment and was diagnosed as having a partially torn ligament in his knee.

On cross-examination, plaintiff testified that he did not recall looking around before taking down the speaker. He further testified that he had no idea how long the water had been on the floor. He explained that had he looked down he would not have been able to see the water because it was too dark.

Linda Milto testified that she had worked at Kenney’s Key West for eight and a half years. She explained that the policy at the lounge regarding spills was for all employees to report any spills. There are mops, as well as wet floor signs, to be used in the event of a spill. She testified that there are two employees stationed in the concert room and it is their job to constantly walk the floor. Ms. Milto was not aware of any spills on the night of August 20, 1997. She testified that the beer tubs did not leak that night. She testified that the beer tub sits on a wooden block that sits on top of carpet. Ms. Milto testified that the person working the beer tub would call management or the bar back if there was a problem with condensation around the floor of the Lbeer tub. She denied that plaintiff reported his accident to her on the night that it occurred; rather she stated that she became aware of plaintiffs accident at a later date.

At the conclusion of the trial, the trial judge found no liability on the part of defendant. This timely appeal followed.

LAW AND DISCUSSION:

On appeal, the plaintiff argues that the trial court erred in applying R.S. 9:2800.6 to this case because the defendant’s establishment does not fit the definition of “merchant” within the statute.

R.S. 9:2800.6 sets forth plaintiffs burden of proof in order to recover for injuries sustained in a slip and fall accident stating:

B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing or on a merchant’s premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:
1. The condition created an unreasonable risk of harm to the claimant and that the risk of harm was reasonably foreseeable.
2. The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
3. The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care ...
B. Definitions:
1. “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the | Bmerchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
2. “Merchant” means on whose business is to sell goods, foods, wares, or merchandise at a fixed place of business.

Plaintiff contends that the defendant’s establishment does not sell goods, food, wares, or merchandise, like a typical retailer or restaurant, and that the conditions inside the establishment on the night of the accident were not similar to those inside of a retailer or restaurant. While we agree with plaintiff that the conditions inside defendant’s establishment are not similar to those of a typical retailer, we nevertheless find that R.S. 9:2800.6 does apply to this situation. Under the broad definition of merchant, defendant’s establishment sells goods and food at a fixed place of business. Additionally, in Nuccio v. Robert, 99-1327 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, this court analyzed the plaintiffs burden of proof in a slip and fall that occurred at a bar under the provisions of R.S. 9:2800.6.

Plaintiff next argues that if R.S. 9:2800.6 applies, he met his burden of proof. In support of his position, plaintiff states that defendant served beer from tubs in a manner that created a dangerous condition that would reasonably be expected to cause injury to plaintiff. Plaintiff contends that the tubs leaked and/or there was no provision for preventing liquids accumulating from this method of selling beer from falling to the floor. He submits that his testimony established that no one inspected the floor for liquid during the concert. Plaintiff further contends that he could not have seen the liquid on the floor because it was too dark.

In his reasons for finding there was no liability on the part of defendants, the trial judge stated that there was no testimony or evidence that there was a puddle on the | r,floor. A close reading of the transcript indicates that plaintiff never testified that he slipped in a puddle of water or that there was water on the floor. Rather, he testified:

Q: Was there anything—was there anything on you to indicate what you may have fallen on or in?
A: Yes, there was, you know, my pants—my seat pants were damp and I had water on my boots.

The trial court obviously concluded that this single reference to damp pants and water on plaintiffs boots did not establish to the trial court’s satisfaction that a puddle caused plaintiffs fall. Further, Ms. Milto testified that two employees were stationed in this room to constantly walk the floors and there were no reports of spills or puddles on the night of the accident. Ms. Milto further testified that the beer tubs were elevated 15 to 18 inches above the dance floor and that a carpet was placed under the tubs.

Given this testimony, we cannot say that the trial judge erred in concluding that plaintiff failed to carry his burden of proving that the selling of beer from the tubs created an unreasonable risk of harm to the claimant, that the risk of harm was reasonably foreseeable, and that the defendant had constructive notice of this condition.

The plaintiff further argues that Ms. Milto was a surprise witness and should not have been allowed to testify. The record indicates that Ms. Milto’s name did not appear on defendant’s witness list or on defendant’s pre-trial order. However, plaintiff knew that he reported this accident to Ms. Milto and in Answers to Interrogatories, defendant stated that a statement had been taken from Ms. Milto. Additionally, defendant’s witness list stated that a representative from Kenny’s Key West would be called to testify. While we agree with the trial judge that Ms. Milto’s name should have been listed on the witness list or pre-trial order by defendant, it is clear from the record |7that plaintiff knew who Ms. Milto was. It is unclear from the record why plaintiff chose not to depose Ms. Milto prior to trial. We do not find the trial judge erred in allowing Ms. Milto to testify. Moreover, plaintiff failed to carry his burden of proof even in the absence of Ms. Milto’s testimony.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED


author: |.CLARENCE E. McMANUS, Judge.

text:
    Diane and Owen OTILLIO, Individually and on Behalf of the Estate of their Minor Son, Shawn Otillio v. ENTERGY LOUISIANA, INC. and Matthew Flot.
    No. 02-CA-718.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Melvin Ripp, Jr., Gretna, LA, for plaintiffs-appellees.
    Kenneth P. Carter, Endya E. Delpit, Sandra Diggs-Miller, New Orleans, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   STATEMENT OF THE CASE

|.CLARENCE E. McMANUS, Judge.

On August 1, 2000, Shawn Otillio, a five year old minor was riding an adult bicycle, unsupervised, northbound on the sidewalk parallel to West Friendship Street. He attempted to cross Stall Drive and was struck by an Entergy truck being driven by Matthew Flot, who was in the course and scope of his employment with Enter-gy. Flot was attempting to make a left turn onto Stall Street from West Friendship. The child was riding his bicycle with his 9-year old brother and 12-year old cousin. They had ridden five blocks away from his aunt’s house to a park. It began to rain, so the children headed back to the aunt’s house. Shawn was riding in front of the other children and was about one to two bicycle lengths in front of the others. According to Shawn, he stopped when he reached Stall Drive and saw the Entergy truck, but the truck did not indicate an intention to turn left. He proceeded across the street and was struck by the truck. The two other children testified that Shawn was beyond the middle of the street or almost to the other side when he was hit.

Flot testified at trial that he did not see the children until immediately prior to the accident, after his vehicle was almost completely turned onto Stall Drive. He further testified that he was driving at a slow rate of speed and was not distracted. Darryl Woullard, Jr. was a passenger in the Entergy truck. He testified that he did not see the children until the truck was in the left hand turn and he yelled at Flot. No citations were issued and the sheriffs deputy who prepared the ^report testified at trial that the accident was “unavoidable”. Shawn was taken to the emergency room at West Jefferson Medical Center on the day of the accident. He required five stitches to close a laceration over his left eye and he suffered contusions and abrasions on his knees and right arm. He was treated with Neosporin and ice packs. X-rays revealed no broken bones or joint abnormalities. Shawn was not wearing protective gear at the time of the accident.

On August 4, 2000, his pediatrician, Dr. Carlos Trujillo, treated Shawn for the accident and prescribed ointment and antibiotics for his injuries. On August 8, 2000, Dr. Trujillo removed the stitches. Shawn was then treated by another pediatrician, Dr. Constanza Fox, on October 27, 2000. Dr. Fox referred Shawn to an orthopedist in November 2000. Shawn was treated by the orthopedist, Dr. Fred Warren, from November 2000 through March 2001. X-rays and an MRI were performed and were normal. As of March 15, 2001, Shawn had no complaints and a normal exam, so Dr. Warren released him to full activities.

Shawn’s parents, Diane and Owen Otil-lio, individually and on behalf of their son, filed a petition for damages against Enter-gy Louisiana, Inc. and Matthew Flot in Second Parish Court for the Parish of Jefferson. Trial was held on March 1, 2002 and a judgment with reasons was rendered on March 26, 2002. The trial court found Flot to be at fault in the cause of the accident. The trial court further found that no comparative fault may be imputed to the child because he was only 6 years old and not legally liable for his acts. The trial court awarded the Otillio’s $8,750.00 in general damages and $2,617.76 in medical expenses plus legal interest and all costs.

Entergy now appeals that judgment and alleges two assignments of error. First, Entergy argues that the trial court was manifestly erroneous or clearly wrong in failing to assign any degree of fault to the parents of the child. Second, Entergy J^contends that the trial court was manifestly erroneous or clearly wrong in the quantum damages awarded to plaintiffs.

DISCUSSION

Comparative Fault

Louisiana Civil Code Article 2323 provides that in an action for damages where a person suffers an injury, the degree or percentage of fault of all persons causing or contributing to the injury shall be determined. The amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury. La. C.C.art. 2323. Comparative fault must be pleaded as an affirmative defense and the party asserting the defense bears the burden of proving, by a preponderance of the evidence, that the negligence of the other party was a cause in fact of the accident. Trahan v. Savage Industries, Inc., 96-1239 (La.App. 3 Cir. 3/5/97) 692 So.2d 490.

In its answer to plaintiffs petition, Entergy pleads the affirmative defense that the accident was the sole fault of plaintiffs. Shawn’s parents, Diane and Owen, are listed as plaintiffs, individually and on behalf of Shawn. The trial court addressed the issue of comparative fault of the minor, Shawn, in its judgment, but failed to address the comparative fault of the parents. We agree with the trial court that Shawn is not at fault in the cause of the accident. A six year old child is not considered to be capable of fault. Jones v. Hawkins, 29-914 (La.App. 2 Cir. 1/21/98) 708 So.2d 749, 756.

The parents are required to use reasonable precautions in supervising their child. Jones at 756, 757. The failure to take the precautions expected of a reasonably prudent person in a similar situation subjects the parent to comparative fault. Id.

We find that Shawn’s parents did take reasonable precautions in supervising Shawn. He had been taught to ride a bike and had, in fact, ridden the bike involved Isbefore the day of the accident. Shawn also testified that he knew how to operate the brakes on the bike. In addition, Shawn’s father testified that Shawn was only allowed to cross the street on the bike, but was not allowed to ride in the street. At the time of the accident, Shawn was crossing the street, but had previously been riding on the sidewalk. On the day of the accident, Mrs. Otillio’s sister, Coau-dine Townsend, was responsible for Shawn. Ms. Townsend allowed Shawn to ride the bike with the other children. There was no testimony presented that either of Shawn’s parents behaved unreasonably by allowing Shawn to ride the bike in the manner in which he did.

Based on the testimony presented at trial, we do not find that Shawn’s parents failed to take the precautions expected of a reasonably prudent person in a similar situation. Therefore, we find they are not subject to comparative fault for this accident.

Quantum

The role of the appellate court in reviewing general damages is not to decide what it considers to be appropriate award, but rather to review exercise of discretion by trier of fact, and adequacy of award should be determined by facts or circumstances particular to case under consideration. Youn v. Maritime Overseas Corp., 92-3017 (La.1993) 623 So.2d 1257. An appellate court should rarely disturb award of general damages since discretion vested in trier of fact is “great”; standard for review is nonspecific, and only when award is, in either direction, beyond that which a reasonable trier of fact could assess for effects of particular injury to particular plaintiff under particular circumstances should appellate court increase or reduce award. Id.

We find the trial court did not abuse its discretion in awarding $8,750.00 in general damages to plaintiffs. Shawn was treated by physicians for the injuries he suffered as a result of the accident for 7/é months. Although the x-rays and the IJCRI were normal, no physician has disputed the fact that Shawn did in fact suffer injuries for which he was treated. The trial court’s award breaks down to approximately $1,166.00 per month. This amount is not beyond that which a reasonable trier of fact could assess. Therefore, we affirm the trial court’s award of general damages.

We do find the trial court erred in awarding plaintiffs medical expenses of $2,617.76. A review of the plaintiffs medical records reveals that three visits to the pediatrician, one visit to Dr. Trujillo and two visits to Dr. Fox, were completely unrelated to the accident and one other visit was only partially related. In his deposition, Dr. Trujillo confirms that the last visit with Shawn, on September 25, 2000, was unrelated to the accident, and was for the treatment of asthmatic bronchitis. The first visit with Dr. Fox, on October 27, 2000, was partially for treatment of leg pain, but also for a cough and Shawn was given an inhalation treatment, immunizations and a flu shot. On November 9, 2000, he saw Dr. Fox for “pink eye” and on December 29, 2000 he was treated for vomiting, diarrhea, and pin worm.

We find the plaintiffs are entitled to the expenses for the October 27, 2000 visit with Dr. Fox, but not the expenses related to the inhalation treatment and the immunizations. In addition, the plaintiff is not entitled to the expenses for the other unrelated visits of September 25, November 9, and December 29, 2000. Therefore, we amend the trial court’s award of medical expenses to $2,395.25.

Accordingly, we affirm the trial court’s findings of liability, comparative fault and the award of general damages. We amend the trial court’s award of medical expenses. As amended, we affirm the trial court’s judgment.

JUDGMENT AMENDED, AS AMENDED, AFFIRMED.


author: I JAMES L. CANNELLA, Judge.

text:
    Donald O. GOODLOW v. LOUISIANA MOTOR VEHICLE COMMISSION.
    No. 02-CA-627.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.
    W. Wade Shows, Carlos A. Romanaeh, Baton Rouge, LA, for Appellant, Donald O. Goodlow.
    Campbell, McCranie, Sistrunk, Anzelmo & Hardy, Burgess E. McCranie, Jr., Geoffrey J. Orr, Metairie, LA, for Appellee, Louisiana Motor Vehicle Commission.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   I JAMES L. CANNELLA, Judge.

Plaintiff, Donald O. Goodlow (Goodlow), appeals from the trial court judgment affirming the decision of the Louisiana Motor Vehicle Commission (LMVC) to deny his application for a new motor vehicle salesman license. For the reasons which follow, we affirm.

Goodlow has been in the automobile sales business since 1981. In 1997, Good-low and Doug Gehrig (Gehrig), who had some experience in the automobile dealership business, formed a corporation named DD Group, Inc. (DD) to operate an automobile dealership. Goodlow and Gehrig each owned 50% of the stock of DD. In 1997, DD purchased a car dealership in Bunkie, Louisiana and named it Central Ford. Prior to that time, Goodlow had never owned, operated, managed the cash flow or collected on accounts receivable of an automobile dealership. In 1997, DD showed a $50,000 to $60,000 loss. By May of 1998, DD showed a $40,000 to $50,000 profit. At about that time, Gehrig began another business and did not continue the day to day onsite supervision of DD. Cash flow "problems started. In an attempt to generate additional revenue, Goodlow entered into a conditional Buy-Sell Agreement and Management Agreement with another [3automobile dealership, Ryland Dodge-Chrysler, Inc. (Ry-land). This agreement was ratified by Gehrig. The agreement permitted DD to manage Ryland pending Chrysler Corporation’s approval of the sale and issuance of a franchise to DD. However, Chrysler Corporation did not grant the franchise. Moreover, the arrangement did not generate the anticipated revenue for DD, but rather, plunged it further into debt. In October of 2000, DD was approximately $700,000 in debt and Gehrig fired Good-low.

Since October of 2000, DD has satisfied all of its outstanding obligations. Goodlow declared personal bankruptcy. Goodlow settled with Gehrig, entering into a consent judgment. DD is still doing business as Central Ford.

On June 1, 2001, Goodlow went to work at United Auto Dodge of Shreveport as the Director of Sales and Sales Development on a commission basis. On June 22, 2001, Goodlow applied to the LMVC for a new motor vehicle salesman license.

On June 29, 2001, the LMVC denied Goodlow’s application for a license as a salesman for a new motor vehicle dealership. On July 9, 2001, Goodlow and United Auto Dodge requested a license review hearing before the LMVC. On July 26, 2001, the LMVC issued a Notice of Hearing citing applicable parts of La. R.S. 32:1255, on the denial of licenses, and certain incidents that established the violations of the statute, as follows:

LSA-R.S. 32:1255. Denial, revocation, imposition of a civil penalty, or suspension of license; grounds
The commission may, in addition to imposing a civil penalty under the provisions of this Chapter, deny an application for a license, or revoke or suspend a license after it has been granted for any of the following reasons:
(1) On satisfactory proof of unfitness of the applicant or the licensee, as the case may be, under the standards established and set out in this Chapter.
14(2) For fraud practiced or any material misstatement made by an applicant in any application for the license under the provisions of this Chapter.
(6) For any violation of any law relating to the sale, lease or rental, distribution or financing of motor vehicles.
(7) Upon a find that, considering the matters set forth in the applicable paragraphs of Subsections A through J of Section 1254, the public interest is not served by the issuance of license sought or continuance of the license previously granted.

The following incidents are cited as violations of the above-mentioned statutes.

(1) Failed to pay sales taxes and registration fees to the State of Louisiana while dealer-operator and owner of DD Group, Inc. DBA Central Ford.
(2) Submitted checks to the State of Louisiana which were returned for insufficient funds while dealer-operator and owner of DD Group, Inc. DBA Central Ford.
(3) Failed to pay off loans on cars traded-in to DD Group, Inc. DBA Central Ford while dealer-operator and owner.
(4) Stopped payment on checks to General Motors Acceptance Corporation for payoff of automobiles after GMAC released all loan documents and title transfers to DD Group, Inc. DBA Central Ford while dealer-operator and owner.
(5) Operated Ryland Dodge-Chrysler, Inc. under the name Central Dodge-Chrysler-Plymouth-Jeep without obtaining franchises and new motor vehicle dealer and salesman licenses.
(6) Advertised as Central Dodge-Chrysler-Plymouth-Jeep without being properly licensed as such.

On August 13, 2001, a hearing was held at which several witnesses testified but no exhibits were introduced by the LMVC. Goodlow introduced two exhibits, An Act of Assignment of Agreement to Buy and Sell and his Bankruptcy Court records. At the conclusion of the hearing, the LMVC voted 5-2 to deny Goodlow his salesman license. The LMVC issued Findings of Fact that the six incidents of violations referenced in the Notice of Hearing had been proven. Conclusions of Law stated:

1. The Commission has presented satisfactory proof of the unfitness of Mr. Donald 0. Goodlow to receive a salesman’s license.
2. The Salesman’s license applied for by Donald O. Goodlow is denied.

|sOn October 25, 2001, Goodlow filed a Petition for Judicial Review, appealing the LMVC judgment. Argument before the trial court was conducted on December 20, 2001. At the conclusion of the hearing, the trial court affirmed the decision of the LMVC. It is from this ruling that Goodlow appeals.

On appeal, Goodlow assigns eight errors. The first six can be consolidated into LMVC failing to prove the statutory violations by Goodlow “individually.” We find no merit in this argument.

The incidents of violations cited by the LMVC were not incidents of Goodlow’s “individual” actions per se, but were evidence of statutory violations that he committed as the “dealer-operator” of DD. The record amply supports these findings. Gehrig testified that he was not handling the daily operations of the business during that time and that he had left Goodlow in charge. Goodlow was the dealer-operator of the business and the statutes regulate the actions of the dealer-operator. Moreover, Goodlow testified at the hearing and admitted to being the person in charge of the company at the time of the violations and the one who performed the actions in question, although he testified that the actions were not intentional but were necessitated by the cash flow problems of the company.

Goodlow’s fundamental argument on appeal is that the action of the LMVC in denying his salesman license was arbitrary and capricious and an abuse of discretion.

La. R.S. 32:1255 allows the LMVC to deny an application for a license “On satisfactory proof of unfitness of the applicant or the licensee.” La. R..S. 32:1254(B), on application for licenses, provides in pertinent part:

B. In determining whether or not to issue a license to any applicant, the'commission shall consider the information provided above, the declaration of public policy set forth in Section 1251, as well as all of the following:
(1) Financial standing and business integrity of the applicant.
|fi(2) Ability of the applicant to conduct properly the business for which a license is sought.
(3) Adequacy of the applicant’s established place of business for the purpose for which a license is sought.
(4) Effect on the retail motor vehicle business and the consuming public in the community or territory and the state of Louisiana.
(5) Effect on the motor vehicle leasing/rental business and the consuming public in the state of Louisiana.

La. R.S. 32:1251, the Declaration of Public Policy, provides in pertinent part:

The legislature finds and declares that the distribution and sale of motor vehicles in the state of Louisiana vitally affects the general economy of the state, the public interest, and the public welfare. ...

In considering the declared public policy of the state, as well as the prescribed statutory factors, and the evidence of Goodlow’s activities as a dealer-operator governed by these provisions, the LMVC found that there was satisfactory proof of the unfitness of Goodlow to receive a salesman’s license.

The legislature, through its declaration of public policy, has declared that the regulation of automobile sales is of vital public interest to this state and its citizens. One of the factors to be considered in licensing, among many others, is the applicant’s financial standing and business integrity. The record in this case evidences violations by Goodlow of the rules and regulations set out in the applicable Chapter, La. R.S. 32:1251 et seq., when DD encountered financial difficulty. These actions included non-payment of state taxes, company checks returned due to insufficient funds, stop payment orders on company checks and failure to timely pay amounts due to creditors. There was testimony that by the end of the approximate three year period, DD was in debt over $700,000. Based on the record before us, we do not find that the action taken by the LMVC was arbitrary and capricious or an abuse of discretion and, to the contrary, we find that |7the record amply supports the LMVC’s decision to deny Goodlow the salesman license.

Accordingly, for the reasons set forth above, we affirm the judgment of the trial court which affirmed the decision of the LMVC to deny Goodlow his salesman’s license for new motor vehicles. Costs of appeal are assessed against Goodlow.

AFFIRMED.


author: |,THOMAS F. DALEY, Judge.

text:
    In the Matter of Eugene KELLER, Jr.
    Nos. 02-CA-823, 02-C-674.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Sue Buser, Richard W. Martinez, New Orleans, LA, for Appellant, Direct General Insurance Company of Louisiana.
    George Waguespack, Gonzales, LA, for Appellees, Cindy Hogan, A Major and Margaret Dorsey, Danielle Keller and Ladecia Keller.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and MARION F. EDWARDS.
   |,THOMAS F. DALEY, Judge.

Appellant, Direct General Insurance Company of Louisiana (Direct General), filed a Petition for Concursus in this matter and deposited into the registry of the Court the sum of One Hundred Thousand ($100,000.00) Dollars, representing the “per person” limits of the policy of automobile liability insurance it issued to Delecia Allen, in connection with a motor vehicle accident that occurred in St. James Parish on September 26, 2001, which accident resulted in the death of Eugene Keller.

The biological children and heirs of Eugene Keller, Jr. (Kellers), filed an Answer to the concursus petition and a Reconven-tional Demand in which they claimed that they were entitled to the entire Three Hundred Thousand ($300,000.00) Dollars “per accident” limits of the policy issued by Direct General.

Both Direct General and the Kellers each filed a Motion for Summary Judgment on the issue of whether the “per person” limits of One Hundred Thousand ($100,000.00) Dollars or the “per accident” limits of Three Hundred | .¡Thousand ($300,000.00) Dollars applied to the claims of the Kellers under the policy.

On May 16, 2002, the trial court entered judgment granting the Motion for Summary Judgment of the Kellers and denying the Motion for Summary Judgment of Direct General, in effect finding that the Three Hundred Thousand ($300,000.00) Dollars “per accident” limits of the policy applied.

In the Reasons for Judgment issued on June 17, 2002, the trial judge stated, “the three children of Eugene Keller, Jr. each suffered individual injuries, including the loss of services, as a result of the death of their father.” Further, the trial court stated that “each child suffered bodily injury, as defined by the policy, caused by one car accident.” The judge ordered Direct General Insurance Company to pay policy limits of Three Hundred Thousand ($300,000.00) Dollars to the Kellers.

Direct General appeals the decision of the trial court. Specifically, the trial court’s Order that Direct General pay policy limits of Three Hundred Thousand ($300,000.00) Dollars to the Kellers. Direct General requests that the trial court’s decision to deny its Motion for Summary Judgment be reversed, that the trial court’s Order that Direct General pay policy limits of Three Hundred Thousand ($300,000.00) Dollars to the Kellers be reversed, and the Direct General Motion for Summary Judgment be granted, finding the applicable limits of the policy to be One Hundred Thousand ($100,000.00) Dollars.

The policy of automobile liability insurance issued by Direct General to Delecia Allen provides:

Definitions
Damages means the cost of compensating those who suffer bodily injury or property damage from a car accident.
| ^Liability
Bodily Injury Covered By This Insurance. This insurance covers bodily injury, including loss of services, sickness, disease or death that results from the injury, caused by a car accident and suffered by any person. Bodily injury does not mean a person’s emotional injury or mental anguish which resulted from witnessing an injury to another person or which otherwise resulted from the injury to another person.
Limits of Liability
The limit of liability shown in the declarations for “each person” for bodily injury liability is our maximum limit of liability for all damages for bodily injury to any one person, including damages for care, loss of services or death, arising out of bodily injury sustained by any one person in any one car accident. Subject to this limit for “each person” the limit of liability shown on the declarations for “each accident for bodily injury liability is our maximum limit of liability for all damages resulting from bodily injury sustained by two or more persons in any one car accident.

The accident, which forms the basis of this suit, involved bodily injury to and the death of Eugene Keller, Jr.

Appellants argue that according to the precise terms of the insurance policy the limit for “each person applies to all claims resulting from Eugene Keller, Jr.’s bodily injury.” They point out that the policy specifically states that bodily injury does not mean a person’s emotional injury or mental anguish which resulted from witnessing an injury to another person or which otherwise resulted from the injury to another person. Appellants assert that the damages that the Kellers children are entitled to all involve emotional or mental anguish that resulted from injury to Mr. Keller.

The Kellers children argue that because the terms of the policy include “loss of services” within the definition of “Bodily Injury Covered”, that each of Mr. Keller’s children had an individual claim. The policy states, “This insurance covers bodily injury, including loss of services, sickness, disease or death that results from the injury, caused by a car accident and suffered by any person.”

|sThe Kellers assert that the three children of Eugene Keller suffered individual injuries as a result of his death. These injuries were caused by one car accident; therefore, the policy provides coverage for the injuries the children suffered, i.e., “bodily injury, including loss of services, sickness, disease, or death that resulted from the car accident, as the children’s injuries fit within the policy provision of injuries “suffered by any person”.

In this case, each child suffered bodily injury as defined by the policy, (ie. Loss of services) because of a car accident. All three of the children’s injuries occurred or arose from the car accident that killed their father. These individual injuries to the children entitle each of them to a per person limit on the policy, because of the following provision: “limit liability for all damages resulting from bodily injury sustained by two or more persons in any one car accident.”

Where the language of a policy provision is subject to two reasonable interpretations, then the interpretation, which favors coverage, must be applied, Crabtree v. State Farm Ins. Co., 632 So.2d 736 (La.1994), 745. Since the policy provisions in Crabtree are essentially the same as the provisions in this case the same analysis leads us to the conclusion that under the particular language of this policy each child is entitled to a per person limit of One Hundred Thousand ($100,000.00) Dollars for a total of Three Hundred Thousand ($300,000.00) Dollars.

All parties agree that these plaintiffs must establish the amount of damages to which each is entitled. Thus, the trial court’s ruling on the Motion for Summary Judgment is affirmed, the trial court award of damages is reversed, and the matter is remanded back to the trial court where the case will proceed to trial, so plaintiffs can prove the amount of damages each child suffered as a result of their individual injuries.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


author: J^THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Al NIGHTH.
    No. 02-CA-730.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Rick Pickens, Assistant District Attorneys, 24th Judicial District Court Parish of Jefferson, Gretna, LA, for PlaintiffAppellee.
    Joseph C. Seyler, Mental Health Advocacy Service, New Orleans, LA, for Respondent/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   J^THOMAS F. DALEY, Judge.

Appellant, A1 Nighth, challenges his commitment to the Eastern Louisiana Mental Health System, Forensic Division that was signed by the trial judge on January 7, 2002, pursuant to a finding that he was incapable of standing trial, is a danger to others, and is unlikely in the foreseeable future to be capable of standing trial. Appellant alleges that the trial court committed error in finding him to be dangerous to others due to mental illness. For the reasons set forth below we reverse the trial court’s finding that the defendant is dangerous and remand the matter to the trial court for further proceedings.

FACTUAL BACKGROUND:

On August 5, 1998, A1 Nighth was charged by Bill of Information with armed robbery, a violation of La. R.S. 14:64. On September 22, 1998, A1 Nighth pled not guilty. On December 17, 1998, a sanity hearing was held; and both the State and the defense stipulated that the appellant was not competent to stand trial. The appellant was remanded to the Eastern Louisiana Mental Health System, laForensic Division. On January 27, 2000, a competency hearing was again held; and both the State and the defense stipulated that the appellant was not competent to stand trial. On December 13, 2001, another competency hearing was held in which evidence was introduced that the appellant would never be competent to stand trial. The State’s witness recommended that appellant be transferred from the forensic wing of the hospital (criminal wing) to the East Division wing (civil wing). After the hearing, the court ordered that the appellant remain in the forensic wing of the hospital. On January 7, 2002, the court signed a Judgment of Civil Commitment, ordering the appellant to be committed to the Eastern Louisiana Mental Health System, Forensic Division.

ASSIGNMENT OF ERROR:

Appellant alleges that the trial court erred in finding A1 Nighth to be dangerous to others due to mental illness when the only evidence before the court was that he was not dangerous.

Dr. Alan Newman was the only witness called to testify at the hearing. He is the forensic psychiatrist who has been treating A1 Nighth for the past year. He testified that A1 Nighth has a diagnosis of paranoid schizophrenia, borderline intellectual functioning, and bronchial asthma. His mental illness is in partial remission, and is “of a lower psychiatric acuity than most of the patients on the civil wing.” Dr. Newman indicated that the appellant is not a management problem and he poses no threat of harm to himself or others. The only evidence in this record to suggest that Al Nighth is dangerous is the fact that he has been charged with a violent crime.

The United States Supreme Court has held that it is unconstitutional to hold a mentally ill citizen in custody absent the rights and remedies provided to other citizens just because he has been charged with a crime, once it has been determined 1¿that competency to proceed will not be regained in the foreseeable future. Jackson v. Indiana, 406 U.S. 715, 730, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).

La.C.Cr.P. art. 648 distinguishes between defendants who are incapable of standing trial and may be released without danger to themselves or others, and those defendants who are incapable of standing trial, but are dangerous to themselves or others. Under La.C.Cr.P. art. 648(B)(2),

“If after the hearing, the court determines the defendant is, and will in the foreseeable future be, incapable of standing trial and may be released without danger to himself or others, the court shall release the defendant on probation.”

The companion paragraph, La.C.Cr.P. art. 648(B)(3), states that,

“If, after the hearing, the court determines the mentally defective defendant incapable of standing trial, is a danger to himself or others, and is unlikely in the foreseeable future to be capable to standing trial, the court shall order commitment to a designated and medically suitable treatment facility. Such a judgment shall constitute an order of civil commitment.”

Since this record contains no evidence that the appellant is dangerous to himself or others, we find that La.C.Cr.P. art. 648(B)(2) is applicable and states, “the court shall release the defendant on probation.” (Emphasis added).

An alternative to probation is available to the State pursuant to La. R.S. 28:59, which states that:

B. Any person who is determined to lack the capacity to proceed, who will not attain the capacity to proceed with his trial in the foreseeable future, and who is not a danger to himself or others, shall be discharged in accordance with Code of Criminal Procedure Arts. 648 et seq. However, this release is without prejudice to any right the state may have to institute civil commitment proceedings pursuant to R.S. 28:53 or R.S. 28:54. Furthermore, this person may be held in a treatment facility for a reasonable time period pending the judicial commitment hearing.

This civil commitment process under Chapter 28 allows for a civil commitment for an individual who is gravely disabled. While the testimony of Dr. Alan Newman, the treating psychiatrist, does not indicate that Al Nighth is dangerous to himself or | Bothers, Dr. Newman clearly states that Al Nighth is gravely disabled and that he would not be able to live independently on his own.

Therefore, in accordance with La. C.Cr.P. art. 648 and La. R.S. 28:59 we remand this matter to the trial court with instructions that the trial court is to conduct a hearing, within thirty (30) days of this opinion, to set the terms and conditions of Mr. Nighth’s probation pursuant to La.C.Cr.P. art. 648. Pending the hearing to set the probationary conditions Al Nighth will remain committed to the Eastern Louisiana Mental Health System, Forensic Division. Furthermore, the State pursuant to La. R.S. 28:59(B) may institute civil commitment proceedings. In accordance with La. R.S. 28:54, if a civil commitment proceeding is filed by the State before the probationary hearing, the trial court is authorized to postpone the hearing pending the results of the civil commitment. If a civil commitment is ordered, pursuant to La. R.S. 28:54, the probation hearing will not be necessary during the pendency of the civil commitment.

REVERSED IN PART AND REMANDED.