author: CALOGERO, Chief Justice. VICTORY, J., WEIMER, J.,

text:
    Diane T. HORTON v. Robert J. MAYEAUX, State Farm Mutual Automobile Insurance Co., and Progressive Security Insurance Company.
    No. 2005-CC-1704.
    Supreme Court of Louisiana.
    May 30, 2006.

      Hannah, Colvin & Pipes, Baton Rouge, Janice M.C. Reeves, for applicant.
    Steven A. Adams; Porteous, Hainkel & Johnson, Charles L. Chassaignac, IV, Baton Rouge, for respondent.
   CALOGERO, Chief Justice.

hWe granted the writ application filed by defendant, State Farm Mutual Automobile Insurance Co. (“State Farm”), to determine whether the district court exceeded its authority when it ordered a new trial on its own motion, while at the same time refusing to grant a motion for judgment notwithstanding the verdict (“JNOV”) filed by plaintiff, Diane T. Horton, a pleading that did not include an alternative motion for new trial. For the reasons set forth below, we find that a district court has authority to order a new trial on its own motion, pursuant to La.Code of Civ. Proc. arts.1971 and 1973, so long as the district court has continuing jurisdiction over the case because a party has filed a motion for new trial and/or a motion for JNOV. Thus, we affirm in this case the district court’s decision to order a new trial on its own motion.

FACTS AND PROCEDURAL HISTORY

This case arises out of a January 17, 2002, automobile accident that involved at least four vehicles traveling in the same direction on South Sherwood Forest Boulevard in the City of Baton Rouge. According to Ms. Horton’s petition, the accident was caused by the defendant, Robert J. Mayeaux, who failed to yield, | ¡.causing his 2000 Ford Excursion to strike the back of a stopped 1993 GMC 6000 that then struck Ms. Horton’s 1994 Honda Accord and forced her to strike the vehicle preceding hers. As a result of the accident, Ms. Horton claims that she suffered contusions and other trauma, including injury to her spine. Ms. Horton filed suit against Mr. Mayeaux and his liability insurance carrier, State Farm, as well as her uninsured/underinsured motorist (“UM”) insurance carrier, Progressive Security Insurance Co. (“Progressive”). Ms. Horton sought damages for past, present, and future physical and mental pain, physical disability, loss of enjoyment of life, medical expenses, loss of income and earning capacity, and other special damages. Ms. Horton also alleged that she was entitled to a jury trial and requested the same.

Prior to trial, the district court granted summary judgment on liability in favor of Ms. Horton. The trial to determine damages was originally scheduled by the district court as the second civil jury trial set for Tuesday, August 17, 2004. However, because of delays caused by the first-scheduled civil jury trial set for the same day, jury selection for Ms. Horton’s case was delayed until approximately 4 p.m. on Thursday, August 19, 2004. During the interim, Ms. Horton’s claims against her UM insurance carrier, Progressive, were settled and Progressive was dismissed from the suit. Following jury selection and opening statements, the presentation of evidence began at about 7 p.m. on August 19 and continued until approximately 9:30 p.m. The trial reconvened around 9:30 a.m. on Friday, August 20, 2004. The case was submitted to the jury at approximately 5:35 p.m. that day.

At approximately 7 p.m. on August 20, the jury returned a verdict awarding Ms. Horton a total of $37,000 for the following items of damages: $13,000 for past medical expenses, $8,000 for future medical expenses, $15,000 for past physical pain and suffering, and $1,000 for mental anguish and distress’. The jury did not make any | Sawards for future physical pain and suffering, loss of enjoyment of life, or disability. The district court signed a judgment in conformity with the jury verdict on Tuesday, August 31, 2004.

On August 27, 2004, several days before the district court signed the written judgment, Ms. Horton filed a motion for JNOV in the district court, pursuant to La.Code of Civ. Proc. art. 1811. Ms. Horton asserted in her motion for JNOV that “reasonable minds could not differ as to the amount of damages based upon the evidence presented.” Ms. Horton’s motion further stated as follows:

Mover shows that the verdict rendered by the jury in this matter during the late evening hours of Friday, August 20, 2004 was inconsistent in several particulars, namely that full recovery of all medical expenses was permitted, and accepting the treatment and diagnoses pertaining to those expenses as legitimate, the past pain and suffering amount of $15,000.00 and mental anguish and distress award of only $1,000.00 was abusively low; no award was made for loss of enjoyment of life or disability in spite of uncontroverted testimony concerning same and the jury awarded future medical expenses without any future pain and suffering, contrary to the law.

(Emphasis in original.)

A hearing on Ms. Horton’s motion for JNOV was held on October 8, 2004, after which the motion was taken under advisement and counsel for both parties were given three days to submit memoranda to the district court. A second hearing was held on February 9, 2005, after which the district court orally refused to grant Ms. Horton’s motion for JNOV, but instead ordered a new trial. At the end of the hearing, the district court explained its reasoning as follows:

In this particular instance, if this Court has worked the jury too hard, then that’s the error of the trial judge and not the jury. If the trial judge failed to give proper instructions and it visited unfairness to either side, then this court is obligated to correct that error or allow the appellate court to correct that error.
The testimony in this case was essentially unrefuted with respect to liability and several issues of damages, personal injury. The court is very familiar with the standard for JNOV. It’s a high standard, viewing |4the evidence in the light most favorable to the non-moving party, whether or not a rational trier of fact could find, [sic] And applying that to several issues as raised by the moving party in the motion for JNOV, this court could answer in the affirmative.
However, in the interest of justice, the court is of the opinion that there may have been some error committed by the trial court that militated against the petitioner. Therefore, it would be manifestly unjust to uphold the verdict. But the court is not going to grant a JNOV. It will grant a new trial. Judgment to be signed accordingly.

On March 10, 2005, the district court signed a written judgment stating, in pertinent part, as follows:

The Court, after hearing the argument of counsel and considering the law and evidence, for reasons orally expressed, on its own motion hereby orders that a new trial is GRANTED.
The Court does not grant plaintiffs request for judgment notwithstanding the verdict, finding it unnecessary to rule on that motion in light of its new trial ruling.

State Farm sought writs, which were denied by a panel of the court of appeal without reasons, with one judge dissenting, also without reasons. Horton v. Mayeaux, 05-0499 (La.App. 1 Cir. 5/31/05). This court granted State Farm’s application for supervisory writs. Horton v. Mayeaux, 05-1704 (La.2/3/06), 922 So.2d 1155.

DISTRICT COURT’S AUTHORITY TO ORDER NEW TRIAL

The primary question herein is whether a district court may order a new trial on its own motion as an alternative to granting a party’s motion for JNOV, when the motion did not request a new trial, even in the alternative. The same question was presented to this court in Stuart v. Cooper Tire & Rubber Co., 550 So.2d 641 (La.1989). In that case, a jury had entered a verdict in favor of the defendant, to which the plaintiff responded by filing a motion for JNOV, but not a motion for new trial. See Stuart v. Cooper Tire & Rubber Co., 544 So.2d 78, 79 (La.App. 1st Cir.1989). Following a hearing on the motion for JNOV, the district court took the matter under |fiadvisement, then on his own motion ruled both parties into court to show cause why a new trial should not be ordered instead of a JNOV. Id. The district court then entered judgment ordering a new trial and denying the motion for JNOV. Id. The defendant sought writs in the court of appeal, which found no support for the procedure utilized by the district court in any statutory authority or any federal or Louisiana jurisprudence. Id.

The plaintiff sought writs in this court, which summarily granted supervisory writs, stating as follows: “Judgment of the court of appeal is reversed; trial court order for new trial is reinstated.” 550 So.2d 641. Justices Marcus and Lemmon stated that they would have granted the writ for argument, while Justices Calogero and Lemmon concurred in the judgment, stating that they “would prefer that this court write an opinion addressing the issue whether a timely motion for a judgment notwithstanding the verdict impliedly includes an alternative motion for a new trial so that the trial court can grant either relief.” Id.

In its decision reversing the district court’s judgment ordering a new trial in Stuart, the court of appeal cited La. Code of Civ. Proc. art.1971, which provides as follows:

A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.

The court of appeal noted in Stuart that La.Code of Civ. Proc. art.1971 is a codification of the jurisprudence authorizing a district court to grant a new trial on its own motion. 544 So.2d at 79. In support of that statement, the court of appeal cited Mitchell, to Use of Tarrt v. Louisiana Industrial Life Ins. Co., 204 La. 855, 16 So.2d 855 (La.1943), in which this court held that, although a district court may order a | finew trial on its own motion, that action can only be taken within the delay period allowed for filing a motion for new trial, which was three days from the date of judgment at the time Mitchell was decided. Id. at 858, 16 So.2d at 459. Mitchell, in turn, relied on the following statement, quoted from State ex rel. Shreveport Cotton Oil Co. v. Blackman, Judge, 110 La. 266, 34 So. 438 (1903):

So far as granting the new trial was concerned, that might have been done, within the legal delays, by the Judge ex proprio motu. He has, within such delays, such control of the judgment that, if satisfied of an error committed, he may, with or without a formal motion for new trial having been filed by the party cast, direct the judgment he has rendered set aside and a new trial ordered.

Id. at 269, 34 So. 438. See also Iberville Bank & Trust Co. v. Zito, 169 La. 421, 125 So. 435 (La.1929), also cited by the court of appeal in Stuart. This court reached a similar result in Rodrigue v. Ziifle, 288 So.2d 630 (La.1974).

The court of appeal’s reliance in Stuart on the Mitchell and Shreveport Cotton Oil cases was misplaced because of an important factual distinction between those cases, on the one hand, and this case and Stuart on the other. In both Mitchell and Shreveport Cotton Oil, and incidentally in Rodrigue, the district court ordered a new trial after the underlying judgment had already become final because the delay for filing a motion for new trial and/or motion for JNOV had passed without any party filing either motion. Once the delay for filing a motion for new trial and/or JNOV has passed, the judgments became final and the appeal delay began. In fact, Subsection (A)(1) of La.Code of Civ. Procedure art. 2087, relative to devolutive appeals, provides specifically that appeals may be taken within 60 days of “the expiration of the delay for applying for a new trial or [JNOV] ... if no application has been filed timely.” Likewise, La.Code of Civ. Proc. art. 2123, relative to suspensive appeals, provides that appeals may be taken within 30 days of “the expiration of the delay for applying for a new trial or [JNOV] ... if no application has been filed timely.” 17However, when a application for new trial or JNOV has been timely filed, Subsection (A)(2) of both articles provides the delay period begins on the “date of mailing of notice of the court’s refusal to grant a timely application for new trial or [JNOV].”

In Stuart, and in this case, the filing of the motion for JNOV effectively interrupted the delay for filing an appeal until after the district court had ruled on the motion. Until that time, the judgment did not become final, meaning that it was subject to modification by the district court judge. Further, the district court had continuing jurisdiction over the case until it' had disposed of the timely-filed post trial motion. In effect, the filing of the motion for JNOV held the district court judgment in abeyance until the motion had been ruled upon. See Jabbia v. Sanders, 499 So.2d 1070 (La.App. 3 Cir.), writ denied, 501 So.2d 198 (La.1986). Thus, we find that the district court retained the authority to order a new trial on its own motion at any time prior to disposing of the motion for JNOV filed by Ms. Horton.

Our finding that a district court retains the authority to order a new trial on its own motion, even after the expiration of the delay for filing a motion for new trial, in cases in which one of the parties has filed either a motion for new trial or a motion for JNOV, is consistent with the language of La.Code of Civ. Proc. 1811(B), relative to motions .for JNOV, which .provides as follows:

If a verdict was returned, the court may allow the judgment to stand or may reopen the .judgment and either order a new trial or render a judgment notwithstanding the verdict. If no verdict was returned, the court may render a judgment or order a new trial.

(Emphasis added.) Thus, the Code of Civil Procedure article governing motions for JNOV specifically authorizes district courts to order a new trial in response to a motion for JNOV. Although La.Code of Civ. Proc. Art. 1811(A)(2) allows parties to join a motion for new trial with a motion for JNOV or to pray for a new trial in the alternative in a motion for JNOV, nothing in subsection (B), quoted above, indicates Lthat a district court is prohibited from ordering a new trial if the party seeking the JNOV fails to join a new trial motion or pray for new trial in the alternative. In fact, the language suggests that the ordering of a new trial is always appropriate in response to a party’s filing of a motion for JNOY. We therefore find that the district court did not exceed its authority when it ordered a new trial under the circumstances presented by this case. •

PROPRIETY OF GRANTING NEW TRIAL IN THIS CASE

Even if the district court had authority to order a new trial under the procedural circumstances of this case, as we have found, State Farm argues that the ordering of the new trial was inappropriate under the substantive circumstances of this case. Specifically, State Farm challenges the district court’s reasons for granting the new trial here, asserting that the district court abused its discretion in this case because none of the mandatory reasons for granting a new trial set forth in La.Code of Civ. Proc. art. 1972 support the district court’s order in this case. Specifically, citing La.Code of Civ. Proc. art. 1972(1), State Farm claims that the new trial order is inappropriate because the jury verdict was not clearly contrary to the law and the evidence. In support of its argument, State Farm cites this court’s recent decision in Martin v. Heritage Manor House, 00-1023 (La.4/3/01), 784 So.2d 627, in which this case quoted and emphasized the following language:

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

Id. at 3, 784 So.2d 630-31.

As State Farm acknowledges, the new trial order reviewed by this court in Martin was based solely on the mandatory grounds set forth in La.Code of Civ. Proc. art. 1972. In fact, this court repeatedly emphasized that fact, noting on several occasions that the district court’s only stated reason for granting the motion for new trial therein was its finding that the verdict was contrary to the law and evidence under La.Code of Civ. Proc. art. 1972(1). Id. When the district court cited the mandatory provisions of La.Code of Civ. Proc. art. 1972(1) to support its decision to grant the motion for hew trial, the district court indicated its belief that 'it was required to grant the new trial because of the presence of a mandatory ground. On appeal, this court noted that the verdict in Martin was not contrary to the law, and thus focused exclusively on whether the verdict was inconsistent with the evidence. Id. at 3, 784 So.2d at 630. Thus, this court noted, the district court’s granting of the motion for new trial “was directed squarely at the accuracy of the jury’s factual determinations.” 'Id. at 5, 784 So.2d 631-32

In the instant case, the district court’s written judgment states specifically that it is ordering the new trial “on its own motion.” Thus, the district court’s order in this case was based not on any of the mandatory grounds for granting a motion for new trial set forth in La.Code of Civ. Proc. art. 1972 and discussed in Martin, but rather on discretionary grounds, as allowed by La.Code of Civ. Proc. Art. 1973. Under the express terms of that provision, “[a] new trial may be granted in any case if there is good ground therefore, except as otherwise provided by law.” (Emphasis added.) La.Code of Civ. Proc. art. 1973 allows a district court to use its discretion to order a new trial whenever it is “convinced by [its] examination of the facts that the judgment | inwould result in a miscarriage of justice.” Lamb v. Lamb, 430 So.2d 51, 53 (La.1983) In fact, Louisiana courts have traditionally held that, when a district court is convinced that a miscarriage of justice has occurred, it has “virtually unlimited discretion to grant a new trial,” and, “unless an abuse of discretion can be demonstrated, a trial court’s action in granting or denying a new trial on discretionary grounds will not be reversed.” See, e.g., Johnson v. Missouri Pacific R.R. Co., 00-0980 (La.App. 3 Cir. 7/25/01), 792 So.2d 892; Capitol Nursing Home, Inc. v. Nixon, 99-0378 (La.App. 1 Cir. 3/31/00), 764 So.2d 1016, and cases cited therein. Generally, the only requirement has been that the district court “state an articulable reason or reasons as to why he is exercising his discretionary powers.” Burris v. Wal-Mart Stores, Inc., 652 So.2d 558, 562 (La.App. 1 Cir.), unit denied, 654 So.2d 562 (La.1995).

In this case, the district court stated just such “an articulable reason or reasons as to why he is exercising his discretionary powers.” Id. In ordering the new trial, the district court indicated that it was convinced, because of the circumstances surrounding the trial, that the judgment would result in a miscarriage of justice. In so finding, the district court specifically tracked this court’s statement in Lamb that a district court’s finding that upholding the jury’s verdict would result in manifest injustice is a “good ground” for granting a new trial on the court’s own motion, as allowed by La.Code of Civ. Proc. art. 1973. Further, the district court’s finding in this case that manifest injustice would result from upholding the jury verdict is supported by the trial record itself, as the court repeatedly admonished counsel to hurry because of the late hour and stated that the jury had been “pushed to the max.” It is also undisputed that questioning of one of plaintiffs doctors concluded at 9:30 p.m. — 30 minutes after the air conditioning system shut down on a late August night Inin Baton Rouge, Louisiana. Under the circumstances, we find no abuse of the district court’s discretion to order a new trial on her own motion.

Our decision in this case is not intended to call into question the stricter standards for reviewing the granting of a motion for new trial on mandatory grounds set forth in the Martin case. As previously noted, the district court’s breadth of discretion to order a new trial “varies with the facts and circumstances of each case.” Martin, 00-123 at 7, 784 So.2d at 632. That being the case, our decision herein is based on the fact that the discretionary grounds for ordering the new trial on a district court’s own motion under La.Code of Civ. Proc. art. 1973 differ substantially from the mandatory grounds for granting a motion for new trial under La. Code of Civ. Proc. 1972, and particularly from the grounds for granting a mandatory motion for new trial based on the district court’s finding that the verdict is contrary to the evidence. As such, different considerations must be applied when appellate courts review the different types of judgments granting new trials. Further, when a mandatory new trial has been granted on the district court’s finding that the verdict is contrary to the evidence, the possibility that the district court has usurped the jury’s fact finding role is a major concern. When a district court grants a mandatory motion for new trial on the grounds that the verdict is contrary to the law and/or the evidence, it is indicating its belief that it must grant the motion because of some failing on the part of the jury to properly apply the law or the facts.

On the other hand, when a district court orders a new trial on its own motion because it is concerned that the judgment will result in substantial injustice, its decision does not undermine the jury’s fact-finding function. Rather, ordering a new trial on discretionary grounds is more likely to indicate, as it does in this case, that the district court is concerned about some failing on its own part to conduct the trial in | lf>a manner that assures that justice has been done. In such a situation, the district court is in a much better position to determine whether the circumstances under which the trial was conducted were appropriate. Thus, Louisiana courts have developed the traditional rule that the district court has virtually unlimited discretion to order a new trial on its own motion for discretionary grounds, so long as “good grounds” for doing so exist. Applying that rule to this case, we find no abuse of the district court’s great discretion. Accordingly, the judgment ordering the new trial is affirmed.

DECREE

The district court judgment ordering a new trial in this case is affirmed. The case is remanded to the district court for further proceedings consistent with this decision.

AFFIRMED AND REMANDED.

VICTORY and WEIMER, JJ., dissent and assign reasons.

TRAYLOR, J., dissents for reasons assigned by WEIMER, J.

VICTORY, J.,

dissenting.

hi dissent from the majority opinion in this matter for the same reasons expressed by Justice Weimer. Further, I strongly disagree with the majority’s conclusion that “the ordering of a new trial is always appropriate in response to a party’s filing of a motion for JNOV.”

While a trial judge does have the discretionary authority to grant a new trial on his or her own motion, this “discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitle to the benefits of a favorable jury verdict.” Martin v. Heritage Manor House, 03-1023 (La.4/3/01), 784 So.2d 627. Further, “[a] trial court has no authority to grant a new trial, or to recall, modify, or set aside a judgment once the delay for filing a motion for new trial has passed, unless one of the parties has filed a timely motion.” Steven R. Plotkin, Louisiana Civil Procedure, Art. 1974, p. 346 (citing South Louisiana Bank v. White, 577 So.2d 349 (La.App. 1 Cir. 1991); Texas Eastern Transmission Corp. v. Cahanin, 343 So.2d 415 (La.App. 3 Cir. 1977)). As recognized by the majority, this Court in Mitchell, to the Use of Tartt v. Louisiana Industrial Life Ins. Co., 204 La. 855, 16 So.2d 855 (1943), has previously held that although a trial court may order a new trial on its own motion, that action can only be taken within the delay period allowed for filing a motion for new trial.

| ¡To hold that a timely motion for JNOV impliedly includes an alternative motion for new trial, and that consequently, the court can order a new trial on its own motion in favor of any party or on any issue, even if not raised by the party filing the motion for JNOV, and at any time as long as it is during the time period when the JNOV motion is pending, is not only judicial legislation, but is also patently unjust. There are many reasons why a party may chose to only file a motion for JNOV without filing the alternatively available motion for new trial. For instance, the verdict as it stands, even if not completely satisfactory to the party filing the motion for JNOV, might be far preferable to running the risk of a new trial with a less favorable outcome. Similarly, even in ruling on the JNOV motion, the trial court can only modify the trial court judgment as it relates to those issues raised by the party filing the motion, and the trial judge may not change the verdict in a manner which favors a party which has not filed a motion for JNOV. See Plotkin, supra at p. 189.

Contrary to the language in La. C.C.P. art. 1811(A) that a party filing a motion for JNOV may join with it a motion for new trial or may pray for a new trial in the alternative to filing a motion for JNOV, parties should beware that according to the majority opinion, the filing of a motion for JNOV now automatically includes a motion for new trial, and they should think twice before filing one.

For the above reasons, and for the reasons expressed by Justice Weimer, I respectfully dissent.

WEIMER, J.,

dissenting.

|! Although I agree the district court had authority to order a new trial under the procedural circumstances of this case, I believe the new trial was inappropriate under the substantive circumstances of this case.

Much of this court’s recent statement in Martin v. Heritage Manor House, 2000-1023, (La.4/3/01), 784 So.2d 627, quoted by the majority, applies to the discretionary ground of Louisiana Code of Civil Procedure Article 1973.

The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact[-]finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility.

Martin, 2000-1023 at 3, 784 So.2d at 630, quoting from Gibson v. Bossier City General Hospital, 594 So.2d 1332, 1336 (La.App. 2 Cir.1991).

Although a district court has virtually unlimited discretion to grant a new trial that discretion does have limitations. See Horton v. Mayeaux, 2005-1704, at p. 344 (La.5/30/06). As the majority notes, the district court should “state an articulable reason or reasons as to why [it] is exercising [its] discretionary powers” in granting a new trial. Burris v. Walmart Stores, Inc., 652 So.2d 558, 562 (La.App. 1 Cir.) writ denied, 654 So.2d 3352 (La.1995) cited in Horton, at p. 344. The trial court only tentatively indicated the jury may have worked too hard in this matter: “In this particular instance, if this Court has worked the jury too hard, then that’s the error of the trial judge and not the jury.” However, testimony only lasted two and a half hours on the first day of trial. When asked by the trial court if they preferred to start at 9:30 a.m. or 10:00 a.m., the jury voted to start the next day at 9:30 a.m. Then, on the second day of this two-day trial, they worked a full day from 9:30 a.m. to 5:30 p.m.

This was not an especially complicated case. I note the jury deliberated for approximately an hour and a half, indicating they did not summarily resolve the case. Juries often work hard and stay late. It sets a dangerous precedent to nullify a jury verdict on the basis of this record. I would find an abuse of discretion in granting a new trial which neither party requested.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Edward Eugene SUMPTER.
    No. 2006-B-0576.
    Supreme Court of Louisiana.
    June 2, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Edward Eugene Sumpter, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In May 2000, Monica Daigle Dowden retained respondent to file a Chapter 7 bankruptcy proceeding. Ms. Dowden paid respondent $750 plus $200 for court costs. Respondent instructed Ms. Dowden not to pay any bills she did not intend to reaffirm or debts that were to be- discharged. In January 2001, respondent presented Ms. Dowden with the bankruptcy petition for her signature. Thereafter, respondent had little or no contact with his client until she called him in October 2001 requesting a status report on her bankruptcy. Respondent informed Ms. Dowden that her bankruptcy petition had not been filed because the court now required additional documents. Ms. Dowden completed and signed new forms in November 2001. In January 2002, respondent informed Ms. Dowden the bankruptcy petition had been filed. In February 2002, Ms. Dowden began trying to contact respondent for a status report; however, respondent failed to return her calls. In March 2002, Ms. Dowden learned that respondent never filed her bankruptcy petition.

pin response to the complaint Ms. Dow-den filed with the ODC, respondent admitted that he neglected the bankruptcy matter. Respondent also accepted responsibility for failing to keep Ms. Dow: den informed of the status of her bankruptcy. However, he indicated that he became depressed after his father passed away in July 2000, and that by September 2001, he had shut down his private law practice altogether. Respondent expressed his remorse, offered Ms. Dowden an apology for his wrongful handling of her bankruptcy, and indicated he wished to make restitution to Ms. Dowden.

In December 2004, respondent, through his attorney, paid Ms. Dowden $950 in restitution.

DISCIPLINARY PROCEEDINGS

Following its investigation, the ODC filed one count of formal charges against respondent, alleging his conduct violated the following Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(6) (failure to refund an unearned fee), 1.15(c) (commingling, client funds with the lawyer’s own funds), 1.16(a) (declining or terminating representation), 1.16(d) (obligations upon termination of the representation), 8.4(a) (violation of the Rules of Professional |aConduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent was served with the formal charges via certified mail delivered on April 23, 2004. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Respondent initially filed nothing for the hearing committee’s consideration, and on December 13, 2004, the hearing committee recommended that respondent be suspended for one year and one day, with six months deferred, subject to one year of supervised probation and full restitution. On December 29, 2004, respondent filed with the disciplinary board a motion to remand for an opportunity to introduce evidence in mitigation and an objection to the hearing committee’s proposed discipline. The board panel chair granted respondent’s motion and remanded the matter to the hearing committee to receive evidence in mitigation. Thereafter, both parties submitted written arguments and documentary evidence for the committee’s consideration.

Respondent argued that his admitted misconduct was probably due to the depression he suffered following his father’s death as well as other personal and medical problems. While the ODC did not challenge respondent’s description of his personal, financial, physical, and emotional problems, it argued that respondent does not show how these problems caused him to fail to fulfill his responsibilities to Ms. Dowden.

\ ¿Hearing Committee Recommendation

After reviewing the submissions of respondent and the ODC, the hearing committee made factual findings as follows:

Ms. Dowden retained respondent to handle her bankruptcy in May 2000. He advised her not to pay any bills that she did not intend to reaffirm. He collected from Ms. Dowden $750 in fees and $200 in court costs. Respondent prepared the pleadings but did not have Ms. Dowden sign them until January 2001. Thereafter, respondent had virtually no contact with Ms. Dowden. He also failed to timely file the pleadings. Pursuant to respondent’s instructions, Ms. Dowden did not pay certain bills. Eventually, she defaulted on her student loans and had her paycheck garnished by a creditor who obtained a default judgment against her. In October 2001, Ms. Dowden contacted respondent for a status report on her bankruptcy and to discuss the adverse judgment. Respondent informed her that the bankruptcy had not been filed, that she needed to sign new pleadings, and that he would file the bankruptcy immediately thereafter. Again, he failed to file the pleadings and failed to communicate with Ms. Dowden.

Essentially, respondent failed to timely file Ms. Dowden’s bankruptcy pleadings. He was advised of his failure but again knowingly failed to file the pleadings. He accepted, commingled, and failed to timely return the fees and costs paid by Ms. Dowden. He also failed to keep Ms. Dow-den informed of the status of her legal matter, and failed to properly and timely withdraw from the representation. Ms. Dowden suffered financial harm because of respondent’s conduct.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. He violated duties owed to his client and as a professional. He acted knowingly and caused harm to his [fidient. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is a period of suspension.

In mitigation, the committee found respondent suffered from numerous personal problems. It recognized respondent attempted to make restitution and stands ready to make restitution. It further found respondent has no prior history of ethical violations. Finally, it noted respondent is practicing only as an assistant district attorney and has no civil practice. The only aggravating factor found by the committee was vulnerability of the victim.

Considering the circumstances, the committee recommended that respondent be suspended from the practice of law for a period of one year and one day, fully deferred, subject to one year of supervised probation with conditions.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the factual allegations of the formal charges were proven by clear and convincing evidence. The board agreed that respondent violated the Rules of Professional Conduct as charged, with the exception of Rule 1.15(c), as to which there is no factual basis.

Based on these findings, the board determined that respondent violated duties owed to his client and as a professional. Respondent acted knowingly and caused [ Bharm to his client, depriving her of her funds during his period of inaction, delaying her legal matter nearly two years, and requiring her to hire other counsel to handle her bankruptcy. The board determined that the baseline sanction is a period of suspension according to the ABA’s Standards for Imposing Lawyer Sanctions.

The board adopted the aggravating and mitigating factors found by the committee and agreed that the baseline sanction is a suspension for one year and one day. The board also agreed that the suspension should be deferred in light of the significant mitigating factors and considering that the misconduct was not the result of a dishonest or selfish motive.

Accordingly, the board recommended that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to one year of unsupervised probation with the conditions recommended by the hearing committee.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

In the instant case, the underlying facts are undisputed. The record establishes respondent neglected Ms. Dowden’s bankruptcy matter, failed to communicate with 17her, misled her as to the status of the bankruptcy on one occasion, failed to refund the unearned fee, and failed to withdraw from the representation when he closed down his private practice. In acting as he did, respondent violated Rules 1.3, 1.4, 1.5(f)(6), 1.16(a)(d), 8.4(a), and 8.4(c).

Having found professional misconduct, the sole remaining issue presented for our consideration is the appropriate sanction for respondent’s misconduct. In imposing a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The hearing committee and disciplinary board correctly determined that the baseline sanction for respondent’s misconduct is a period of suspension. The sole aggravating factor present is vulnerability of the victim. By contrast, we recognize several mitigating factors, including absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems, character or reputation, and remorse.

Considering the totality of the facts, we conclude a suspension from the practice of law for a period of one year and one day is the appropriate sanction for respondent’s misconduct. However, in view of the significant mitigating factors, we will defer this suspension in its entirety, and place respondent on one year of unsupervised probation subject to the conditions recommended by the hearing committee.

IsDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Edward Eugene Sumpter, Louisiana Bar Roll number 21152, be suspended from the practice of law in Louisiana for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of unsupervised probation governed by the conditions set forth in the hearing committee’s report. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent now works as an assistant district attorney prosecuting misdemeanors for the Calcasieu Parish District Attorney’s Office.

      . In his April 2002 response to Ms. Dowden's complaint, respondent said that he would send the ODC a $950 money order for Ms. Dowden; however, the ODC instructed respondent not to send the money order to its office. When respondent asked if it was permissible for him to send the money order directly to Ms. Dowden, the ODC informed him it could not provide him with legal advice.
      Later, in its written arguments filed in response to the deemed admitted order, the ODC argued that respondent’s offer to refund the fees and costs to Ms. Dowden by money order, instead of a trust account check, indicated he had commingled his own funds with Ms. Dowden’s funds in violation of Rule 1.15(c). As the disciplinary board correctly noted, the ODC makes an assumption on this point which is not supported by the evidence.

      . The conditions recommended by the committee were as follows:
      1. During the probation period, respondent be treated and monitored by an appropriate care provider for his physical and mental problems;
      2. During the probation period, respondent refrain from and be precluded from maintaining a civil practice;
      3. Respondent make full restitution with interest; and
      4. Respondent pay all costs associated with these proceedings.

      .The board noted that a practice monitor is not necessary because respondent's current employer, the Calcasieu Parish District Attorney's office, expressed a willingness to oversee respondent's compliance with the conditions of probation.


text:
    In re Judge Laleshia Walker ALFORD.
    No. 2005-O-2284.
    Supreme Court of Louisiana.
    June 13, 2006.
   ORDER

Treating Judge LaLeshia Walker Alford’s “Application for Rehearing with Supporting Arguments” as a Motion.for Dissolution of the Order of Interim Disqualification filed pursuant to Supreme Court Rule XXIII, § 27(e), and considering the response thereto filed by the Judiciary Commission of Louisiana,

IT IS ORDERED that the motion for dissolution of the order of interim disqualification be and hereby is denied. Judge Alford shall remain disqualified from exercising any judicial function on an interim basis pursuant to La. Const, art. V, § 25(C) and Supreme Court Rule XXIII, § 27, pending further orders of this court.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


text:
    In re Matthew M. COURTMAN.
    No. 2006-OB-1178.
    Supreme Court of Louisiana.
    June 13, 2006.
   ORDER

The Office of Disciplinary Counsel (“ODC”) has filed formal charges against respondent in six matters; has requested and received permission to file formal charges against respondent in nine pending matters; and is conducting an investigation into three new complaints which have been filed against respondent. Among other serious professional misconduct, these matters involve respondent’s misdemeanor convictions of theft and issuing worthless checks, neither of which he reported to the ODC, as well as his recent arrests for felony theft and issuing worthless checks totaling more than $12,700. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Matthew M. Courtman, Louisiana Bar Roll number 18854, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Matthew M. Courtman for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Matthew M. Courtman shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re Isaac Forman HAWKINS, III.
    No. 2006-B-1423.
    Supreme Court of Louisiana.
    June 14, 2006.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that Isaac Forman Hawkins, III, Louisiana Bar Roll number 18251, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re Ralphlone Audrey DAWSON.
    No. 2006-OB-1410.
    Supreme Court of Louisiana.
    June 14, 2006.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Ralphlone Audrey Dawson, Louisiana Bar Roll number 24370, be and she hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as she resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Jeannette Theriot Knoll Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Jeneine PARKER.
    No. 2006-KK-0053.
    Supreme Court of Louisiana.
    June 16, 2006.
   PER CURIAM.

hWrit granted. The judgment of the trial court, granting the defendant’s motion to suppress the evidence, is reversed.

Two New Orleans police officers, while on routine patrol, observed the defendant attempting to open the locked door of an obviously closed business. The business was closed even though it was mid-morning on a weekday. The officers approached the defendant and asked if she worked there, to which she replied in the negative. The officers observed that her eyes were bloodshot and that she was incoherent and unsteady on her feet. They asked her for identification and if she was on medication. She stated that she did not have any identification and that she had smoked crack cocaine earlier.

Given the defendant’s statement and her condition, the officer arrested her for drug incapacitation. As they were conducting a search incident to arrest, the officers discovered a cigarette pack containing crack cocaine. The state filed a bill of information charging the defendant with possession of cocaine in violation of La.Rev.Stat. 40:967 C(2).

In granting the defendant’s motion to suppress, the trial court found there was no probable cause to arrest the defendant and impliedly found that the search was | ¡.illegal- We find the trial court erred in its determination that there was no probable cause to arrest the defendant.

The officers did not need either reasonable suspicion for an investigatory stop or probable cause for an arrest to approach the defendant, inquire why she was attempting to open the locked door to a closed business, and ask for identification. Mere communications between officers and citizens implicates no Fourth Amendment concerns where there is no coercion or detention. State v. Fisher, 97-1133, pp. 4-5 (La.9/9/98), 720 So.2d 1179, 1183, (citing United States v. Watson, 953 F.2d 895, 897, n. 1 (5th Cir.1992), cert. denied, 504 U.S. 928, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992)). Under Section 54.405 of the New Orleans Municipal Code, it is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property. The state met its burden of showing the officers had probable cause to arrest the defendant for violation of the ordinance. At the hearing, the officer testified that the defendant was incoherent and unsteady on her feet. Her eyes were bloodshot and in response to their question of whether she was on medication, she replied that she had smoked crack cocaine. Given these facts, the trial judge erred in finding the police did not have probable cause to arrest the defendant for the offense of public intoxication. The officers had probable cause with respect to each element of the offense: the defendant was in public, manifestly under the influence of alcohol or drugs not therapeutically administered, to the degree that she endangered herself or property. Probable cause to arrest exists when the facts and circumstances known to the arresting officer, and of which he has reasonable and trustworthy information, are sufficient to justify a man of ordinary caution in the belief that the accused has committed an offense. State v. Ceasar, 02-3021, p. 6 (La.10/21/03),3 859 So.2d 639, 644. It is well established that a search incident to a lawful custodial arrest is a limited exception to the constitutional prohibition of warrantless searches. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973); State v. Breaux, 329 So.2d 696, 699 (La.1976).

The trial court ruling on the defendant’s motion to suppress is reversed. This matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

JOHNSON, J., dissents and would deny.


text:
    Debra L. LEARD v. William F. SCHENKER, Jr.
    No. 2006-C-1116.
    Supreme Court of Louisiana.
    June 16, 2006.
   PER CURIAM.

|! Finding that the court of appeal erred in reversing the trial court judgment granting involuntary dismissal of plaintiffs motion for expanded visitation, we grant this writ and reverse that portion of the court of appeal’s decree.

The trial court rendered a considered decree in this matter on May 31, 2002. The trial court awarded sole custody of the child to the father, Mr. Schenker, and terminated all visitation between the child and the mother, Ms. Leard. The judgment provided that if visitation were reinstated, it would be supervised and would be conditioned on Ms. Leard’s remaining in active treatment for at least six months with either a psychiatrist or another mental health professional recommended by her psychiatrist. Only after Ms. Leard had been in compliance with a plan of treatment for a minimum of six consecutive months would unsupervised visitation be considered. After the rendition of this judgment, the trial court, in the best interest of the child, granted Ms. Leard one hour per week supervised visitation prior to her Meeting the criteria set forth in the judgment. Ms. Leard subsequently moved for, inter alia, a change in the custody decree and for expanded visitation.

Trial of these motions was held on October 21, 2004 and March 16, 2005. Dr. James Arey testified in his capacity as the court appointed independent custody evaluator. The court had appointed Dr. Arey on September 13, 2001, prior to the first 12trial. At the second trial, Dr. Arey testified, in his capacity as an expert, that it was not in the child’s best interest to change the visitation order currently in place. At the conclusion of the plaintiffs case in chief, the trial court granted the defendant’s motion for involuntary dismissal of the amended petition for custody of the minor and took under advisement plaintiffs motion for expanded visitation. Subsequently, the trial court rendered a judgment granting the defendant’s motion for involuntary dismissal of the motion for expanded visitation, finding the plaintiff failed to present any evidence that increased visitation was in the best interest of the child.

The court of appeal reversed in part. The court of appeal found the trial court committed legal error by relying on Dr. Arey’s testimony in the absence of a proper foundation being laid for his testimony as an expert in child custody evaluation. It further found because Dr. Arey did not testify regarding the basis for his opinion, even if he had been properly qualified as an expert, his testimony could not be used to make a determination regarding plaintiffs request for increased visitation. The court of appeal vacated that part of the judgment denying a change in visitation and remanded the matter to the trial court for the appointment of an independent child custody expert to determine whether it is in the child’s best interest to have unsupervised visitation with his mother. The court of appeal further ordered that the appointed expert must render a report with reasons for the recommendation.

Mr. Schenker then sought a supervisory writ from this court, urging the court of appeal erred in vacating the trial court’s judgment regarding the visitation order. Relator avers that any objection to Dr. Arey’s qualifications was waived by plaintiff because it was not made in the trial court and therefore cannot provide the basis for an attack on appeal. He calls our attention to Evans v. Terrell, 27,615 (La. Ct.App. 2 Cir. 12/6/95), 665 So.2d 648, writ denied, 96-387 (La.5/3/96), 672 So.2d 695, [swhere that court held a party’s failure to timely object for the record to the qualifications of a child custody evaluator constitutes a waiver of the objection. Evans, 27,615 at p. 8, 665 So.2d at 653. We agree.

The factual basis for an expert opinion determines the credibility of the testimony. It is the responsibility of the opposing party to explore the factual basis for the opinion and thus, determine its reliability. Miramon v. Bradley, 96-1872, p. 6 (La. Ct.App. 1 Cir. 9/23/97), 701 So.2d 475, 478. We find the court of appeal erred in granting relief to the plaintiff on her assignment of error concerning the admissibility and reliability of Dr. Arey’s testimony. Plaintiff waived this objection when she failed to raise it at trial. La. Code Evid. art. 103 (an error cannot be predicated upon a ruling which admits evidence unless a timely objection appears of record).

Moreover, it appears from the showing made that an adequate foundation was laid and Dr. Arey explained the basis of his expert opinion. Contrary to the appellate court’s determination, Dr. Arey supported his expert opinion with a letter from him to the trial court, that was admitted into evidence. In this letter, Dr. Arey described the child’s reaction and response when asked if he would like spending time with his mother in an unsupervised setting. Dr. Arey’s opinion as to the advisability of increased visitation or visitation in an unsupervised setting was based upon his therapeutic role with the child; Dr. Arey sees the child on a regular basis and saw the child the day before his testimony. In addition, Dr. Arey was qualified by the same trial court in these same proceedings during the 2002 custody hearing. The correct standard of review for the trial court judgment was the abuse of discretion standard. AEB v. JBE, 99-2668, p. 7, (La.11/30/99), 752 So.2d 756, 761 (the determination of the trial judge in child custody matters is entitled to great weight and his- discretion |4will not be disturbed on review in the absence of a clear showing of abuse). We do not find the trial court abused her discretion in accepting Dr. Arey’s expert testimony.

Accordingly, that portion of the court of appeal judgment remanding the matter to the trial court and ordering the trial court to appoint a child custody expert is reversed. The judgment of the trial court granting defendant’s motion for involuntary dismissal of plaintiffs motion for expanded visitation is reinstated.

REVERSED IN PART.


text:
    Jason William HAMILTON and Catherine Hamilton v. Carey E. WINDER, M.D. and The Orthopedic Clinic, Inc. (A Professional Medical Corporation).
    No. 2006-C-0994.
    Supreme Court of Louisiana.
    June 16, 2006.
   PER CURIAM.

| finding that the court of appeal erred in vacating the district court’s judgment and remanding this matter for new trial, we grant this writ to reinstate the district court’s judgment.

In the present case, the court of appeal found the district court summarily erred in removing Mr. Veal as a juror without first determining his unavailability, reasoning no attempt was made to contact Mr. Veal to determine his unavailability to serve as a juror, nor was there any information that Mr. Veal was unavailable to serve. The court of appeal’s opinion, however, failed to appreciate the district court’s discretionary power under La.Code Civ. Proc. art. 1631(A) to control the proceedings. La. Code Civ. Proc. art. 1631(A) provides:

The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.

As to the disqualification of Mr. Veal, the district court reasoned:

Good morning. It’s now ten minutes after 9:00. We were supposed to start at 9 o’clock. Mr. Veal is Juror Number 305, sitting in position No. 6. He is not present. Mr. Veal has been late for every break we have taken. He has not been on time once coming back. I admonished him yesterday in private. I told him he needed to be on time. We needed to be able to start, because he was keeping everybody waiting. All the rest of the jurors are here. Everything is ready to go. l2I’m going to bump Mr. Veal, and use the alternate, Ms. Johnson, as our twelfth juror. If we lose somebody after this, we’ll have to see whether there’s agreement on 11 or if— a mistrial.
Clarification concerning [Ps’ counsel’s] last concern that the jury might get the idea that if they just don’t show up, they’ll be shipped off the jury and go home. Mr. Veals [sic] has been here all day. He’s still here. He didn’t arrive until after 9:30 this morning. We didn’t put it on the record. What we had discussed about before, but I do want it on the record. That I came in at 9 o’clock and informed counsel that we were still waiting on Mr. Veal. I came in at five after 9:00 and informed counsel that Mr. Veal was not here, and if he didn’t show up in five minutes, we were going to bump him and go with the alternate. That was because this ease appears to be — is going to go longer than the four days that it was scheduled, and I’m trying to move it along within the time I was told by counsel that it could be done. Mr. Veals [sic] had shown a tendency not to be on time, and known to have been late after every break we had taken. He had not called our office to say he was running lately [sic] or why he was running late, as jury management instructs the jurors to do, and that was the reason he was excused ....

It is apparent from his reasons the court anticipated the trial would take longer than the four days for which it was scheduled, and after having admonished Mr. Veal the previous day for his tardiness after every break, the court decided in its discretion to remove the juror to help “move [the trial] along within the time” scheduled. The trial judge made a record of his decision to remove the juror and recited on the record his reasons for the juror’s disqualification. We find the district court’s action falls clearly within its discretion to control the proceedings at trial.

Moreover, as to the plaintiffs argument that civil litigants are entitled to have their dispute tried by the jury they selected, we have no indication the alternate was not a juror selected by the parties.

Accordingly, the court of appeal decision vacating the district court’s judgment and remanding this matter for new trial is reversed. The judgment of the district court excusing Mr. Veal as juror is reinstated, and this matter is remanded to the court of |sappeal for consideration of the remaining assignments of error.


text:
    H.H. HANKS, et al. v. ENTERGY CORPORATION, et al.
    No. 2006-C-0477.
    Supreme Court of Louisiana.
    June 16, 2006.
   And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.


text:
    STATE of Louisiana v. Keith MARSHALL a/k/a Gregory Marshall.
    No. 2004-K-3139.
    Supreme Court of Louisiana.
    June 16, 2006.
   And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.


text:
    Tammy Kay DUNCAN v. U.S.A.A. INSURANCE COMPANY, James S. Cameron and Maloni R. Sartin-White, Western Heritage Insurance Company.
    No. 2006-CC-0363.
    Supreme Court of Louisiana.
    June 16, 2006.
   And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.


text:
    Russell Paulette Lebouef ISTRE, et al. v. Daniel MECHE, et al.
    No. 2005-C-2508.
    Supreme Court of Louisiana.
    June 16, 2006.
    CALOGERO, C.J., and KNOLL, J., would grant the writ application.
    JOHNSON, J., would grant the writ application and assigns reasons.
   JOHNSON, J., would grant Plaintiffs’ writ application.

Lin my mind, the appellate court erred in affirming the trial court’s decision to grant Defendants’ motion for summary judgment. For the reasons that follow, I would reverse the grant of summary judgment and remand the case for trial on the merits.

On August 29, 1998, Daniel Meche (“Meche”) was driving his pick-up truck at a high rate of speed along “Standard Mill Road,” which is located outside of the city limits of Rayne, Louisiana. Acadia Parish Sheriffs Deputy Kevin Trahan spotted Meche’s speeding vehicle (which was traveling sixty-three (63) miles per hour in a forty-five (45) mile per hour zone), and the deputy attempted to stop the pick-up truck. When Meche failed to stop his vehicle, Deputy Trahan began to pursue the vehicle. This pursuit continued into the city limits of Rayne, at which point Officer Buchanan of the Rayne Police Department became involved and assisted Deputy Trahan in the pursuit of Meche’s vehicle. Deputy Trahan was in direct pursuit of the Meche vehicle, while Officer Buchanan followed behind Deputy Tra-han’s vehicle. The three vehicles sped through Rayne’s streets reaching speeds of eighty (80) to one hundred (100) miles per hour, as the officers’ attempts to stop the vehicle proved futile. This “police chase” ended when Meche ran a red light and struck the driver’s | aside of a vehicle that was proceeding through the intersection. The vehicle that Meche struck was driven by Mrs. Russell Paulette Istre, and Mrs. Istre suffered serious and permanent injuries as a result of this accident.

Mrs. Istre and her husband Leroy Istre (“Plaintiffs”) filed this lawsuit against Meche and his liability insurer State Farm Mutual Automobile Insurance Company. Plaintiffs later amended their petition to include Deputy Kevin Trahan, Acadia Parish Sheriff Kenneth Goss, Officer Russell Buchanan, and the City of Rayne (“City”) as defendants. The City and Officer Buchanan (“Defendants”) filed a motion for summary judgment, suggesting that they were immune from liability pursuant to the provisions of LA.REV.STAT. § 912798.1(B). Further, Officer Buchanan asserted that he was not negligent in his actions (ie., pursuing Meche’s vehicle). A hearing was conducted regarding Defendants’ motion for summary judgment, and the trial court concluded that genuine issues of material fact remained. Thus, Defendants’ motion (originally filed on December 20, 2000) was denied.

Approximately three (3) years after their first motion for summary judgment was denied, Officer Buchanan and the City filed a second motion for summary judgment. Their second motion relied upon the Fifth Circuit Court of Appeal’s then-Irecenta decision in Jones v. Congemi, 01-1345 (La.App. 5 Cir. 5/13/03); 848 So.2d 41. The trial court granted Defendants’ motion for summary judgment and dismissed Defendants from the instant action, with prejudice. The trial court concluded that Officer Buchanan’s actions were not unreasonable, and further, the trial court found that there were no genuine issues of material fact.

In reaching its 'decision to grant Defendants’ second motion for summary judgment, the trial court relied upon the Jones decision. In that case, three Kenner Police Officers were involved in the “vehicular pursuit” of Terrence King (“King”). This police pursuit ended when King ran a red light and struck a vehicle proceeding through the intersection killing several occupants of the vehicle. A lawsuit was brought against the officers who were pursuing King in their respective police units. The Fifth Circuit determined that the officers’ actions were reasonable given the facts of the case. Thus, the officers’ motion for summary judgment was granted, and they were dismissed from the lawsuit. As the Fifth Circuit stated:

Officer Archuleta stated that the majority of the time that he followed |4Mr. King, they were both traveling within the speed limit. It was not until shortly before the accident that Mr. King picked up speed. The department policy permits following a vehicle at a safe speed. Furthermore, although Mr. King did not pull over in the required “stop zone,” the department manual allows the officer to begin “trailing” the vehicle in such a situation. The parties disagree as to whether the officers “trailed” Mr. King or “chased” him at a high rate of speed. However, we find that this issue is not a genuine issue of material fact which precludes summary judgment.
Even if the officers had deviated from the policies of the Kenner Police Department, we find that the undisputed material facts establish that the officers’ actions were reasonable. Policies and regulations should indeed be followed and corrective action may be taken by the police department when an officer fails to comply with the department’s regulations. However, when determining the scope of duty owed by law enforcement officers and whether such duty was breached, the legal question is whether or not a police officer’s actions were reasonable, not whether he complied with departmental policies.
Considering the circumstances of the case before us, we find that the undisputed facts establish that the officers’ ■ action in following Mr. King were reasonable.

The appellate court conducted a duty/ risk analysis regarding the reasonableness of Officer Buchanan’s actions and concluded:

The trial court has dismissed Officer Buchanan from the case, and we affirm that decision; however, based upon unresolved evidentiary issues, [we] are not capable of dismissing the City of Rayne. Plaintiffs have introduced affidavits from two eyewitness [sic] into the record as evidence tending to suggest that there may have been a second Rayne police car involved in the chase, but they have not alleged in their petition, or any other pleadings, that the City of Rayne may be held liable as the employer of any other police officers that may have been involved in the pursuit.

Thus, the appellate court remanded this case “to the trial court to allow Plaintiffs to make such case as they are able with reference to the liability of the City of Rayne for the actions of the unnamed police officer, if any, referred to in the affidavits entered|,finto evidence.”

Judge Peters dissented from the appellate panel’s decision, as Judge Peters concluded:

I agree that the court in Jones correctly stated the legal question to be considered. However, “the duty is one of reasonableness under the totality of the circumstances.” Courville v. City of Lake Charles, 98-73, p. 14 (La.App. 3 Cir. 10/28/98), 720 So.2d 789, 797. Whether a given action is reasonable under the circumstances is a factual determination which should not be made in the context of a summary judgment proceeding. In my opinion, that is exactly what the trial court and the majority have done in this case — made factual determinations in the context of a summary judgment proceeding.
I do not find that the Jones decision stands for the proposition that a violation of departmental policy should not be considered in determining the reasonableness of the police action at issue. Unlike the cross-country, high-speed chase in the matter now before us, the accident at issue in Jones occurred almost immediately after the pursuit began in earnest. I believe the trial court was correct in its first ruling on the motion for summary judgment....

The procedural guidelines for summary judgment are set forth in La. Code Civ. Proc. art. 966 and LA. CODE CIV. PROC. art. 967. As we noted in Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991):

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. The party who defended against the motion for summary judgment must have his properly filed allegations taken as true and must receive the benefit of the doubt when his assertions conflict with those of the mov-ant.

Further, in Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94); 639 So.2d 730, we explained:

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[F]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), writs denied, 596 So.2d 211 (La.1992). Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Sassone v. Elder, 626 So.2d 345, 352 (La.1993); Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So.2d 1152, 1153-54 (La.1983) (collecting cases); McCoy v. Physicians & Surgeons Hospital, Inc., 452 So.2d 308, 310 (La.App. 2d Cir.), writ denied, 457 So.2d 1194 (La.1984) (noting that “[sjummary judgment may not be used as a substitute for trial”).

It appears from the instant record that the questions surrounding Officer Buchanan’s actions, and the propriety of said actions, are the type of questions that 17present a genuine issue of material fact. The reasonableness of Officer Buchanan’s actions must be evaluated in the context of the “totality of the circumstances,” and as such, summary judgment is inappropriate. As Judge Peters aptly noted, the facts of the Jones case are much different from the facts of the instant matter. The case at hand involves a high speed chase with an individual disobeying traffic signals and driving erratically. Furthermore, this chase continued from a rural area into the city limits of Rayne. The “reasonableness” of Officer Buchanan’s actions cannot be compared to the reasonableness of the officers’ actions in the Jones case. As such, I believe the appellate court erred in its reliance upon the Jones case in affirming summary judgment.

For the foregoing reasons, I am of the opinion that summary judgment was inappropriate in this case. Accordingly, I would reverse the rulings of the lower courts and remand this case to the trial court for further proceedings.

      . La. Rev. Stat. § 9:2798.1(B) provides:
      Liability shall _ not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

      . Judge Peters, in his dissenting opinion, noted:
      The trial court initially rejected the defendants’ motion for summary judgment based primarily on the issue of whether Officer Buchanan violated departmental policy in participating in the high-speed chase which resulted in the plaintiffs’ injuries.

        Istre v. Meche, 05-303 (La.App. 3 Cir. 11/2/05); 916 So.2d 307, 313.

      .In his dissent, Judge Peters observed:
      The trial court then reversed its prior ruling after considering the holding in Jones v. Congemi, 01-1345, 02-148, 02-149, pp. 11-12 (La.App. 5 Cir. 5/13/03), 848 So.2d 41, 47, writ denied, 03-1647 (La. 10/10/03), 855 So.2d 354, to the effect that “when determining the scope of duty owed by law enforcement officers and whether such duty was breached, the legal question is whether or not a police officer's actions were reasonable, not whether he complied with departmental policies.”

        Istre v. Meche, 05-303 (La.App. 3 Cir. 11/2/05); 916 So.2d 307, 313.

      .The facts/circumstances of the Jones "police chase” are much different from the facts of the instant matter. In Jones, the police pursuit was conducted at speeds in accordance with the posted speed limits, and further, Terrence King was obeying the traffic signals. As the Fifth Circuit noted:
      The officers had no way of knowing that Mr. King would suddenly change from low speed to high speed, and it would have been unreasonable for the officers to stop following him at that point. Jones v. Congemi, 01-1345 (La.App. 5 Cir. 5/13/03); 848 So.2d 41, 45.

      . Jones v. Congemi, 01-1345 (La.App. 5 Cir. 5/13/03); 848 So.2d 41, 47 (emphasis added).

      . Istre v. Meche, 05-303 (La.App. 3 Cir. 11/2/05); 916 So.2d 307, 312 (alteration in the original).

      . Id. at 313.

      . Istre v. Meche, 05-303 (La.App. 3 Cir. 11/2/05); 916 So.2d 307, 313.

      . La. Code Civ. Proc. art. 966(C) provides:
      (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
      (2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

      . La. Code Civ. Proc. art. 967(B) provides:
      When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

      . Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991) (citations omitted).

      . Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94); 639 So.2d 730, 751.

        . Istre v. Meche, 05-303 (La.App. 3 Cir. 11/2/05); 916 So.2d 307, 313.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Marie LEE v. Huong LU and Allstate Insurance Company.
    No. 05-CA-899.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2006.

      Julie A. Gardner, Myles Steib, Metairie, Louisiana, for Plaintiff/Appellee.
    Christopher E. Lozes, Mandeville, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| gDefendants, Huong Lu and Alstate Insurance Company, appeal a judgment awarding plaintiff, Marie Lee, $15,000.00 in general damages in this motor vehicle accident case. For the following reasons, we affirm.

Plaintiff filed a Petition for Damages against defendants alleging that on May 2, 2002 Lu negligently made an illegal left turn into plaintiffs lane of traffic and collided into plaintiffs vehicle, resulting in severe injury to plaintiff. Plaintiff sought damages for past, present, and future physical and emotional pain and suffering, medical bills, and lost wages.

After a trial on the merits ón June 30, 2005, the court awarded plaintiff $15,000.00, “in accordance with the oral reasons presented in Court” which are, as follows:

After reviewing the records the Court finds in favor of the Plaintiff and against Mr. Lu. The Court finds that the Plaintiff ^preponderated in her case; that she was free of negligence and Mr. Lu was negligent insofar as the accident is concerned.
The Court however is not impressed that the surgery that occurred ... [w]as causally related to the accident which occurred in May of '02. The Court therefore assesses general damages for pain and suffering only, in the sum of $15,000. The Court is not impressed that the Plaintiff was able to prove any special loss, special damages; more specifically, in terms of loss of income or payment of medical bills to any degree of certainty, nor any other item of special damage. Therefore there is no reward for that.
Defendants appeal.

Plaintiff testified at trial that on May 2, 2002, while driving eastbound on Gretna Boulevard, she was involved in an automobile accident. As she approached the intersection of Gretna Boulevard and Huey P. Long, Lu pulled out in front of her. She “threw on” her brakes and turned her wheel, trying to avoid a collision; however, she was unsuccessful and her vehicle impacted the passenger side, “towards the back,” of Lu’s vehicle.

Plaintiff stated that she felt a sharp pain in her neck when the accident occurred; but by the time the police arrived, she was “fine” and “didn’t have any more pain,” so she decided not to go to the emergency room. However, the next morning she woke up with “bad neck pain and throbbing chest pain and numbness in [her] arm,” prompting her to go to West Jefferson Hospital to seek medical. attention.

Plaintiff stated she had been treated for neck pain at West Jefferson Emergency Room prior to the accident. The record includes the Emergency Department Report from this March 15, 2002 visit. Plaintiffs chief complaint was “Left neck pain” and the diagnosis was “Neck Pain — Mus-culoskeletal.” In the report the emergency room physician states, “I do believe the patient’s pain is musculoskeletal in nature. It is possible that this is an early manifestation of a degenerative cervical disc.” Further, plaintiff testified that prior to and at the time |4of the accident she was being treated by Dr. James M. Todd, III, an orthopedic surgeon, for stiffness in her neck, chest pain, and numbness in her left arm . At her initial visit with Dr. Todd, pre-accident (March 27, 2002), plaintiff indicated on a form that her pain level was nine on a one to ten scale, with ten being the worst pain. However, at trial plaintiff testified that her pain level prior to the accident was a five or six, and approximately a ten after the accident. Plaintiff explained on cross examination that she was referring to her chest pain, not her neck pain, on the March 27, 2002 form.

Plaintiff initially testified that Dr. Todd’s course of treatment prior to the accident included physical therapy, along with medication, and that this treatment helped her “somewhat” and relieved the pain “a little”; but post-accident physical therapy no longer provided the same level of relief. However, plaintiff later testified that she did not receive physical therapy prior to the accident.

Plaintiff described the pain after the accident as a “hard throbbing pain” in the neck, “hard” muscle spasms in the chest, numbness in her left arm, and the beginning of numbness in her right arm. The accident worsened the numbness in her left arm and turned her “stiff’ neck into “neck pain.” She described her lifestyle post-accident as “constant pain every day, being medicated every day, not being able to do much.”

Plaintiff further testified that she was sleeping “fine” and was able to perform “normal life activities” and all of her duties at work, prior to the accident; her only limitation was that she was prohibited from doing “anything heavy” while performing household chores. After the accident, she could no longer perform her | sdaily routine — she could not perform her household chores, drive the van at work, climb the stairs, go for walks, pick up her grandchild, or comb her hair.

Plaintiff further testified that she was in pain from the date of the accident until surgery relieved the pain. Approximately three weeks after surgery, she no longer needed medication; five weeks after surgery she was able to go back to work and resume normal activities.

The deposition of Dr. Todd was introduced into evidence. Dr. Todd testified that he first saw plaintiff prior to the accident, on March 27, 2002, when she visited his office complaining of neck pain and left upper extremity pain radiating with numbness for the past month. Upon examination, he found that plaintiff had limitation of motion and spasm in the neck associated with crepitas. Her neurologic examination was within normal limits and he saw no indication of atrophy, muscle wasting, or skin changes. He suspected that she had a degenerative disk at a particular nerve root from a compression at the nerve root level and an x-ray later revealed a narrowing at plaintiffs C5-C6 and C6-C7 levels. He recommended physical therapy and an MRI, to better evaluate her degenerative disk disease.

Dr. Todd testified he reviewed plaintiffs April 5, 2002 MRI and determined that plaintiff had a large herniated disk at the C6-C7 level that was impinging on the left nerve root, as well as the thecal sac. He stated that he did not recommend surgery at that time because defendant’s need for surgery depended on her response to more conservative treatment, i.e., physical therapy, medications, and epidural steroid injections; if these conservative treatments were unsuccessful, then surgery would be warranted.

Dr. Todd’s next examination of plaintiff on June 12, 2002, post-accident, showed limitation of motion and mild spasm at the cervical level, consistent with |fiher preexisting herniated disk. She had tenderness over the C6 and C7 level, but her neurological exam was unchanged from the pre-accident neurological exam. Plaintiff had no new positive findings.

Plaintiffs next appointment with Dr. Todd was on August 7, 2002. Dr. Todd testified she was complaining of persistent pain in the generalized area of the cervical spine, across the anterior chest, and down the thoracic lumbar spine. Also, she had developed a problem with swallowing. Dr. Todd stated her physical examination was not consistent with problems in the neck area; swallowing difficulty could not be attributed to cervical degenerative disk disease. In Dr. Todd’s opinion, plaintiffs August 7, 2002 complaints were not attributable to the accident.

Plaintiffs last appointment with Dr. Todd was on September 4, 2002. She complained of a “shocking” sensation in her left index and long finger, numbness, tingling, and weakness in the left upper extremity; her right arm was stiff and had been tingling for the last two weeks. She also had low back pain, which worsened during menstruation. Plaintiff had full range of motion of the neck, with some mild, right-sided spasm. He found no neurological deficits in the upper extremities and the results from an examination of her pelvis, low back, and lower extremities were normal, except for some spasm in the lumbar paraspinal muscles.

Dr. Todd testified that he could not attribute the onset of plaintiffs low back pain to the accident. Nor could he attribute the tingling in plaintiffs right arm to the accident, though, in his opinion, it could be attributable to her pre-accident herniated disk at the C6-C7 level.

Dr. Todd further testified that he could not determine if the accident affected plaintiffs condition. . He explained that “[a]t this point, there were a lot of inconsistencies. She did not really listen to many of the recommendations we 17offered such as physical therapy and medication.” In his opinion, plaintiffs neck problem was secondary to degenerative disk disease and a herniated disk at the C6-C-7 level “because she was having essentially the same problem before the accident.” He stated that her complaints and findings after the accident were “nearly identical” to those pre-accident and the accident did not change the pattern of her symptoms.

Dr. Todd stated that plaintiffs need for an anterior cervical diskectomy at C6-C7 was “[ajbsolutely” caused by the herniated disk identified on her pre-accident MRI in April 2002 and the symptoms and findings that she first reported to him in March 2002. Further, he had “no way” of attributing plaintiffs need for surgery to the accident. In his opinion, plaintiff would have eventually needed surgery without the accident.

The deposition of Dr. John C. Steck, a neurosurgeon, was introduced into evidence. Dr. Steck testified that he performed an anterior cervical diskectomy with fusion at C6-C7 on plaintiff on March 19, 2003. He stated that the operation was not required, but was offered as a means to relieve pain; most cervical disk problems, cervical spondylosis, are managed non-operatively. Further, it was Dr. Steck’s opinion, based on only a brief review of Dr. Todd’s medical notes for plaintiff pre- and post-accident, that the accident probably had no effect on plaintiffs need for surgery.

On appeal defendants allege that the trial court erred in awarding $15,000.00 general damages because plaintiff failed to prove her injuries were causally connected to the accident.

Plaintiff must prove by a preponderance of the evidence the existence of a causal relationship between the accident and the injuries she claims; the trial judge’s determination whether the plaintiff has carried this burden is a finding of 1 sfact that will not be disturbed on appeal unless it is manifestly erroneous. Prestenback v. Schwegmann Giant Supermarkets, Inc., 96-793 (La.App. 5 Cir. 1/28/97), 688 So.2d 149, writ denied, 97-0977 (La.5/30/97), 694 So.2d 249. The test for determining a causal relationship between an accident and subsequent injuries is whether the plaintiff has proved through medical and lay testimony that it is more probable than not that her injuries were caused by the accident. Id. If the appellate court finds that the trial judge’s findings of fact are reasonable on review of the entire record, it may not reverse the judgment, even if it would have weighed the evidence differently if it were the trier of fact. Westley v. Allstate Ins. Co., 05-100 (La.App. 5 Cir. 5/31/05), 905 So.2d 1127.

The trial judge assessed general damages for pain and suffering only. The record includes plaintiffs testimony that the accident worsened the numbness in her right arm and significantly increased her level of pain. She testified that her pain level prior to the accident was a five or six, and approximately a ten after the accident. Plaintiff described her post-accident lifestyle as one of “constant pain every day, being medicated every day, not being able to do much.” She could no longer perform her household chores, drive the van at work, climb the stairs, go for walks, pick up her grandchild, or comb her hair. Further, neither Dr. Todd nor Dr. Steck ruled out the possibility that plaintiffs condition was affected by the accident. Therefore, we find that the trial court did not err in awarding plaintiff general damages for pain and suffering.

Defendant also asserts the trial court’s award of $15,000.00 in general damages “shocks the conscience” because the accident merely aggravated plaintiffs preexisting condition “a bit” and did not change her symptoms or complaints.

|9The trial judge has much discretion in fixing general damage awards, which are those damages which may not be fixed with pecuniary exactitude. LeMasters v. Boyd Gaming Corp., 04-1054 (La.App. 5 Cir. 2/15/05), 898 So.2d 497, writ denied, 05-0751 (La.5/6/05), 901 So.2d 1103. This Court reviews general damage awards under an abuse of discretion standard. Westley, supra. In reviewing a general damage award, the appellate court must consider the particular facts of the plaintiffs injuries, and the effects of those injuries on the particular plaintiff. Id. An appellate court may not overturn an award for general damages unless it is so out of proportion to the injury that it shocks the conscience. Id. Consequently, this Court should rarely disturb an award of general damages. Id. Only after the appellate court has determined that the trier of fact abused its discretion is a resort to prior awards appropriate; the prior awards may be referred to only for the purpose of determining the highest or lowest point, which is reasonably within that discretion. LeMasters, supra.

After reviewing the trial court's award of $15,000.00 in general damages to plaintiff, we find that the trial court did not abuse its discretion.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . Plaintiff testified that she was also' being treated by her primary care physician, prior to the accident, for muscle spasms in her chest.

      . Defendants introduced into evidence a Bone and Joint Clinic Patient Data Form completed by plaintiff during this initial visit.