author: STONE, J.

text:
    Benton W. CHAMBLISS and Brenda W. Chambliss, Appellants, v. Walter BENEDIKTER, Renata Benedikter and LMNOP, LLC, Appellees.
    No. 4D05-4110.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    John J. Shahady and Thomas R. Shaha-dy of Adorno & Yoss LLP, Fort Lauder-dale, for appellants.
    Joel C. Zwemer of Dean, Mead, Minton and Zwemer, Fort Pierce, for Appellee-LMNOP, LLC.
   STONE, J.

Benton and Brenda Chambliss (“Buyer 1”) appeal a final judgment awarding them specific performance of a real estate purchase contract, but, nevertheless, requiring that they be charged with paying for three years of property taxes in arrears prior to closing. As to the latter provision, we reverse.

The specific performance award was against Benedikter (Seller) for a recently built home on Hutchinson Island. Because of the property’s location, approvals from the Florida Department of Transportation, the Department of Environmental Protection, and the Army Corps of Engineers were required.

The purchase contract, on a standard real estate form, included provisions that “[a]ny open permits will be closed by seller at seller’s expense prior to closing,” and “[t]axes, assessments, interest, insurance and other expenses of the Property shall be 'prorated through the day before closing.’ ”

As the closing date drew near, Seller advised the broker that he was working to resolve the various issues, but, in fact, he did not contact any of the pertinent governmental agencies or ask anyone else to do so, notwithstanding extensions signed by Buyer 1.

Buyer 1 filed this action against Seller and filed a lis pendens. Buyer 1 later discovered that Seller had entered into a second contract with LMNOP, LLC (Buyer 2), with different terms and for more money. Despite the lis pendens, the transaction with Buyer 2 closed. Buyer 1 then amended his complaint, joining Buyer 2.

Seller and Buyer 2 filed answers and affirmative defenses. Buyer 2’s mirrored Seller’s, and neither claimed a set-off. Buyer 2 also filed a cross-claim against Seller. Buyer 2 had possession of the property during the pendency of the litigation (close to three years), using it as a vacation home for himself, his business partners, and their extended family members.

Ultimately, the case went to trial and Seller, who had appeared pro se, absented himself from the proceedings halfway through the trial, never to re-appear. As the trial court so aptly expressed, the action involved two good faith buyers who had done nothing wrong, and a bad guy seller who “is off with the money.”

Finding that Buyer 2 was charged with notice by virtue of the lis pendens, the trial court orally pronounced the grant of specific performance for Buyer 1, and ordered the deed to Buyer 2 stricken from public records and declared null and void. The trial court ordered a closing within a mutually feasible timeframe, orally stating that “whatever their contract calls for, they’ll [Buyer 1] pay” with regard to closing costs.

Next, the trial court focused upon Buyer 2’s damages against Seller. The trial court entered a judgment against Seller in favor of Buyer 2, but since Buyer l’s purchase price was less than Buyer 2’s, there was a shortfall as to reimbursement of Buyer 2’s loss out of the funds owed by Buyer 1 at closing.

As per each buyer’s contract, the trial court ordered payment of attorney’s fees and costs against Seller — Buyer l’s to be paid in the form of a credit against the purchase price and Buyer 2’s to be included in the judgment against Seller. With regard to past due taxes, the trial court orally pronounced “[tjhen put in that the closing costs will be — the taxes will be paid out of the closing just as you would normally at a closing.”

The final judgment echoes the trial court’s oral rulings on all points, save one — the real estate taxes in arrears. In paragraph 6 of the findings of fact, the order reads:

Since the Plaintiffs [Buyer 1] have had the use of the money during litigation and the Subject Property has substantially increased in value, the Court believes it equitable that the Plaintiffs pay the real property taxes now due in arrears and that there be no proration of the 2005 taxes. The Court recognizes that Plaintiffs have not had the use of the Subject Property and that Defendant LMNOP, LLC [Buyer 2] has.

“A motion for set-off is an affirmative defense. Affirmative defenses are waived if not pled.” JoJo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So.2d 503, 504 (Fla. 4th DCA 2003) (citations omitted). The question of property taxes was not pled at any point during the proceedings. It was only in closing argument that Buyer 2 suggested that it would be equitable to hold Buyer 1 responsible for the unpaid taxes (due to the increased value of the property and the fact that Buyer 1 had the use of the funds during the interim). However, it is error for the trial court to award relief not sought by the pleadings. Bd. of Regents v. Stinson-Head, Inc., 504 So.2d 1374, 1375 (Fla. 4th DCA 1987).

Further, and in any event, we conclude that the only circumstance in which Seller would have been entitled to a set-off against Buyer 1 is in the event Buyer 1 had sought an award for rents and profits that accrued to the property during the litigation. Had Buyer 1 done so, Seller would then be entitled to seek an offset of any monies he expended on the property (e.g. property taxes) against an award of rents and profits. See Roschman Partners v. S.K. Partners I, Ltd., 627 So.2d 2, 5 (Fla. 4th DCA 1993). An exception to this general rule is when one party wrongfully refuses to perform the contract. Shelter Corp. of Can. v. Bozin, 468 So.2d 1094, 1097 (Fla. 2d DCA 1985). Here, Seller collected no rents or profits and Seller was found to be the wrongdoer. Therefore, under no circumstances would Seller, or Buyer 2 standing in Seller’s shoes, be entitled to a set-off for the real estate taxes.

We also note that although generally the trial court is empowered to fashion a remedy that balances the equities between parties, the parties involved in this specific performance claim are Seller and Buyer 1. Further, as between Buyer 1 and Seller, the trial court had no authority to vary the explicit terms of the contract. Anthony James Dev., Inc. v. Balboa St. Beach Club, 875 So.2d 696, 697 (Fla. 4th DCA 2004).

The contract expressly states that Seller is responsible for the taxes prior to closing. Even in context of specific performance, “the court will not make a new or different contract for the parties ... and ordinarily, it will compel the performance of a contract only in the precise terms agreed upon by the parties themselves.” Giehler v. Ward, 77 So.2d 452, 453 (Fla.1955).

In Balboa St. Beach Club, our court reversed and remanded a grant of specific performance for modification because the trial court went beyond the contract in ordering performance where the contract did not require the property to be taken “as is” and certain provisions of the contract had not yet been met. 875 So.2d at 698. In Free v. Free, 936 So.2d 699, 704 (Fla. 5th DCA 2006), the Fifth District reversed a portion of a final judgment granting specific performance where the trial court ordered a party to pay expenses and costs that were the contractual obligations of the other party, stating, “[l]ogic and law dictate that the trial court may not declare [a contract’s] validity and then refuse to require the parties, including the party seeking equitable relief, to honor all of their contractual commitments.”

The tax issue is relevant only to the transaction between Seller and Buyer 1. The fact that Buyer 2 will net less cash from the transaction does not change the result. Buyer 2’s remedy is in its judgment against Seller. Unpaid taxes as of the closing date must be credited to Buyer 1 out of the funds due at closing.

Therefore, the judgment is reversed in part, and we remand for modification accordingly.

SHAHOOD and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    D.N., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-1742.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Richard F. Joyce, Orlando, for appellant.
    Hillary S. Kambour; Karla Perkins, Miami, for appellee.
    Before GERSTEN, FLETCHER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See E.K.B. v. Dep’t of Children & Families, 724 So.2d 720 (Fla. 3d DCA 1999).


text:
    Earl CONEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D05-3304, 4D06-2312.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.

      Earl Coney, South Bay, pro se.
    No brief filed for appellee.
   PER CURIAM.

Earl Coney challenges the sentences in seven cases where his probation was revoked. In one case, the circuit court sentenced Coney to five years in prison to run consecutively with six concurrent five-year sentences.

When a defendant is sentenced to a probationary split sentence — i.e., a term of incarceration, none of which is suspended, followed by a period of probation — the defendant may be resentenced to any term up to the maximum which could have been originally imposed upon a violation of probation. See McCaskill v. State, 728 So.2d 1183 (Fla. 5th DCA 1999). In this case, the July 3, 2002 sentencing order demonstrates that Coney was originally sentenced to probationary split sentences, so that his consecutive sentence was proper under McCaskill. There was no double jeopardy violation. See Evans v. State, 675 So.2d 1012, 1015 (Fla. 4th DCA 1996). This is not a case involving a “true split sentence,” which is a term of incarceration, a period of which is suspended subject to completion of probation. See Towbridge v. State, 564 So.2d 604 (Fla. 3d DCA 1990).

We do not find that the August 28, 2002 sentencing order limited the court’s ability to sentence Coney upon a violation of probation. Also, we find no error in the successor judge sentencing appellant on the violations of probation. See Wilson v. State, 918 So.2d 446 (Fla. 4th DCA 2006); Scott v. State, 909 So.2d 364 (Fla. 5th DCA 2005). Finally, we find that Coney’s allegations of scoresheet errors are without merit.

Affirmed.

POLEN, KLEIN and GROSS, JJ., concur.


author: KLEIN, J.

text:
    Michael CLARKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1077.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Rehearing Denied Nov. 15, 2006.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

We withdraw our opinion filed on September 20, 2006 and replace it with this opinion.

Appellant was convicted of kidnapping and aggravated assault. The only issue he raises which has merit is whether Bahamian convictions were qualifying offenses for a habitual offender sentence. The state did not establish that the three Bahamian crimes, which were the basis for the harsher sentence, had elements which were similar to Florida offenses and were punishable by more than one year of imprisonment, as is required by section 775.084(l)(e), Florida Statutes (2003).

Appellant argues that, on remand, the state should not be given a second opportunity to prove that appellant qualifies for a habitual offender sentence, but recognizes that in this district we have allowed the state a second opportunity. Rivera v. State, 877 So.2d 787 (Fla. 4th DCA), rev. denied, 888 So.2d 623 (Fla.2004) and cases cited.

He argues that we should follow Collins v. State, 893 So.2d 592 (Fla. 2d DCA 2004), rev. granted, 929 So.2d 1054 (Fla.2006), in which the second district held that, where the defendant specifically objects to the sufficiency of the proof of the prior convictions at sentencing, the state does not have another opportunity to prove the qualification for habitual offender sentence on remand. Collins is somewhat distinguishable because, in the present case, the objection was not raised until defendant filed a rule 3.800(b)(2) motion while the appeal was pending. That motion was deemed denied under the rule, because the trial court failed to rule on it within sixty days.

It appears from our opinion in Rivera that the defendant did not object at the sentencing hearing, but did raise the issue in a rule 3.800(b)(2) motion which was denied. In Rivera we remanded and gave the state another opportunity to prove the requirements for a habitual offender sentence. This court has also given the state the same opportunity on remand even where the defendant did raise the objection at the sentencing hearing. Osborne v. State, 820 So.2d 1046 (Fla. 4th DCA 2002); Cameron v. State, 807 So.2d 744 (Fla. 4th DCA 2002).

We have also allowed a defendant, on resentencing, to raise an issue he did not previously address involving victim injury points on his scoresheet. Altman v. State, 756 So.2d 148, 150 (Fla. 4th DCA 2000), in which we explained:

Appellant has not addressed the fact that he did not raise this issue when he first appealed his convictions, even though that is why the trial court denied him relief. We do note that it is well established in death penalty cases that resentencing is an entirely new proceeding. Phillips v. State, 705 So.2d 1320 (Fla.1997). The closest authority we can find which is not a death penalty case is Baldwin v. State, 700 So.2d 95 (Fla. 2d DCA 1997). In Baldwin the defendant had not attacked the state’s proof of his prior convictions at his original sentencing, but he attempted to challenge them at his resentencing. The trial court held that the issue had been waived, but the second district reversed and held that he was entitled to a de novo sentencing hearing. We followed Baldwin in Mills v. State, 724 So.2d 173 (Fla. 4th DCA 1998). Based on these authorities and, because it appears that there may have been a change in the law involving sexual contact, we conclude that the trial court should have allowed appellant to raise this issue at his resentencing.

Although we have concluded that this case is not in direct conflict with Collins, we recognize that they are similar in the sense that the sentencing issue was not being raised for the first time on appeal. In Collins, as we said earlier, it was raised at the sentencing hearing, and in the present case it was raised in a rule 3.800(b)(2) motion during the appeal, before the filing of the initial brief. We have accordingly decided that we should certify the issue as one of great public importance so that our supreme court will have the opportunity to decide this frequently arising question, if Collins, which was orally argued September 21, 2006, does not address it. We certify the following question as one of great public importance:

WHERE THE DEFENDANT DOES NOT OBJECT TO THE PROOF OF PRIOR CONVICTIONS AT THE SENTENCING HEARING, BUT DOES TIMELY RAISE THE OBJECTION IN A RULE 8.800(b)(2) MOTION, DOES THE STATE, AFTER REVERSAL OF THE SENTENCE, HAVE ANOTHER OPPORTUNITY TO PROVE THE PRIOR CONVICTIONS?

We affirm the convictions, but reverse and remand for resentencing.

WARNER and GROSS, JJ., concur.


author: SHAHOOD, J.

text:
    The VILLAGE OF WELLINGTON, The City of Delray Beach, The City of Lake Worth, The Town of South Palm Beach, The City of Atlantis, and The City of West Palm Beach, Florida municipalities, Appellants, v. PALM BEACH COUNTY, Florida, a political subdivision, Appellee.
    Nos. 4D05-2666, 4D05-2687.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Rehearing Denied Nov. 22, 2006.

      Claudio Riedi, Dexter Lehtinen and Anthony J. O’Donnell of Lehtinen, Vargas & Riedi, P.A., Miami; Jeffrey S. Kurtz and Jonathan M. Streisfeld, of Brinkley, Morgan, Solomon, Tatum, Stanley, Lunny & Crosby, LLP, Fort Lauderdale, for appellant Village of Wellington.
    Susan A. Ruby, City Attorney, Delray Beach, for appellant City of Delray Beach.
    Elaine A. Humphreys, Assistant City Attorney, Lake Worth, for appellant City of Lake Worth.
    Keith W. Davis of Corbett & White, P.A., Lantana, for appellants City of Atlantis and Town of South Palm Beach.
    Robert P. Banks, Assistant County Attorney, West Palm Beach, for appellee.
    Linda Brehmer Lanosa, Assistant County Attorney, Orlando, for Amicus Curiae Orange County.
   ON MOTION FOR REHEARING, REHEARING EN BANC, AND CLARIFICATION

SHAHOOD, J.

We deny the appellant’s motion for rehearing and rehearing en banc, but grant the motion for clarification to correct typographical errors, and substitute the following opinion.

This action was commenced by The Village of Wellington, the City of Delray Beach, the City of Atlantis, the Town of South Palm Beach, and the City of Lake Worth (collectively “Appellants”), bringing an action for declaratory judgment and injunctive relief against Palm Beach County (PBC). The declaratory judgment portion of the action challenged the validity of a 2004 amendment to the Palm Beach County Charter, which intended to provide an exclusive method of voluntary municipal annexation for the County. The trial court entered an order based on appellants’ and PBC’s cross-motions for summary judgment. The order entered found the Palm Beach County Charter Amendment to be partially valid, but contained three invalid provisions.

Appellants appeal the Order on Motions for Summary Judgment/ Final Judgment. Appellee, PBC, cross-appeals that part of the court’s ruling that found the Charter Amendment contained three invalid provisions. We affirm the appeal and cross-appeal.

The order appealed related to an ordinance approved by the Palm Beach County Commission seeking to amend the County’s charter involving voluntary annexation. The trial court in its ruling upheld the amendment by severing the invalid portions.

On August 17, 2004, the Palm Beach County Commission approved Ordinance 2004-021. The Ordinance set forth the proposed charter amendment language, and placed the following question on the ballot for the November 2, 2004, general election, in part:

EXCLUSIVE METHOD OF VOLUNTARY ANNEXATION IN PALM BEACH COUNTY
Shall the Palm Beach County Charter be amended to authorize an ordinance providing the exclusive method for voluntary annexations, including notice requirements and designation of the area outside the urban service area as the unincorporated protection area where voluntary annexation must be approved by the county commission, and which includes unincorporated rural neighborhoods where voluntary annexation must be approved by the county commission and majority vote of electors residing within the boundaries of that neighborhood? Yes_No_

On October 6, 2004, appellants filed an eight-count Complaint which included counts for declaratory judgment and in-junctive relief against the County. Appellants requested the court to declare the proposed charter amendment and the ballot question invalid. Along with the complaint, appellants filed a Motion for Temporary Injunction, seeking to remove the ballot question from the November 2, 2004 ballot. The trial court denied the motion for injunction and permitted the Charter Amendment to be presented to the voters.

On November 2, 2004, the majority of the electorate of Palm Beach County voted “Yes” on the ballot question. As a result, Ordinance 2004-021 was passed, amending the County’s Charter by adding the following language:

As set forth in Article VII of this Charter, Palm Beach County has the power to establish by ordinance the exclusive method for voluntary municipal annexation, to the extent authorized by law, including the designation of an unincorporated protection area and designation of unincorporated rural neighborhoods.

The Amendment gave the County Commission power to provide, by ordinance, the methods of “voluntary municipal annexation.” It also authorized the County Commission to establish and change, by ordinance, “unincorporated protection areas” (“UPAs”) and areas “eligible” to become “unincorporated rural neighborhoods” (“URNs”). The Amendment further authorized the County Commission to impose additional requirements for “voluntary annexation” at any time in the future. For unincorporated areas not in the UPA or URN, the proposed Charter Amendment gave the County Commission the right to adopt by ordinance an annexation method “no more restrictive than general law regarding the substantive requirements for such annexations.”

On December 23, 2004, appellants filed a renewed Motion for Temporary Injunction, asking the court to enjoin the County from drafting an ordinance in reliance on the Charter Amendment. The court again denied the motion. The County proceeded to draft its ordinance.

On December 10, 2004, appellants filed a Motion for Summary Judgment, and on March 15, 2005, the County filed its response and a cross-motion for Summary Judgment.

The trial court found that section 171.044(4), Florida Statutes, requires that any exclusive method must be set forth in the charter itself, and not provided for by ordinance.

The court ruled that certain portions of the Amended Charter did contain a valid voluntary annexation method. The trial court severed the Charter and excised three provisions. The court let the remaining portions stand as the County’s exclusive method of voluntary municipal annexation.

The issue we address is whether the trial court erred in finding that section 171.044(4), Florida Statutes, authorizes counties to devise their own methods of voluntary municipal annexation. Section 171.044(4), Florida Statutes (2004), provides as follows:

171.044 Voluntary annexation.—
(4) The method of annexation provided by this section shall be supplemental to any other procedure provided by general or special law, except that this section shall not apply to municipalities in counties with charters which provide for an exclusive method of municipal annexation.

Appellants argue that section 171.044(4) does not allow charter counties to adopt new charter-based voluntary annexation methods for three reasons. First, they argue the Florida Constitution states that all “[m]unicipal annexation of unincorporated territory ... shall be as provided by general or special law.” Art. VIII, § 2(c), Fla. Const. (2005). Counties, they therefore urge, cannot alter the methods of annexation because it is the sole power of the legislature, which enacts general and special laws. Second, they urge that section 171.044(4) is simply a clarifying savings clause to avoid violation of the supplemental voluntary annexation statute (section 171.044, Florida Statutes) by Dade County. Dade County has an exclusive method of municipal annexation that would otherwise violate the statute without the savings clause. Third, they argue the word “voluntary” cannot be added to the phrase “municipal annexation” in subsection 171.044(4), Florida Statutes, even though the section is entitled “Voluntary Annexation.” Adding “voluntary” would conflict with the subsection’s plain and obvious meaning that it applies to all forms of “municipal annexation.”

PBC argues that the court did not err, as section 171.044, Florida Statutes, authorizes counties to establish their own exclusive method of voluntary annexation.

Section 1 of the Florida Constitution, as amended provides broad home rule powers on charter counties:

(g) CHARTER GOVERNMENT. Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances.

Art. VIII, § 1(g), Fla. Const. (2005).

Amendments to a county charter must be consistent with the Florida Constitution, general law, and special law. See Charlotte County Bd. of County Comm’rs v. Taylor, 650 So.2d 146, 148 (Fla. 2d DCA 1995).

A “general law” operates universally throughout the state, uniformly upon subjects as they may exist throughout the state, or uniformly within a permissible classification. Martin Mem’l Med. Ctr., Inc. v. Tenet Healthsystem Hosp., Inc., 875 So.2d 797 (Fla. 1st DCA 2004). A “special law” is one relating to, or designed to operate on, particular persons or things, or one that purports to operate on classified persons or things when classification is not permissible or the classification adopted is illegal. Schrader v. Fla. Keys Aqueduct Auth., 840 So.2d 1050 (Fla.2003).

However, under subsection 171.044(4), Florida Statutes, if a charter of a county contains an exclusive method of municipal annexation, the procedures set out in section 171.044 do not apply and parties must follow the procedures of that charter.

In this case, the trial court found that subsection 171.044(4) allows charter counties to regulate voluntary annexation. The trial court found that to the extent that section 171.044(4) refers to “an exclusive method of municipal annexation,” that reference must be interpreted as “voluntary” because it falls under the statute entitled “Voluntary Annexation.”

A heading of a section or subsection of a statute is part of the law and can be used to glean statutory intent. See Dep’t of Revenue v. Val-Pak Direct Mktg. Sys., 862 So.2d 1 (Fla. 2d DCA 2003); Fajardo, v. State, 805 So.2d 961 (Fla. 2d DCA 2001) (title of a legislative enactment may be helpful in construing an ambiguous statute).

Appellants argue that the trial court erred because in section 171.044(4) the word “voluntary” is not used in the subsection to describe the method of annexation. Nonetheless, “[i]f the language is clear and unambiguous, we must apply the statutory provisions according to their plain meaning and as the Legislature wrote them.” G.E.L. Corp. v. Dep’t of Envtl. Prot., 875 So.2d 1257, 1260 (Fla. 5th DCA 2004). “A court’s function is to interpret statutes as they are written and give effect to each word in the statute.” City of Miami v. Valdez, 847 So.2d 1005, 1008 (Fla. 3d DCA 2003). The method of annexation under section 171.044 is entitled “Voluntary Annexation.” Within subsection (4) is the reference to the method of annexation by clarifying as “provided by this section.” Therefore the method of annexation that is the subject of subsection (4) is voluntary annexation.

Based on the foregoing, we hold the trial court correctly interpreted subsection (4) to allow charter counties to provide their own method of voluntary annexation.

The next issue we address is whether the trial court erred in attempting to sever the unconstitutional portions from the charter amendment.

Appellants argue that the lower court’s attempt to sever invalid portions of the charter amendment made section 171.044, Florida Statutes, inapplicable in Palm Beach County. Section 171.044 provides a method of voluntary municipal annexation, but if a Charter has an exclusive method of municipal annexation, then the methods of voluntary annexation provided for in section 171.044 would not apply.

PBC argues that severability can be applied to charter amendments and that the lower court properly engaged in the four-part analysis set out in Ray v. Mortham, 742 So.2d 1276 (Fla.1'999).

Section 6.4 of the Palm Beach County Charter, entitled “Savings Clause,” states: “If any provision of this Charter is held invalid, in whole or in part, such holding shall not affect any other provision of this Charter.” Furthermore, Part IV of the Charter Amendment ordinance contained a section entitled “Severability,” which states that “[i]f any section, paragraph, sentence, clause, phrase, or word of this Ordinance is for any reason held by a Court of competent jurisdiction to be unconstitutional, inoperative or void, such holding shall not affect the remainder of this Ordinance.” Ordinance 2004-021. Such severability clauses have been found to indicate an intent to retain the legislation without the invalid portions. See Ray, 742 So.2d at 1283 (“The initiative petition in this case specifically contained a sever-ability clause, which is persuasive of the fact that the framers intended severability to save the amendment in case portions of it were declared invalid.”).

The trial court used the analysis in Ray to sever and remove the invalid portions of the Charter Amendment. The court in Ray sets out a four-part test in determining if a statute is allowed to stand after a portion of the statute is found unconstitutional. Id. at 1280-81. As applied to charters, when a part of a charter amendment is declared invalid, the remainder of the charter amendment will be permitted to stand, provided:

(1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (8) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken.

Id. at 1281.

The trial court found three provisions within the Charter Amendment to be invalid:

(1) the amendment to [Article I,] Section 1.1, which states, “Palm Beach County has the power to establish by ordinance the exclusive method for voluntary municipal annexation, to the extent authorized by law,”
(2) the first sentence of newly-added Article VII, Section 1, which states, “all voluntary annexations shall be in accordance with the exclusive method for voluntary municipal annexation established by ordinance of the Board of County Commissioners,” and
(8) the fifth sentence of Article VII, Section 1, which states, “For voluntary annexations outside the unincorporated protection area, the ordinance regulating such annexations shall be no more restrictive than general law regarding the substantive requirements for such annexations.”

The trial court found these provisions to be invalid because they allowed the County Commission to define the exclusive method of voluntary municipal annexation for unincorporated areas not designated as either an “unincorporated protection area” or an “unincorporated rural neighborhood” by ordinance. The court concluded that the requirement in section 171.044(4) that the exclusive method of voluntary annexation be contained in the Charter itself was violated by allowing the County Commission to use an ordinance to accomplish the same goal. We agree and affirm as to this issue. We affirm as to all other issues raised on appeal and cross-appeal without further discussion.

Affirmed.

STEVENSON, C.J., and MAY, J., concur.

      . This opinion addresses the issues raised in the appeal filed by the Village of Wellington, City of Delray Beach, City of Lake Worth, Town of South Palm Beach, and City of Atlantis in Case No. 4D05-2666, and by the City of West Palm Beach in Case No. 4D05-2687. The City of West Palm Beach was not a signatory of the initial brief filed in this appeal nor did it separately file an initial brief. However, as a party in privity, it will be bound by the decision of this court. Cook v. State, 921 So.2d 631 (Fla. 2d DCA 2005).


text:
    In re Allan M. KATZ and Stephen J. Simone.
    No. 2006-B-1859.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel seeks review of a recommendation of the disciplinary board that the formal charges against respondents, Allan M. Katz and Stephen J. Simone, be dismissed. Having reviewed the record and the briefs of the parties, and considering the credibility determination made, we find the disciplinary board reached the correct result in dismissing the formal charges.

Accordingly, it is the judgment of this court that the formal charges against respondents be dismissed.

JOHNSON and TRAYLOR, JJ., dissent from the decision.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Carolyn DAVIS, Individually and as Administratrix of the Estate of the Minor Child, Barineisha Davis v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY and Vincent Piazza, Jr.
    No. 2005-CA-0980.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 2006.

      Michael I. Rodriguez, New Orleans, LA, for Plaintiff/Appel lee.
    Lori D. Brown, Law Offices of Harold G. Toscano, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

L Carolyn Davis filed suit against her landlord, Vincent Piazza, Jr., and his insurer, Allstate Property and Casualty Insurance Company, for damages allegedly sustained on April 6, 2000 by her minor daughter, Darineisha Davis. According to the petition, a piece of sheet metal attached to the Davis’s’ rental house fell on Darineisha, striking her left hand and causing injury. Ms. Davis sued individually for present and future medical and doctor bills, hospital and drug expenses and, on behalf of Darineisha, for her past, present and future pain and suffering, residual and/or permanent disability, past, present and future emotional upset, distress and mental anguish, claiming negligence and strict lessor liability.

Mr. Piazza and Allstate filed a general denial, pleading all provisions of the Allstate insurance policy, and denying fault. Mr. Piazza and Allstate pled Ms. Davis’ sole or comparative fault as the cause in fact of Darineisha’s alleged injury. These defendants alleged Ms. Davis’ fault to have consisted, inter alia, in failure to see what she should have seen under the circumstances, to use due care, to avoid the accident, to keep a proper | ¡lookout, to mitigate damages, to exercise due precautions and care for the safety and welfare of her minor child, assumption of risk, allowing the child to play in a location when she knew or should have known the dangers inherent in allowing this to take place, and negligent supervision of the child.

Following a bench trial, the district court entered judgment in favor of Ms. Davis individually and on behalf of her minor child and against Mr. Piazza and Allstate in the sum of $20,000.00 in general damages only. The judgment ordered Ms. Davis to assume responsibility for payment of any outstanding medical liens and to hold the defendants harmless from any claims of any medical health care provider. By amended judgment, the district court awarded legal interest from the date of judicial demand until paid and court costs. The trial court denied the defendants’ motion for new trial or, in the alternative, for remittitur.

Mr. Piazza and Alstate appeal, assigning as error the trial court’s failure to apportion a percentage of fault to Ms. Davis, its finding of permanent and residual damage in light of uncontroverted contrary medical evidence, and the allegedly excessive award of general damages absent evidence of permanent and residual damage to the child’s nerve and muscle. For the reasons that follow, we affirm.

Mr. Piazza and Allstate do not contest their liability for the tin sheeting his agents installed along the perimeter of the property approximately two years prior to the accident and that caused, at least in part, the damage to Darineisha’s hand.

IsMr. Piazza testified that he inspected the outside of the property located at 1532 France Street each time he collected rent and had not noticed any piece of metal hanging out into the alleyway. It was his practice, upon noticing a problem with his property or upon being advised of a problem by his tenants, to inform his maintenance man, David Johnson, who would make appropriate repairs. Mr. Johnson did not mention anything to Mr. Piazza about the sheet metal on the side of the Davis house being pulled away or hanging into the alley. Mr. Piazza also testified that he did not make a written record of his tenants’ complaints.

Darineisha testified that at the time of her accident she was with her cousin and a couple of her friends, all of whom were about her age, running in and out of the alley by her home. She was running from the back of the house to the front when she cut her left hand. Her mother was inside when the accident happened.

Ms. Davis testified that she lived at the France Street home for two or three years before the accident, and that the defective sheet metal existed for a couple of years prior to the accident. Ms. Davis said that she complained to Mr. Piazza about the condition of the sheet metal and was told that Mr. Johnson would take down the metal. Ms. Davis identified photographs showing sheet metal in apparent disrepair in the back of the property. She testified that the condition of the sheet metal around the property continued for a period of a couple of years in spite of her complaints to Mr. Piazza.

Ms. Davis testified that she was at home when Darineisha cut her hand on a piece of the sheet metal alongside the alley abutting the property. l4Her first notice of the accident occurred when she heard Darinei-sha and the children with whom she was playing screaming. Ms. Davis testified that she ran out of the house and saw that Darineisha had cut her hand and was bleeding. She wrapped her hand and brought the child to the Charity Hospital emergency room.

On cross-examination, Ms. Davis testified that at the time of the accident, Dari-neisha was five years old. Darineisha was playing outside with her cousins and friends, and Ms. Davis was “in and out”, of the house. Ms. Davis testified that she knew where Darineisha was playing and knew the area “backward and forwards, backwards and forward.” She testified that she allowed her child to play in the yard area while she was inside and did not see her cut her hand. Ms. Davis testified that the metal was loose prior to Darinei-sha’s accident. She testified that she did not know the accident would occur, however, she knew the loose tin was a dangerous condition.

At the Charity Hospital emergency room, ER personnel cleaned the wound and stitched up the cut. The hospital medical record dated April 6, 2000 confirms the diagnosis of a wide and deep laceration of Darineisha’s left palm with active bleeding. According to the emergency care record, ER personnel indicated that there was no muscle or nerve involvement. Fourteen nylon sutures secured the wound and the hand was placed in a protective splint. The child was to return to Charity Hospital in seven days for suture removal or sooner if pain, redness, swelling, pus or cyanosis were |Kto develop. The child’s father, Paul Piere, signed a receipt for a copy of the discharge plan together with information concerning two patient help lines.

Ms. Davis identified a photograph taken of Darineisha’s hand upon her return home.

On April 7, 2000, the day after the accident and emergency treatment at Charity Hospital, Ms. Davis took Darineisha to Children’s Hospital because the cut had become infected. According to the hospital record, Darineisha came to the Children’s Hospital emergency room complaining of pain at the site of the wound. Dr. Theodore Kretschmer diagnosed an infection. Following treatment of the wound, Dr. Kretschmer provided Ms Davis with follow-up care instructions. Ms. Davis signed an acknowledgement that she received and fully understood the instructions and was advised to return for a follow up in three days with her primary care physician.

Ms. Davis testified that subsequently, she took Darineisha to Dr. Tangpricha, her private pediatrician, who cleaned the wound, removed the stitches and told her to keep it closed, clean and dry. She testified that Darineisha saw Dr. Tangpri-cha several times.

Ms. Davis testified that Darineisha is left-handed, that her left hand was cut, and that the child suffers residual effects of the accident. Ms. Davis testified as to the residual effects:

If you grab her hand in that spot, she’ll say, “Oh, that hurt,” or she done wrote too much in school, she’ll come, “Oh, mama, my hand was hurting.” I say, “Probably from the cut.” It can’t be from nothing else, but from the cut.

|fiMs. Davis also testified that Darinei-sha’s hand is scarred. Plaintiff counsel asked Darineisha to show her hand to the trial judge and asked that the child herself be admitted in evidence as a trial exhibit, whereupon the trial judge, after having examined the child’s hand, found evidence of scarring at the base of the child’s palm.

In connection with Ms. Davis’ testimony, the trial court admitted Dr. Tangpricha’s medical records showing his treatment of Darineisha’s hand.

The trial court issued oral reasons for judgment, finding that the condition of the sheet metal presented an unreasonably dangerous condition that foreseeably could cause damage to a child like Darineisha. The court found that the injury to the child’s left hand left a permanent scar, and opined that “[t]he medical records from Charity [Hospital] indicated that the cut was as deep as her muscle and maybe even into her nerves.” Based on Ms. Davis’ testimony that Darineisha continues to experience pain and sensation in that area, the court found an indication of residual damage to the child’s hand as a result of the injury. The court then awarded general damages of $20,000 and found that there was no proof of any medical expenses. The trial court noted that any medical lien would have to be satisfied out of Ms. Davis’ judgment, and not by Mr. Piazza or Allstate.

On motion for new trial or, alternatively, for remittitur, the defendants argued that the trial court should have apportioned some degree of fault to Ms. Davis for negligent supervision of her child and failure to remove the metal herself prior to allowing the child and her cousins to play in the affected area. The defendants also argued that the amount of general damages should be reduced to reflect that Dar-ineisha sustained no nerve or muscle damage.

|7The basis for the trial court’s denial of the claim of Ms. Davis’ comparative fault is found in the following comment by the trial court:

I didn’t find any comparative fault, because the mother was supervising the child within the confines of the yard area and the alley. And the child injured herself on the house in the alleyway. She didn’t run out into the street. She wasn’t on the neighbor’s property. I don’t see any fault on the parent for letting the child play in the yard.
The evidence also bore out that the mother complained to her landlord and his helper, or someone who sort of maintained the property; he would come around, about that piece of tin. I think it is unreasonable for the mother to have to confine her child to inside or a certain portion of the yard because the landlord failed to maintain the property.

The defense counsel then argued that the fact that Ms. Davis removed the metal after the accident indicated that she could have done so prior to the accident when the landlord had failed to do so himself, which argument was rejected by the trial court.

Defense counsel argued for remittitur, noting that the only place in the medical records mentioning nerve and muscle involvement was in the Charity record, where there was a note that neither nerve nor muscle was involved in the injury. Counsel also noted that Darineisha did not testify to any residual pain or difficulty in school as a result of her injury. In denying the motion, the trial court relied on Ms. Davis’s testimony that Darineisha still experiences some tenderness to touch and when gripping her pencil or other objects for a long time and on the existence of scarring on Darineisha’s palm.

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96), p. 4, 666 So.2d 612, 614. Ferrell v. Fireman’s Fund Ins. Co., 94-1252, pp. 8-4 (La.2/20/95), 650 So.2d 742, 745; Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880, 882 (La.1993); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. When findings are based on determinations regarding the, credibility of witnesses, the manifest error- — clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. However, where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. It is only where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or more witnesses, that the trier of fact’s finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).; Cole v. State of Louisiana, Dept. of Public Safety and Corrections, 01-2123, p. p. 14 (La.9/4/02), 825 So.2d 1134, 1144.

Although we accord great deference to the fact finder, we are cognizant of our constitutional duty to review facts, not merely to decide if we, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. Ambrose v. New Orleans Police Department Ambulance Service, . 93-3099 (La.7/5/94), 639 So.2d 216, 221; Ferrell v. Fireman’s Fund Ins. Co., supra at p. 4, 650 So.2d at 745. Because we have this constitutional duty, we are compelled to determine whether the trial court’s decision was clearly wrong based on the evidence, or clearly without evidentiary support. As a reviewing court, we must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; we must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. BuRNs v. UHS of New Orleans, Inc., 02-1514, p. 12 (La.App. 4 Cir. 2/19/03), 841 So.2d 51, 58, citing Stobart, 617 So.2d at 882. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id. The reviewing court must always keep in mind that “if the trial court’s ... findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id.

linOn appeal, the defendants argue that this case requires an apportionment of some degree of fault to Ms. Davis, relying on several decisions of this Court.

In Barnes v. Pick, 311 So.2d 609 (La. App. 4 Cir.1975), the plaintiff worked in proximity to a ramp that had a crevice of several inches between the ramp and entrance door. Plaintiff sued for damages sustained when his foot slipped and fell into the crevice. This court found that the dangerous condition was obvious to the plaintiff, who testified that he thought it was dangerous, as did two co-workers. This court affirmed the trial court’s finding that the plaintiff was at fault because he was aware of the defect and it was such as to indicate to a reasonable-person that use of the defective ramp was apparently an imminently dangerous situation.

In Mayer on Behalf of Mayer v. Tulane Medical Center, 527 So.2d 329 (La.App. 4 Cir.1988), a mother sat reading in a clinic waiting room while her two year old daughter played in an adjacent playroom and an older child was being examined by a pediatrician. While the mother and doctor were conversing in the waiting room, the two year old left the playroom carrying a toy stick to the waiting room and fell, injuring herself with the toy. The trial jury assessed 60% fault to the mother and 40% to the clinic. The mother was familiar with the playroom and aware of the presence of the offending toy

In Jones v. Proctor, 96-2750 (La.App. 4 Cir. 6/25/97), 697 So.2d 304, a tenant’s child cut her leg on exposed nails in loose door molding in their apartment., This Court concluded that the trial court erred in not finding the plaintiff was comparatively at fault, and apportioned fault at forty percent as a result of the tenant’s failure to repair the loose molding so that the child would not be injured.,

__[ilBy analogy to the review of awards of damages for personal injuries the trier of fact is owed some deference in allocating fault, for the finding of percentages of fault pursuant to the comparative fault article, La.Civ.Code art. 2323, is also a factual determination. There is an analogy between excessive or inadequate quantum determinations and excessive or inadequate fault percentage determinations. In both, the trier of fact, unlike the appellate court, has had the benefit of witnessing the entire trial and of reviewing first hand all the evidence. Regarding the allocation of fault in this circumstance, the Supreme Court adopted the standard set forth in Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976). As the court pointed out in Coco, “The ultimate determination by an appellate court as to whether a given judge or jury abused their ‘much discretion’ as a matter of law is a judgment call. 341 So.2d at 335.” Clement v. Frey, 95-1119, 95-1163 (La.1/16/96), at p. 5, 666 So.2d at 609.

The Court in Coco held that “[o]nly after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.” 341 So.2d at 335. “It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply.to decide what it considers an appropriate award on the basis of the evidence.” Id. ... [Tjhere is an analogy between excessive or inadequate quantum determinations and excessive or inadequate fault percentage determinations. In both, the trier of fact, unlike the appellate court has had the benefit of witnessing the entire trial and of reviewing first hand all the evidence. Accordingly, we will apply the standard enunciated above in reallocating fault. After the court of appeal finds a “clearly wrong” apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s decision. Id.

Applying these principles to the instant case, it is our considered opinion after a review of the testimony and evidence adduced in this case, that the trial court did not abuse its great discretion in apportioning no fault 11gto Ms. Davis. The trial court accepted Ms. Davis as a credible witness and found that her actions did not rise to the level of a breach of her duty of parental supervision.

It is clear that we must not diminish the incentive for landlords to maintain their properties, particularly when the dangerous condition has been complained of and pointed out to the landlord. ' Considering the applicable jurisprudence, and the foregoing standard, and the record in its entirety viewed in the light most favorable to the plaintiff, we find no manifest error or abuses of the trial court’s discretion in the apportionment of fault.

Mr. Piazza and Allstate contend that the trial court’s award of $20,000.00 in general damages is excessive given the uncontroverted medical record showing only a subcutaneous flesh wound to Dari-neisha’s hand with no nerve or muscle involvement.

Our initial inquiry is whether the award for Darineisha’s particular injuries and their effects under the particular circumstances on this particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., supra; Bitoun v. Landry, 302 So.2d 278 (La.l9T4); Spillers v. Montgomery Ward & Co. Inc., 294 So.2d 803 (La.1974); Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993) cert. den. 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

|1sThe standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from the jurisprudence is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. It is only when the award is, in either direction beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., supra.

In order to reduce a general damage award, it is not sufficient for an appellate court to conclude that a lower award is more appropriate. The issue is whether we are compelled to conclude from the entirety of the evidence viewed in the light most favorable to the prevailing party in the trial court, that a rational trier of fact could not have fixed the awards of general damages at the level set by the trial judge or that this is one of those “exceptional cases where such awards are so gross as to be contrary to right reason.” See, Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir.1987); Youn v. Maritime Overseas Corp., supra, 623 So.2d at 1261. Stated another way, the standard of review for general damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or so low in proportion to the injury that it “shocks the conscience.” Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir.1991).

|14In the instant case, the trial court accepted Ms. Davis’ testimony that her daughter suffers at times from tenderness and difficulty in gripping with the affected hand, which is her daughter’s dominate hand.

This testimony furnishes a reasonable basis for the trial court’s finding of nerve damage and continuing pain and infirmity caused by the child’s injury. Because of this conclusion, consideration of awards for comparable injuries is not appropriate.

For the foregoing reasons, we affirm the amended judgment of the trial court.

AFFIRMED.

      . See, LSA-Const. Art. 5, section 10(B).


author: MICHAEL E. KIRBY, Judge. MURRAY, J.,

text:
    Lloyd V. GIOE v. The ALBACH COMPANY, INC. and The Gray Insurance Company.
    No. 2005-CA-0820.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 20, 2006.

      Leonard A. Washofsky, Leonard A. Washofsky, A Law Corporation, Metairie, LA, for Lloyd V. Gioe.
    S. Daniel Meeks, Reich, Meeks & Tread-away, L.L.C., Metairie, LA, for The Al-bach Company, Inc. and The Gray Insurance Company.
    Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE.
   MICHAEL E. KIRBY, Judge.

| ¶ This case involves a workers’ compensation claim filed by Lloyd V. Gioe against his employer, The Albach Company, Inc., and his employer’s insurer, The Gray Insurance Company. Claimant and defendants appeal the judgment of the Office of Workers’ Compensation ordering defendants to pay for claimant’s initial two days of hospitalization and testing performed during that period, and assessing penalties and attorney’s fees against defendants for failure to pay for the initial two days of hospitalization and testing.

On August 21, 2003, claimant was injured in an accident while in the course and scope of his employment as a fitter’s helper at The Albach Company in Chal-mette, Louisiana. Claimant was operating a device called a come-along, which is used to lift objects or pull objects together. The come-along jammed, and when claimant attempted to fix it, the metal handle released and struck claimant on the bridge of his nose. The fact that this accident occurred as described by claimant is not disputed. The main dispute in this case is whether or not the injuries claimant sustained in the accident resulted in a work-related disability. | ¡^Specifically, the primary issue is whether or not the accident caused acute seizures resulting from head trauma.

All parties agree that claimant sustained a laceration to his nose as a result of the accident. On the day of the accident, claimant was taken to the emergency room at Chahnette Medical Center. The medical records show that claimant underwent a CT scan that did not show any active bleeding, but claimant was admitted to the hospital for head trauma with concussion and multiple syncopal episodes (swooning or fainting) and in order to rule out seizures. Claimant remained at Chalmette Medical Center until September 4, 2003 when he was transferred to West Jefferson Medical Center, where he remained until September 9, 2003. While hospitalized, claimant underwent numerous diagnostic procedures, including CT scans, MRI (magnetic resonance imaging) studies and electroencephalogram (EEG) monitoring.

On the day of the accident, Dr. Salvador Murra, a neurologist, examined claimant at Chalmette Medical Center, and the medical records show that his impression was that claimant suffered head trauma with early posttraumatic seizures (complex partial seizures.) This diagnosis was based on an episode of continuous blinking during the examination. Dr. Murra admitted claimant to the Intensive Care Unit for observation and recommended that claimant undergo EEG testing. An EEG conducted the day after the accident, August 22, 2003, was normal, showing no epileptic or true seizure activity.

13Claimant was examined on August 24, 2003 by another neurologist, Dr. Michael Happel. Dr. Happel stated in his deposition that during his evaluation of claimant, he thought claimant had a complex partial seizure where he became unresponsive and his pupils dilated visibly and remained in that state for approximately two to three minutes. However, he noted that claimant was not undergoing EEG monitoring at the time. He explained that a complex partial seizure is much milder than a generalized seizure as seen in cases of epilepsy. Dr. Happel’s opinion was that other than the one complex partial seizure that he believed claimant experienced during the August 24, 2003 evaluation, the other seizure-like episodes exhibited by claimant during his hospitalization as described by family members and nursing staff were pseudoseizures rather than true epileptic seizures.

Dr. Happel recommended that claimant undergo a psychological evaluation. Claimant was prescribed anticonvulsant medication and was monitored for seizure activity during his hospitalization. Because claimant did not experience any seizures or seizure-like activity prior to the accident, Dr. Happel’s opinion is that the seizure activity was the result of the head trauma suffered in the accident. Dr. Hap-pel has continued to treat claimant since his release from the hospital, and stated in his deposition taken in June 2004 that he was hopeful that claimant would be able to return to his former employment by the end of 2004. At the time of trial in September 2004, Dr. Happel had not authorized claimant to return to work.

l4Pr. Michael Puente, a neurologist, testified by deposition that he examined claimant on September 4, 2003 while he was hospitalized at West Jefferson Medical Center. Claimant appeared sedated from medications he was taking. While observing claimant in the hospital, Dr. Puente remembered witnessing spells that appeared to be pseudoseizures, but he could not recall the exact details. He explained that pseudoseizures look like seizures, but are not; rather, they are based on underlying psychiatric factors. He recommended that claimant undergo a psychiatric evaluation. He did not observe any true seizure activity in the time he was involved in claimant’s treatment. He said he could not rule out brain damage from the way claimant’s accident was described to him.

Trial in this matter included testimony from two experts in the field of psychiatry, Dr. John MacGregor and Dr. Maria Carmen Palazzo. Dr.- MacGregor evaluated claimant four times in November 2003. He found that claimant showed no signs of brain injury. He diagnosed claimant as suffering from major depressive disorder. Dr. MacGregor stated that claimant disclosed that he had daily suicidal ideation, and thought of shooting himself in the head. Dr. MacGregor assumed claimant had immediate access to guns because he said he was a hunter. However, claimant assured Dr. MacGregor that he would not carry out this plan for the sake of his family. Dr. MacGregor admitted that he did not order that claimant be committed to a psychiatric facility or advise claimant to commit himself. Dr. MacGregor related claimant’s depression to the accident and | ¿resulting injuries, because claimant became depressed over restrictions placed on his ability to work and drive, among other things.

Dr. Palazzo was also accepted by the trial court as an expert in the field of neuroanatomy, in addition to being accepted as an expert in psychiatry. She explained that the field of neuroanatomy addresses effects of brain injuries from an anatomical standpoint. Dr. Palazzo stated that the description of the seizure-like episodes experienced by claimant during his hospitalization and the calming effect of sedation medications given to claimant after these episodes indicated to her that claimant was suffering from anxiety rather than true seizures. The medical records showed that claimant’s seizure-like activity stopped when Dr. Frank Culicchia, a neurologist who treated claimant at West Jefferson Medical Center, told him that these spells were anxiety reactions. Dr. Palazzo said that was very characteristic of pseu-doseizures.

Dr. Palazzo testified that the EEGs and CT scans in claimant’s medical records showed no evidence of any closed-head injury. She stated that the type of injury sustained by claimant would not result in a trauma-induced seizure because being struck in the part of the nose where claimant was struck would not cause trauma to the brain. Her opinion is that claimant’s seizures were pseudoseizures rather than true seizures, and she suspected that they were related to a traumatic childhood in which he was severely neglected and abused. Dr. Palazzo’s assessment of claimant was that the pseudoseizures were brought about by a conversion reaction or hysteria, which caused claimant to unconsciously feign |fiseizures and other symptoms in order to gain attention. She distinguished this behavior from a malingerer who consciously lies about his symptoms. She said patients with a conversion disorder must be confronted about it because they are not conscious of the fact that they are feigning physical symptoms that are not truly present.

Dr. Palazzo stated her opinion that claimant should have been discharged from the hospital and weaned off of the Tegretol anti-seizure medication as soon as it became apparent that his seizure-like activity was the result of pseudoseizures rather than true seizures. She said that it was appropriate for claimant’s employer to take him to the hospital immediately after his accident, because he was experiencing nausea and vomiting. However, when the EEG was normal the day after claimant was hospitalized, Dr. Palazzo’s opinion was that the medical staff at Chalmette Medical Center should have properly diagnosed claimant as experiencing pseudoseizures rather than true seizures and discharged him that day.

On appeal, the claimant argues that the Workers’ Compensation Judge (‘WCJ”) erred in holding that claimant’s work-related injury did not result in any disability. Claimant also contends that the WCJ erred in not finding that all of claimant’s hospitalizations and medical treatment following the accident were necessary and reasonable as a result of his injuries. Claimant further argues that the WCJ erred in not awarding him temporary total disability benefits from the date of the accident to the date of trial.

|7As stated above, it is undisputed that claimant suffered injuries in the course and scope of his employment on August 21, 2003. However, conflicting expert medical testimony was presented on the issue of whether or not these injuries resulted in a work-related disability. Specifically, the disputed issue is whether the claimant experienced any true seizures following the August 21, 2003 accident, or whether the episodes of seizure-like activity exhibited by claimant were psychological in nature, or pseudoseizures.

In the judgment, the WCJ stated his finding that claimant was not an entirely credible witness and portions of his testimony were not plausible. Even so, the WCJ concluded that a portion of claimant’s claim has merit. The WCJ found that the claimant’s work-related injury did not result in any work-related disability, and that most of claimant’s hospitalization and medical treatment was a result of a preexisting medical condition. The WCJ did find that the first two days of claimant’s hospitalization at Chalmette Medical Center and the diagnostic testing performed during that time period were related to the accident, and the defendants were ordered to pay those costs. However, the WCJ also found that the results of those diagnostic tests provided the employer’s insurer a reasonable basis upon which to controvert the balance of the claim. The WCJ assessed penalties against the defendants for failure to pay for the initial two days of hospitalization and testing, and also awarded attorney fees to claimant’s counsel.

The claimant in a workers’ compensation suit has the burden of proving by a preponderance of the evidence that there is a work-related disability. Donahoe v. Jefferson Council on Aging, Inc., 2004-0178, (La.App. 5 Cir. 10/26/04), 887 So.2d 549. On this issue, it is obvious that the WCJ accepted the opinion of Dr. Pa-lazzo that claimant’s seizure-like activity was entirely psychological in nature and not related to injuries suffered in the accident, and that the injuries did not result in any work-related disability. In doing so, the WCJ obviously rejected the opinions of other medical experts that claimant experienced at least one true complex partial seizure, that this was the result of head trauma suffered in the accident and that this injury resulted in a work-related disability. Furthermore, the WCJ stated that the claimant was not an entirely credible witness.

Dr. Palazzo’s opinion was bolstered by evidence that none of the many EEG’s performed during claimant’s lengthy hospitalization showed any sign of true seizure activity, and all seizure-like activity ceased when claimant was informed that this activity was caused by anxiety. Given the WCJ’s opportunity to hear the witnesses and evaluate their testimony and credibility, we cannot say that the decision to credit the testimony of Dr. Palazzo over that of the other witnesses on the issue of whether claimant suffered a work-related disability was manifestly erroneous. Because we find no manifest error in the finding that claimant did not suffer a work-related disability, we also find no merit in claimant’s argument that the WCJ should have awarded him temporary total disability benefits from the date of the accident to the date of trial plus penalties and attorney fees.

Furthermore, the WCJ did not err in limiting the defendants’ responsibility for claimant’s medical care to the first two days of hospitalization at Chalmette | flMedical Center and diagnostic testing conducted during that period and in finding that the results of those tests provided a reasonable basis upon which the defendants could controvert the balance of the claim. To recover medical expenses under La. R.S. 28:1203, a claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by a work injury. Daniels v. Keller Supply, Inc., 2002-2767, p. 9, (La.App. 4 Cir. 8/6/03), 854 So.2d 416, 422.

An EEG performed on claimant on his second day of hospitalization at Chalmette Medical Center revealed no sign of true seizure activity. Despite this test result, the medical staff at Chalmette Medical Center treated claimant with anti-convul-sant medication and held claimant for observation from August 21, 2003 until September 4, 2003 when his family transferred him to West Jefferson Medical Center. Dr. Palazzo testified that the Chalmette Medical Center staff should have recognized from the normal EEG results on the second day of hospitalization that claimant was experiencing pseudoseizures rather than true seizures. Although Dr. Palazzo also stated in another part of her testimony that three or four days of claimant’s hospitalization at West Jefferson Medical Center may have been appropriate, her testimony that tests performed on the second day of claimant’s stay at Chalmette Medical Center ruled out a true seizure condition provided the WCJ with a sufficient basis to rule that claimant’s subsequent treatment after his first two days at Chalmette Medical Center was not- reasonably |1nnecessary to treat a work-related injury. We find no manifest error in that conclusion.

Claimant’s appeal brief also includes several assignments of error related to Dr. MacGregor’s fees for his treatment of claimant and deposition fees. Dr. John MacGregor filed an intervention in the Office of Workers’ Compensation, claiming he was entitled to payment by defendants for the psychiatric evaluation he performed on claimant. In this intervention, Dr. MacGregor also claimed that he was entitled -to payment by defendants for- his deposition fee. The record shows that neither claimant nor any healthcare provider sought or obtained prior approval from the employer’s insurer for claimant to receive treatment from Dr. MacGregor. Dr. MacGregor claimed in his intervention that his treatment of claimant should be considered emergency care, which requires no prior approval from the employer’s insurer.

The judgment in this case did not include any award for Dr. MacGregor’s fees. In fact, the judgment is silent as to Dr. MacGregor’s intervention. Although claimant’s brief raises arguments regarding Dr. MacGregor’s claim for fees, the record does not show that Dr. MacGregor appealed or answered defendants’ appeal in this case. Therefore, the arguments relating to claims made in Dr. MacGregor’s intervention are not properly before this Court and will not be considered. See La. C.C.P. article 2133; see also Tabeo Exploration, Inc. v. Tadlock Pipe & Equipment, Inc., 617 So.2d 606 (La.App. 3 Cir.1993), Rachal v. Texas & P. Ry. Co., 61 So.2d 525 (La.App. 2 Cir.1952).

In Defendants also appealed, arguing that the WCJ erred in ordering them to pay claimant $2,000.00 in penalties and $4,000.00 in attorney fees. In claimant’s appeal brief, he argues that the amount of penalties and attorney fees awarded was insufficient and should be increased. The WCJ assessed penalties and attorney fees against defendants based on their failure to pay for claimant’s initial two days of hospitalization at Chalmette Medical Center and the diagnostic testing performed during that time. The WCJ found that the defendants had a reasonable basis to controvert the balance of the claim.

Defendants argue that the award of penalties and attorney fees was erroneous because they did not receive adequate notice of the claimant’s medical expenses for treatment at Chalmette Medical Center. The record shows that claimant’s attorney sent the employer’s insurer a demand letter dated October 2, 2003. In this letter, claimant’s counsel asked the insurer to pay claimant’s medical expenses, and noted that claimant was taken to Chalmette Medical Center after the accident and remained hospitalized there for 13 days, and was then transferred to West Jefferson Medical Center where he was hospitalized from September 4, 2003 through September 9, 2003.

Counsel stated in the letter that claimant’s medical expenses for his stay at West Jefferson Medical Center totaled $11,713.00, but did not set forth the costs of claimant’s medical expenses for his stay at Chalmette Medical Center. Counsel further stated in the letter that claimant was required to use his health insurance provided by his employer for his expenses, and noted that he was attaching copies 112of invoices for claimant’s medical expenses and statements from claimant’s healthcare insurer to the letter. Defendants argue that contrary to claimant’s counsel’s statement in the letter, the invoices and statements regarding claimant’s medical expenses were not attached to the October 2, 2003 letter.

La. R.S. 23:1201(E) provides that medical benefits payable under the Workers’ Compensation Act “shall be paid within sixty days after the employer or insurer receives written notice thereof.” La. R.S. 23:1201(F) provides for an award of penalties and attorney fees for failure to provide payment in accordance with La. R.S. 23:1201. The record shows that the October 2, 2003 demand letter is the only notice defendants received regarding claimant’s request for payment of medical expenses. Although the letter states that invoices for medical expenses and statements from the claimant’s healthcare insurer were attached, there is no evidence in the record that any invoices or statements regarding claimant’s medical expenses were presented to the defendants.

An award of penalties and attorney fees is not appropriate when there is no evidence that the employer or its insurer received a proper breakdown of charges for a claimant’s medical treatment. Stewart v. Self-Insurer’s Bureau, 626 So.2d 34 (La.App. 1 Cir.1993); Turner v. State, Through Department of Health and Human Resources, 475 So.2d 137 (La.App. 3 Cir.1985). Because claimant did not provide defendants with adequate written notice of his medical claims, we find that the WCJ erred in holding the defendants liable for penalties and attorney fees for 118failure to pay for claimant’s initial two days of hospitalization and diagnostic testing.

For the reasons stated above, the portion of the judgment awarding claimant penalties and attorney fées is hereby reversed. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

MURRAY, J., dissents in part with reasons.

MURRAY, J.,

dissents in part with reasons.

hi agree with the opinion in all but one respect. I respectfully disagree with the majority’s finding that Lloyd Gioe is not entitled to recover all of his medical expenses related to his hospitalization and treatment at Chalmette Medical Center and West Jefferson Medical Center. Although La. R.S. 23:1203 only provides for the recovery of medical expenses reasonably necessary for treatment of a medical condition caused by a work-related injury, the jurisprudence has extended this provision to cover “the complications suffered subsequent to work-related accidents ... [that are] the result of treatment the employee received.” 13 H. Alston Johnson III, Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice, Malone & Johnson § 236 (3rd ed.1994); Latiolais v. Emile Barras, Inc., 94-1153 (La. App. 3 Cir. 3/1/95), 651 So.2d 409.

In this case, Mr. Gioe sustained a work-related injury to his nose. During the treatment of that injury, he experienced seizure-like activity, which ultimately was diagnosed as pseudoseizures. In limiting Mr. Gioe’s recovery of medical expenses to the initial two days of hospitalization and testing, the Workers’ Compensation Judge (“WCJ”) reasoned that the most of the hospitalization and medical treatment was due to a pre-existing medical condition. In affirming that finding, the majority frames the issue as whether Mr. Gioe experienced any “true ^seizures” or whether the seizure-like activity was psychological in nature, or pseudoseizure. Given that the testing done on the second day of his initial hospitalization ruled out a true seizure disorder, the majority finds no error in the WCJ’s decision to limit the recovery of medical expenses to that two-day period. I disagree.

Mr. Gioe experienced seizure-like activity while being treated for his work-related nose injury. The medical treatment he received for that seizure-like activity, regardless of whether it was related to a pre-existing psychological condition, falls within the jurisprudential extension of La. R.S. 23:1203 for complications resulting from treatment related to a work-related accident. For this reason, I would find the employer liable for all the medical expenses incurred in connection with both hospitalizations. Accordingly, I respectfully dissent in part.


author: DAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Gary RILEY.
    No. 2005-KA-1311.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 20, 2006.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   DAVID S. GORBATY, Judge.

hOn May 26, 2004, Gary Riley was charged with one count of possession of heroin. At his arraignment on May 28, he pled not guilty. The court heard and denied his motion to suppress the evidence on July 16. The court reset trial several times, until March 21, 2005, when a twelve-person jury found him guilty as charged. On May 15, the defendant orally moved for a new trial and for reconsideration of the verdict, and also filed written motions for an appeal, for reconsideration of sentence, and to quash the multiple bill. The court noted that a multiple bill had not yet been filed, and thus the motion to quash it was premature. The court also denied the oral motions for new trial and to reconsider the verdict, and it noted that the motion for appeal would be granted “in due course.” The court then sentenced Riley to serve ten years at hard labor. The minute entry of sentencing notes that the court denied the motion to reconsider Riley’s sentence. Defendant subsequently filed this appeal.

FACTS

Officer Bryan Bordes testified that he and his partner Officer Rashi Reed arrested the defendant Gary Riley on May 16, 2004. The officers were on patrol in the 3600 block of Thalia Street in the B.W. Cooper housing project, an area |2known for loitering and drug activity, when they saw Riley stooping near a building in the project. Off. Bordes testified that when Riley saw the officers driving near him, he got up and ran into a hallway of the project. The officers exited their car, and Off. Reed chased Riley into the hallway and up some stairs. Off. Bordes stated that Off. Reed apprehended Riley, handcuffed him, and took him back down the stairs to the police car. Once there, the officers ran Riley’s name and discovered there was an outstanding warrant for his arrest. The officers contacted N.C.I.C. and verified that the warrant was still outstanding. They then arrested Riley and advised him of his rights, and Off. Bordes quickly searched Riley’s outer clothing, finding nothing.

Off. Bordes testified that before putting Riley into the police car, he checked the back seat and saw nothing on the seat. Off. Bordes stated that the officers then drove Riley to Central Lockup. On the way, the officers could see Riley squirming in the back seat of the squad car. Once at the lockup, the officers saw Riley discard something onto the back seat while exiting the car. Off. Bordes retrieved the object, which was a plastic bag containing four foil packets. The officer opened the bag and found powder inside the foil packets. Believing the substance in the packets to be heroin, the officers then arrested Riley for possession of heroin.

On cross-examination, Off. Bordes admitted he did not remember whether Off. Reed handcuffed Riley while still upstairs or until they had come back downstairs. He also was unsure if Off. Reed frisked Riley for weapons while still upstairs or after they had returned downstairs. Off. Bordes also did not remember if the officers went straight to the lockup after arresting Riley or if they made a stop at a police substation before going to the lockup. He did not remember where |3the officers completed their paperwork. Off. Bordes testified that it was the officers’ usual policy to search the back seat of the police car when they started their shift, as well as before and after transporting suspects in the back seat.

Off. Rashi Reed also testified that he and his partner routinely checked the back seat of the police car at the beginning of their shift, again before placing a prisoner in the back of the car, and once again at the end of the shift. He testified that Riley was the first person they placed in the back seat that day. He stated that they arrested Riley once the outstanding warrant was verified, and his partner searched Riley but found nothing. They put Riley in the back seat of the squad car. On the way to the lockup, they saw Riley squirming in the back seat. Once there, as they were removing Riley from the back seat, Off. Reed saw Riley drop a small bag on the seat. While Off. Reed held Riley, Off. Bordes retrieved the bag, which contained four foil packets containing what appeared to be heroin. The officers then arrested Riley for possession of heroin.

On cross-examination, Off. Reed testified that he first saw Riley standing next to the corner of a building in the housing project. He testified that when Riley ran, he chased Riley to the third floor. He apprehended Riley on the third floor, frisked him for weapons, handcuffed him, and took him back downstairs. He testified that the officers ran Riley’s name and discovered the outstanding warrant. They arrested him and advised him of his rights, and his partner searched him. Off. Reed testified that after putting Riley into the back seat of the car, they drove to a nearby police substation to get a supervisor to sign the outstanding warrant and an affidavit for trespassing because Riley did not live in the housing project where 14the officers arrested him. Off. Reed stated that he did not remember whether the officers took Riley inside the substation while getting the warrant signed. They then took Riley to the lockup, where he discarded the heroin. Off. Reed testified that there may have been an hour’s- gap between the arrest and Riley’s booking at the lockup because Off. Reed may have completed his paperwork in the police car prior to taking Riley inside for booking.

The parties stipulated that Off. “Sam” Nohn V. Hoang was an expert in the chemical analysis and identification of controlled dangerous substances. Off. Hoang testified that he tested the substances in the foil packets, and the powder inside the packets tested positive for heroin.

ERRORS PATENT

A review of the record reveals that the trial court denied the appellant’s motions for new trial and to set aside the verdict and then sentenced him on the same day without observing the twenty-four-hour delay mandated by La.C.Cr.P. art. 873. There is no indication in the transcript of sentencing that the appellant waived this delay. However, this error is not fatal to the sentence for two reasons. First, as per La.C.Cr.P. art. 852, a motion for new trial or in arrest of judgment must be in writing. At the sentencing hearing, defense counsel admitted he did not have written motions and was filing only oral motions, to be supplemented with written motions. There is no indication in the record, however, that counsel filed written motions for new trial or in arrest of judgment. Moreover, as per State v. Collins, 584 So.2d 356 (La.App. 4 Cir.1991), the failure to observe the twenty-four-hour delay mandated by La.C.Cr.P. art. 873 is harmless where the defendant does not complain of his sentence on appeal. See also State v. Wheeler, 04-0953 (La.App. 4 Cir. 3/9/05), 899 So.2d 84. Here, the appellant is not challenging his |Bsentence on appeal. Thus, any failure to observe La. C.Cr.P. art. 873’s delay is harmless.

There are no other patent errors.

DISCUSSION

In his sole assignment of error, the appellant contends that the trial court erred by denying his motion for mistrial based upon statements made by the prosecutor during closing argument. Specifically, he argues that these statements, which were comments on the credibility of the police officers, unduly bolstered their testimony, there by causing the jury to convict the appellant even in the face of inconsistencies in the officers’ testimony.

The remarks to which the appellant refers occurred during the State’s closing argument. Defense counsel’s cross-examination of the officers highlighted the contradictions in their testimony on certain facts concerning the stop and its aftermath. During the State’s argument, the prosecutor referred to this tactic and theorized that if defense counsel’s insinuations were true, the officers would have had to conspire to lie that the appellant, whom they did not know, abandoned drugs in the back seat of the police car. To counter the defense that the officers were lying about the arrest, the prosecutor reminded the jury that the appellant was charged with a drug offense, not something as serious as murder. Defense counsel objected at this point, and the prosecutor continued:

He’s charged with just possession of heroin, Ladies and Gentlemen. And I submit to you — I don’t know what defense attorney doesn’t want you to hear. But what you should hear is that these officers are not going to risk their careers just to set up Gary Riley for possession of heroin. Give me a break. These people put their lives on the line everyday [sic]. They work in COPS. They work in the housing projects everyday [sic]. How many of us want to do that everyday [sic]? I | fitell you I don’t. I don’t know how many of you up here would want to go in those project [sic] everyday [sic] and work. But you know what? They do it. They do it every day. Every time they leave their homes, they don’t know if they’re going to make it back. Police officers are shot and killed every .year.

At that point, defense counsel again objected and requested a mistrial. The court denied the motion, cautioning the prosecutor to “concentrate on what happened in here today.”

Because these comments do not fall within the mandatory mistrial requirements of La.C.Cr.P. art. 770, the appellant now argues that the court should have granted a mistrial or at least admonished the jury under art. 771, which provides in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770;
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

It must be noted that defense counsel did not request an admonition; thus, the trial court did not err by failing to admonish the jury.

In State v. Clark, 2001-2087, p. 15 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, 1183, this court set forth the standard for determining whether a prosecutor’s remarks are so prejudicial as to warrant a new trial:

|7The scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.” La.C.Cr.P. art. 774. Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. State v. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716. However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036, citing State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments that referred to “smoke screen” tactics and defense as “commie pinkos” were deemed inarticulate but not improper). Further, the trial judge has broad discretion in controlling the scope of closing arguments. Id. Even if the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Ricard, 98-2278, p. 4 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 397. Even where the prosecutor’s statements are improper, credit should be accorded to the good sense and fairmindedness of the jurors who have heard the evidence. Williams, supra; Ricard; supra.

The appellant argues that the prosecutor’s statements were designed to bolster the credibility of the officers, whose testimony contradicted each other on certain points. The appellant points out that the jury’s verdict was ten to two to convict, and he theorizes that absent the prosecutor’s endorsement of the officers’ credibility, he would not have been convicted.

General comments on the credibility of a witness are not prohibited if the record contains facts which bear on the witness’s credibility. State v. Sayles, 395 So.2d 695 (La.1981). In State v. Smith, 554 So.2d 676, 681 (La.1989), the Court stated:

| s[I]t has consistently been held to be reversible error for the prosecutor to express his belief in the guilt of the accused, or the credibility of a key witness, where doing so implies that he has additional knowledge or information about the case which has not been disclosed to the jury. State v. Kaufman, [304 So.2d 300 (La.1974)]; State v. Harrison, 367 So.2d 1 (La.1979); State v. Hamilton, 356 So.2d 1360 (La.1978); State v. May, 339 So.2d 764 (La.1976) (recognizing the stated rule but finding that the prosecutor’s comment did not imply to the jury that he had personal knowledge of facts not presented to them indicating the defendant’s guilt)....

Here, the prosecutor’s statements were somewhat based on the evidence presented at trial, in that the officers testified they were assigned to patrol the area which included the housing project, which one of them described as an area known for loitering and drug activity. Arguably, the statements were more likely inferences drawn from the testimony of the officers, which would still fit within the parameters of C.Cr.P. art 774. The statements’ purpose was to counter the defense that the officers lied about the appellant dropping contraband in the back of the police car. The statements point out that the officers would be risking their jobs merely to convict the appellant, whom they did not know until they stopped him. Thus, the statements were arguably material.

Moreover, the statements themselves were not so inflammatory as to create undue prejudice to the appellant by contributing to the verdict. Compare Clark, where this court found that the prosecutor’s comments did not warrant a new trial. The prosecutor stated that the amount of drugs found in the defendant’s possession represented two thousand needles sticking out of his arm, and that if not for the officers involved in the case, drugs would come “pouring” into the city’s streets. In State v. Harry, 2001-2336 (La. App. 4 Cir. 6/26/02), 823 So.2d 987, this court found the prosecutor’s statement, that the defendant was the type of person to 19approach the jurors’ children or someone they cared about and try to sell them drugs, was improper but did not contribute to the verdict and thus did not entitle the defendant to a new trial. See also State v. Williams, p. 15, 708 So.2d at 716, where the Court found that the prosecutor’s statements that the jury should no longer tolerate or excuse killings was not a plebiscite on crime; State v. Deboue, 552 So.2d 355 (La.1989), where the Court found it improper but harmless when the prosecutor stated that the “community is waiting for you to tell them what to do” and told the jurors that the defendants would merely laugh if given life sentences; State v. Johnson, 00-0680 (La.App. 1 Cir 12/22/00), 775 So.2d 670, where the court found improper but harmless the prosecutor’s exhortation to the jury to “do the right thing” as citizens of Baton Rouge; State v. Mims, 97-1500 (La.App. 4 Cir. 6/21/00), 769 So.2d 44, where this court refused to grant the defendants a new trial where the prosecutor referred to them as purveyors of drugs and “merchants of death;” and State v. Sugar, 408 So.2d 1329 (La.1982) where the Court noted that the prosecutor’s comments that the jury could not “let this happen in the community” and similar comments “flirted with reversible error,” but the Court reversed the defendant’s conviction on other grounds. Even in the case cited by the appellant, State v. Alexander, 575 So.2d 405 (La.App. 4 Cir.1991), this court found harmless error in the prosecutor’s statements that the defendant was a drug dealer who sold death and misery to his neighbors and their children.

Compared to the comments found to be harmless in the cases cited above, the prosecutor’s statements here are much less inflammatory. Thus, even if the the statements exceeded the scope of La. C.Cr.P. art. 774 they were not so prejudicial as to warrant the granting of a mistrial pursuant to La.C.Cr.P. art. 771. Contrary |10to the appellant’s argument, they do not appear to have contributed to the verdict because despite the inconsistencies in the officers’ testimony, they both testified that they saw the appellant abandon the drugs while getting out of the back seat of the officers’ ear. Therefore, the trial court properly denied the appellant’s motion for mistrial, and it did not err by failing to admonish the jury because counsel did not request an admonition. This assignment of error has no merit

CONCLUSION

Accordingly, for the foregoing reasons, we affirm the appellant’s conviction and sentence.

AFFIRMED.

      . The transcript is missing the first page of Off. Reed’s testimony, which apparently described the defendant’s actions that led the officers to notice and stop him.

      . Smith was overruled on other grounds, that being the ability of the Court to consider assignments of error in death cases in the absence of a contemporaneous objection, in State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.