text:
    Joseph Arthur SIMS and Julia Brumfield Sims v. Barry WARD and the Louisiana Department of Public Safety and Corrections Division of Louisiana State Police.
    No. 2005-CA-0278.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied July 17, 2006.

      Mary Olive Pierson, Baton Rouge, Counsel for Plaintiffs/Appellants.
    Timothy D. Scandurro, Dewey M. Scan-durro, Scandurro & Layrisson, L.L.C., New Orleans, Counsel for Plaintiffs/Appellants.
    Charles C. Foti, Jr., Attorney General, Patrick J. Berrigan, Special Assistant Attorney General, Slidell, Counsel for Defendants/Appellees.
    Panel composed of Ad Hoc Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, Jr., Chief Judge, Ad Hoc.

| aIn this appeal, plaintiffs, Joseph and Julia Sims, challenge the jury verdict which found no liability on the part of defendants, Barry Ward and the Louisiana State Police. Plaintiffs, asserting there is no factual basis for the verdict, request that this court reverse the jury verdict and thereafter make an appropriate award of damages. For the reasons which follow, we affirm the verdict of the jury.

In the early morning hours of June 3, 2000, Joseph Arthur Sims, a fifty-eight year old attorney, was driving home from his high school reunion when he was stopped by Barry Ward, a trooper with the Louisiana State Police. Sims and Ward have very different versions of what occurred during the stop. Sims contends that he was cooperative during the stop, and that Ward became angry when he refused to take a part of the field sobriety test. He asserts that Ward handcuffed and then beat him. On the contrary, Ward claims that Sims was uncooperative and resisted arrest. As a result, Ward had to use some defensive techniques that he learned in the police academy | oto get Sims under control. As a result of this stop, Sims and his wife, Julia Sims, filed a petition for damages against Barry Ward and the Louisiana Department of Public Safety and Corrections, Division of State Police, alleging that Ward used excessive force in effecting the arrest of Sims. In the petition, Sims asserted claims and sought damages under Louisiana tort law as well as 42 U.S.C. § 1983. Mrs. Sims sought damages for mental anguish and grief and loss of consortium.

This matter proceeded to trial on March 29, 2004, in the 21st Judicial District Court. After lengthy testimony and the presentation of evidence by both plaintiffs and defendants, the jury reached a verdict in favor of defendants. Specifically, the jury found that Ward did not use excessive force during the arrest of Sims; that Ward did not commit a battery on Sims; that Ward and/or the Division of State Police did not defame Sims; that Ward and/or the Division of State Police did not cause the malicious prosecution of Sims; and that the Division of State Police was not negligent in hiring Ward or retaining Ward as a trooper. The jury also rejected the claims of Mrs. Sims, finding that she did not sustain damages for loss of consortium or mental anguish and emotional distress. On April 26, 2004, the court entered a judgment in accordance with the jury verdict. Thereafter, plaintiffs filed a motion for judgment notwithstanding the verdict, and in the alternative, a motion for new trial. After considering arguments of counsel, the trial judge denied the motion. This timely appeal followed.

SPECIFICATION OF ERROR NUMBER ONE

In their first specified error, plaintiffs challenge the verdict of the jury. Plaintiffs acknowledge the manifest error standard of review and recognize that they have an “uphill battle” to reverse the jury’s verdict. However, plaintiffs submit that a reversal is warranted in this case because the verdict |4is not supported by any view of the evidence, much less any reasonable view. They contend that the testimony and the physical evidence support only one verdict, specifically that Sims was brutally beaten about the head and face after he was lying on the ground, handcuffed. Plaintiffs allege that rather than being persuaded by the evidence, the jury was influenced by the inflammatory and prejudicial remarks of defense counsel.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). In Bonin v. Ferrellgas, Inc., 2003-3024 (La.7/2/04), 877 So.2d 89, 94-95, the Louisiana Supreme Court stated:

Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221. In sum:
[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. (Emphasis added.) Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973); Ambrose, supra at 224 n. 1 (Lemmon, J., concurring).
However, this Court clarified in Am-brose that our purpose in Stobart was not “to mandate that the trial court’s factual determinations cannot ever, or hardly ever, be upset.” Perkins v. Entergy Corp., 2000-1372 (La.3/23/01), 782 So.2d 606, supra at 613 (citing Ambrose, 639 So.2d at 221). Recognizing that great deference should be accorded to the fact finder, the court of appeal and this Court have a constitutional duty to review facts. Id. To perform its constitutional duty properly, an appellate court must | sdetermine whether the trial court’s conclusions were clearly wrong based on the evidence or clearly without evidentiary support. Id. That being said, we reiterate that when two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.

In order to address plaintiffs’ first specification of error, it is necessary to review some of the evidence presented at trial. In the present case, Joseph Sims was the first witness to testify. After giving some personal background information, Sims told about his activities before the police stop. On June 2, 2000, Sims went to his high school reunion with his wife, although they drove in two separate cars. He admitted having some drinks during the course of the evening. When the reunion was over, Sims made a few stops and then proceeded home. As he was driving down Highway 22, he saw police lights in his rearview mirror. Right before he saw the lights, Sims had jerked his steering wheel to the left, claiming he had moved too close to the fog line when he reached down to put away his phone. Realizing the lights were for him, Sims pulled into the parking lot of Delatte’s Grocery because the area was well lit. Sims parked his car on the pavement portion of the parking lot and turned it off. Sims took off his seatbelt, opened the car door, and as he exited, got caught in his seatbelt. At this point, he heard the state trooper tell him to go stand by the police unit. Doing as he was told, Sims walked over to Ward’s car, which was situated on the gravel portion of the parking lot. Ward approached Sims and told him in a loud voice that he smelled alcohol on him. Ward asked to see Sims’ driver’s license and then informed Sims that he wanted to perform a field sobriety test. Sims responded that he would not take any tests that were subjective in nature, including the horizontal gaze nystagmus test which the officer wanted to perform. According to Sims, Ward became very irritated when he refused to take this test. Ward began yelling, telling Sims that he was refusing to | ^cooperate. Sims looked down to put his wallet in his pocket, and as he looked back up, Ward attempted to do the horizontal gaze nystagmus test. To prevent Ward from performing the test, Sims ducked his head, and Ward began yelling that he was refusing to cooperate.

Feeling that the officer had gone into a rage and had become unduly confrontational, Sims feared for his life and thought he should remove himself from the situation. Sims informed Ward that he was going to sit in his car to wait for a supervisor and to do what he needed to do. When Sims took a step towards his car, Ward grabbed his left bicep. Sims stopped. Ward grabbed Sims’ left wrist and cuffed his left arm, yelling that Sims was resisting arrest. Ward then grabbed Sims’ right arm and pulled it towards the back. However, Ward lost his grip of the arm and yelled at Sims to stop fighting. At that point in time, Ward went to grab Sims, and Sims went down to the ground. Sims testified that he landed on his right knee, pitched forward onto his right elbow, and then rolled onto his left shoulder. Positioned flat on the broken concrete, Sims put his right hand behind his back, and Ward cuffed it. Sims stated that when he initially went down, he did not injure his neck, face, or head, and that his face did not hit the concrete.

After Sims was on the ground and handcuffed, Ward reached down, grabbed Sims by his right arm, jerked him up, and let him drop. However, Sims’ head still did not hit the concrete because the officer had not lifted him up too high. Ward then got on Sims’ back, grabbed him by the hair, pulled his head back, and jammed his head into the concrete and broken rocks. Sims hit his right forehead area and busted his lip. Ward pulled his head back a second time, and as the officer went to smash it down, Sims quickly turned his head to the right to prevent his teeth from being knocked out. On 17this contact, Sims’ right temple area hit the ground. Still holding Sims’ hair, Ward rubbed his face into the broken gravel. Sims turned his head to the left in order to get the injured side out of the gravel. Ward then pounded him with “sledge hammer blows” on the side of his head. At this point, Sims heard a car pull up in the gravel. Ward got off Sims’ back, and as he was doing so, Ward stomped his foot on the side of Sims’ head and turned it, causing his head to rotate.

Ward also testified at trial but presented a totally different version of events. On the night in question, Ward was on patrol when he observed Sims’ vehicle cross the center line three times and also cross the white fog line on the right hand side of the road. Believing that he may have a possible DWI, Ward turned on his blue lights to initiate a stop. The vehicle pulled into the parking lot of Delatte’s Grocery, and Ward positioned his unit to the rear of the suspect vehicle and directed his headlights towards the driver’s side door. As Sims exited his vehicle, Ward observed that his left arm was entangled in the seatbelt. Sims then stumbled out of the vehicle and nearly fell to the ground; however, he caught himself on the open door.

Ward, carrying his flashlight, approached Sims, identified himself, and asked for Sims’ driver’s license. Sims gave Ward Ms license and made some comment that he thought the trooper was his wife. As Sims spoke, Ward smelled a very strong odor of alcohol. After looking at Sims’ license with his flashlight, Ward told Sims that he wanted to perform a field sobriety test. When Ward said those words, Sims reached to grab his steering wheel to try to get back into his car. Ward positioned himself to block Sims from getting back into the vehicle, and at some point, Sims grabbed the flashlight and would not give it back. Ward advised Sims to let go of the flashlight, but Sims refused. Ward then performed a weapon retention maneuver which |Rbroke Sims’ grip on the flashlight. Ward told Sims to step in front of his unit. According to Ward, Sims composed himself, walked to the front of the unit, and stood with his arms crossed and his head down.

Ward approached Sims and advised him that he needed to do a series of tests, the first one being the horizontal gaze nystag-mus test. Sims refused to take this test, commenting that he was an attorney and felt the test was subjective. As was his usual procedure, Ward nonetheless offered the test and held up his pen and flashlight to see if Sims would do the test. Sims looked straight down, and the officer advised him that he would move on to the walk and turn test. Sims refused this test, once again saying that he was an attorney and the test was subjective. As Ward was on the radio, Sims touched the trooper just above his utility belt, told Ward not to put all those lies in there, and to get him a supervisor. Ward then advised Sims that if he would not do any of the tests, then he would be arrested. In response, Sims told Ward to do what he needed to do.

In compliance with Ward’s instruction, Sims turned around and clasped his hands in the lower portion of his back. As Ward prepared to cuff him, Sims proceeded to walk back to his vehicle. Ward reached up and grabbed Sims by his left arm. Sims resisted and attempted to pull away from the officer; however, Ward managed to grab Sims’ right arm, telling him that he was under arrest. At this point, Sims was still trying to pull back towards his vehicle as the officer was pulling back towards his unit. When Ward pulled Sims back, he was trying to execute an arm bar takedown, but was not able to get Sims in the proper position for the maneuver. Ward decided to do a rollover technique, and as he was executing the technique, Sims caught himself on the hood of the police unit. When Sims put his hands on the hood 19of the car, Ward had him in the position that he needed to do the arm bar takedown.

Ward grabbed Sims by the left wrist, and as he pulled Sims off the car, Sims’ right arm went into the air, and he landed on the ground on his face. The force of the impact combined with the sweat on Sims’ arms made Ward lose his grip. However, Ward was able to hold him on the ground and get into the handcuffing position, which is left knee between the shoulder blade and neck and right knee in proximity to the rib cage. At this point, Sims, still resisting, clasped his hands together underneath his chest to prevent Ward from being able to handcuff him. After unsuccessful attempts to pull Sims’ hands from underneath his body, Ward executed three brachial plexus strikes in the neck area. Ward was then able to grab Sims’ left hand and cuff it. Sims continued to resist and put his left hand back underneath him. Ward grabbed Sims’ right bicep and pulled as hard as he could to get that hand out. At some point in the struggle, he executed a finger maneuver and was finally able to handcuff Sims.

Several officers thereafter arrived on the scene. Sergeant David Bryant of the Ponchatoula Police Department was the first officer to arrive. Upon his arrival, Bryant observed Ward stooped beside a man who was lying on his stomach, handcuffed behind his back. Ward advised Bryant that Sims had put up á fight and asked Bryant to stand by Sims so he could clean himself up. Regarding Ward’s condition, Bryant testified that Ward had some blood on his hands and arms and that he was breathing heavy. However, Bryant did not notice anything on Ward’s clothing that indicated a Imstruggle, such as tears or missing buttons. Bryant also testified that he saw some blood on Sims and the handcuffs.

Chief of Police of Ponchatoula, Tim Gideon, also arrived on the scene. Upon his arrival, he first spoke to Trooper Ward to ascertain if he was alright and if everything was under control. He then went over to see what the situation was with the violator and Officer Bryant. Chief Gideon looked at the suspect’s driver’s license and realized that it was Sims, whom he knew. In the meantime, Trooper Scott Sandage of the Louisiana State Police, who also knew Sims, arrived on the scene. Sandage and Gideon attempted to sit Sims up. They then cleaned out his eyes and un-cuffed him. Regarding Sims’ condition, Gideon and Sandage testified that he was very scared, that he told them the trooper had beaten him up, and that he asked them not to leave him. Both described Sims’ face as bloody with a lot of gravel and dirt. Gideon testified that he did not remember whether Sims’ hands were filthy and bloody. Sandage testified that he did not see any blood on Sims’ arms when he uncuffed him. Regarding Ward’s condition, Sandage and Gideon indicated that when they arrived, Ward gave no appearance of having been in a struggle. Gideon testified that Ward was in regular uniform, that it did not appear to be torn, and that he did not notice any injuries to Ward. Sandage described Ward’s uniform as spotless and his appearance as perfect.

Trooper Sandage transported Sims to the hospital where he underwent blood testing and an examination by Dr. Mark Tilyou. After the examination, including the neurological testing and the CAT scan, came back normal, Dr. Tilyou released Sims from the hospital. Sandage transported Sims to the Amite jail where he was charged with battery on a police officer, resisting arrest, improper lane usage, and driving while |nintoxicated. Sims entered a plea of no contest to the DWI charge, and was acquitted on the three other charges.

In addition to this factual testimony, there were two expert witnesses who testified at trial about the bloodstains on Sims’ clothes. Ronald Singer, an expert in crime scene analysis and bloodstain pattern analysis, testified on behalf of plaintiffs. Singer was given items to examine, including Sims’ clothing, some photographs, and various statements, and was asked specifically to determine which version of events was more consistent with the evidence. He testified that he found spots on the shirt that he considered to be blood although no testing was performed to determine if it actually was blood. On the pants, he noted one small spot that he considered to be blood on the inside of the waistband. Based on the items that he was provided, it was his opinion that the evidence was more consistent with Sims’ version of events. He specifically noted the lack of blood on the back of Sims’ shirt and pants is inconsistent with Ward’s statement that their hands were covered with blood. Singer said that while there are bloodstains on the back of the shirt, they are not in a location nor in the quantity that he would expect to see if the individuals’ hands were bloodied to the extent that Ward claimed in his statement. Singer admitted that it was hard to tell how some of the stains got on the shirt, especially in light of the fact that Sims was transported with the shirt still on; however, it is the lack of blood in some areas that concerns him.

In contrast to this expert, the defense called Tom Bevel, who was accepted as an expert in the field of bloodstain pattern analysis. He likewise examined Sims’ clothing in order to give his opinion as to what version of events was most likely with regard to the physical evidence. He admitted that he did not test the clothing to determine whether the stains were in fact Inhuman blood. After examining the clothes with the unaided eye and then with magnification and cross lighting, he found areas on both the pants and shirt that had the correct color and consistency that he would expect blood to have. With regard to the handcuffs being removed, Bevel acknowledged that it greatly broadened the opportunity for blood to be transferred. He believed that the majority of blood on Sims’ hands, especially at the hospital, came from his hands touching various places on his face. In his testimony, he admitted that there were places in both statements that were consistent with the physical evidence. However, in his opinion, the physical evidence was more consistent with the trooper’s version of events. With regard to one area, however, he felt that the trooper was mistaken as to the volume of blood that was on Sims’ hands and his hands. He pointed to the fact that there were no blood drips on the back of the shirt or pants, leading him to conclude that there was not a great volume of blood.

In challenging the jury verdict, plaintiffs contend that while there are two versions of the incident, the evidence presented only reasonably supports Sims’ version. Plaintiffs spend a large portion of this assignment discussing prejudicial remarks and improper arguments by defense counsel. Specifically, plaintiffs assert that defense counsel presented Sims as a rich, successful, lying, vengeful personal injury trial lawyer who knew how to fabricate claims in lawsuits in order to get a big award that the jurors/taxpayers would have to pay. In addition to sending out this message that personal injury trial lawyers are not entitled to receive money, defense counsel also appealed to the jurors to cure the social ill of drinking and driving. According to plaintiffs, these extensive prejudicial remarks were meant to distract the jury from the fact that there was absolutely no evidence supporting the trooper’s version of events.

|13We first note that plaintiffs did not object to most of the complained of remarks. Failure to object constitutes a waiver of the right to complain regarding the argument on appeal. Cooper v. United Southern Assurance Co., 97-0250 (La.App. 1 Cir. 9/9/98), 718 So.2d 1029, 1088. Moreover, the allegedly objectionable statements were subject to corrective measures. The court instructed the jury prior to opening statements as follows: “ ... the arguments which will be addressed to you by the attorneys in this case, are not evidence. Your determination of the facts, must be based solely upon all the testimony that you hear and the other evidence that is submitted.” Also, after closing arguments, the judge instructed the jury that the arguments of counsel were not evidence. The court further informed the jurors that they must deliberate without regard to sympathy, prejudice, or passion for or against any party. The judge stated, “The case should be considered and decided as an action between persons of equal standing in the community. The State Police is entitled to the same fair trial at your hands as a private individual. All persons stand equal before the law, and are to be dealt with as equals in a court of justice.” These instructions given by the trial judge served to counteract any possible adverse effects of defense counsel’s arguments. Given these circumstances, we do not find that the jury was unduly prejudiced by defense counsel’s comments.

As part of their challenge to the jury verdict, plaintiffs also point to the lack of evidence to support Ward’s version of events. In one of their arguments, plaintiffs allege that the photographs taken of Sims the day after the incident demonstrate the complete lack of injuries to Sims’ arms. Thus, these photographs contradict Ward’s version that as he and Sims were struggling, they were skidding across the parking lot with Sims’ arms underneath his body. We note that while the photographs certainly do not |14show extensive injuries to Sims’ arms, they do reflect some scratches. Also, the severity of the scratches would depend on the position of Sims’ arms as they were struggling.

Plaintiffs also point to the complete lack of blood on Sims’ clothing. They claim that this absence of blood corroborates Sims’ version that he was handcuffed before he received any injuries and contradicts Ward’s claim that both of their arms and hands were covered with blood at the time he placed the cuffs on Sims. Once again, conflicting evidence was presented on this issue. Plaintiffs’ expert, Ronald Singer, testified that while there were bloodstains on the back of the shirt, they were not in the location nor in the quantity that he would expect to find if the individuals’ hands were covered in blood. Singer testified that the lack of blood on some areas of the shirt led him to believe the version of events as told by Sims. In contrast, defendants’ expert, Tom Bevel, testified that the physical evidence was more consistent with the trooper’s version of events. Bevel testified that he felt the trooper was mistaken as to the volume of blood on their hands. He pointed to the fact that there were no blood drips on the back of the shirt or pants, leading him to conclude that there was not a great volume of blood. Also, there was testimony at trial which indicated that the amount of blood on a person’s clothing would depend on how that person was actually handcuffed.

Plaintiffs also point to Maurice Effler’s testimony to support their version of events. At trial, Effler, a passerby, testified that on June 3, 2000, he passed De-latte’s Grocery Store on his way home from a function in the Superdome. As he was coming upon the store, he saw police lights and thought that there might have been a robbery. He slowed down and saw a state trooper standing over a man lying flat on the ground on his stomach. Effler did not recall whether or not the trooper had any part of his body on |15the man on the ground. He testified that he did not see a struggle going on and that it looked like the trooper had the situation under control, so he just passed and continued on home. Plaintiffs claim that Effler’s testimony contradicts Ward’s story that he was on his knees the whole time. However, in contrast to this testimony, Bryant testified that when he arrived on the scene, Ward was stooped next to an individual lying on the ground.

We note that in addition to the inconsistent testimony specifically mentioned above, the jury was presented with conflicting testimony throughout the entire trial. Two very different versions of events with many inconsistencies were presented to the jury. We do not agree with plaintiffs’ argument that there was no reasonable evidence which supported Ward’s story. There was some evidence which supported Sims’ version, and there was some evidence that supported Ward’s version. The jury obviously chose to give more credibility to the evidence which supported the trooper’s version.

We have thoroughly reviewed the testimony of all the witnesses as well as all of the evidence presented at trial, even if we failed to mention it herein. We have also carefully reviewed all of the arguments presented by plaintiffs regarding the lack of evidence to support Ward’s version of events. Based on our review of the entire record, we are not prepared to say that the jury’s findings were clearly wrong or manifestly erroneous. Thus, the arguments raised by plaintiffs in this specification of error are without merit.

SPECIFICATION OF ERROR NUMBER TWO

In their second alleged error, plaintiffs assert that the trial court erred in granting defendants’ motion in limine to exclude the testimony of an expert witness. In their pretrial order, plaintiffs noticed their intent to call two expert witnesses, Stuart James and Ronald Singer, both of whom were to |1fitestify regarding blood spatter analysis, including injury/wound pattern analysis. On March 24, 2004, defendants filed a motion in limine seeking to “exclude or in the alternative limit, cumulative, prejudicial, and excessive expert testimony regarding blood spatter analysis and injury/wound pattern analysis ... and further to exclude the use of the clothing examined by the experts as not properly authenticated with no viable chain of custody.” After a hearing, the court granted the motion in limine limiting plaintiff to one expert instead of two.

Plaintiffs now contend that they were prejudiced by this ruling. They contend that the state purposely sought to eliminate this testimony, not because it was cumulative, but rather because defense counsel did not want to draw attention to the reconstruction testimony that would support Sims’ version of events. Plaintiffs contend that this additional expert was made more essential because the defendants intentionally and improperly objected, in front of the jury, to the use of notes by plaintiffs’ expert, Ronald Singer. Even though the judge ruled that an expert could certainly refer to his notes in his testimony, plaintiffs assert that the jury was improperly poisoned with the belief that if he had to use notes, they should not believe his testimony. The use of an additional expert would have overcome the suggestion that the only expert to testify had to refer to his notes.

The trial judge has discretion in conducting a trial. The judge is required to do so in an orderly, expeditious manner and to control the proceedings so that justice is done. LSA-C.C.P. art. 1631. The judge’s discretion includes the order of presentation of witnesses as well as the admissibility of a witness’s testimony. The trial judge has great discretion in the manner in which the proceedings are conducted before this court, and it is only upon a showing of gross abuse of discretion that appellate courts 17have intervened. Pino v. Gauthier, 633 So.2d 638, 648 (La.App. 1 Cir.1993), writs denied, 94-0243 (La.3/18/94), 634 So.2d 858 and 94-0260 (La.3/18/94), 634 So.2d 859.

According to LSA-C.E. art. 403, relevant evidence may be “excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” Testimony by experts is governed by LSA-C.E. art. 702 which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Comment (d) to LSA-C.E. art. 702 explains, “[bjroad discretion should be accorded the trial judge in his determination as to whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert.” Additionally, the trial judge’s much discretion will not be disturbed on appeal absent manifest error. Pino v. Gauthier, 633 So.2d at 650.

In the present case, we find no error in the trial court’s granting of defendants’ motion in limine to exclude one of the experts. First, all of the pretrial information indicated that the two experts were similarly qualified and would testify about the same thing. Moreover, the judge allowed the plaintiffs to select which expert they wanted to testify. Given these circumstances, we find no merit to the arguments raised by plaintiffs in this specified error.

For the reasons set forth herein, the judgment of the trial court is affirmed.

AFFIRMED.

      . At trial, several law enforcement personnel testified that the arm bar takedown is a legitimately used and recognized technique to gain control of an uncooperative arrestee. It was described as a fairly violent maneuver which can result in injuries to the face and forehead if the individual hits the ground face first.

      . Sims underwent two blood alcohol tests at the hospital. One blood test showed a blood alcohol level of .14, and the other showed a level of .137.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    STATE of Louisiana v. Patrick MIZELL.
    No. 2005 KA 2516.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Charles C. Foti, Jr., Attorney General, Kristi D. Hagood, Assistant Attorney General, Baton Rouge, Dorothy A. Pendergast, Special Appeals Counsel, Metairie, for State of Louisiana.
    John W. Lindner, II, Covington, for De-fendanfi-Appellant Patrick Mizell.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

1 ¡/The defendant, Patrick Mizell, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42. He pled not guilty. The state did not elect to seek the death penalty for this offense, and following a trial, the jury returned a non-unanimous (11-1) verdict of guilty as charged. The defendant moved for a new trial, but the trial court denied the motion. The defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now appeals, urging in a single assignment of error that the trial court erred in denying the motion for a new trial, as a conviction under LSA-R.S. 14:42(A)(4) requires a unanimous verdict. Finding no merit in the assigned error, we affirm the defendant’s conviction and sentence.

FACTS

On at least two separate occasions, the defendant sexually abused his younger cousin, C.B. One night, C.B. was asleep in her home when she was awakened by a “sharp pain” in her vaginal area. Once she was completely awake, C.B. observed the defendant on top of her moving up and down. The defendant covered C.B.’s face with his hands to prevent her from making any noise. The defendant continued to move up and down causing pain to C.B.’s vagina. C.B. denied penetration during this incident. When asked if the defendant touched her with his penis, C.B. replied, “other than the pain, no.” The defendant warned that he would hurt C.B. if she told anyone what had occurred. A few days later, in response to an inquiry by her brother as to whether “anything bad happened to [her],” C.B. told her brother of the incident. C.B.’s brother informed her that he had entered the room that night and witnessed the defendant on top of her. Neither C.B. nor her brother reported the incident to an adult. C.B. indicated that her decision not to report the incident was based upon the threat of harm made by the defendant. According to C.B., she was eight years old when this incident | ¡¡occurred. The defendant, who is approximately five years older than C.B., was thirteen at that time.

On another occasion, when C.B. was eleven years old, she was alone in the living room of her home when the defendant approached and forcefully grabbed her off of the sofa. C.B. ended up on the floor. The defendant pulled C.B.’s pants and panties down, laid on top of her, inserted his penis into her vagina, and began moving “up and down.” Once again, the defendant threatened to hurt C.B. if she told anyone. Fearful, C.B. did not immediately report the incident. Later, after viewing a sexual abuse video at school, C.B., a fourth grader, informed the school counselor that she had been sexually abused. The counselor notified the appropriate authorities. This more recent conduct, which occurred between March 1, 2002, and May 31, 2002, formed the basis of the instant charge.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues the trial court erred in denying his motion for a new trial. Specifically, the defendant asserts LSA-Const. art. I, § 17(A) requires a unanimous jury of twelve persons to render a verdict for conviction under LSA-R.S. 14:42(A)(4) (victim under age of twelve), regardless of whether or not the state chooses to seek the death penalty. Because the verdict in this case was not by a unanimous jury, the defendant argues the verdict is invalid and a new trial should have been granted. The defendant further asserts the Louisiana Constitution requires a unanimous verdict in cases where the punishment may be capital and a 1997 legislative amendment to LSA-R.S. 14:42 is unconstitutional insofar as it deprives a defendant charged with a capital crime of this constitutional right to a unanimous verdict. While he acknowledges that the legislature, in its 1997 amendment to LSA-R.S. 14:42, attempted to give the district attorney power to alter the classification of a crime from capital to non-capital, the defendant argues the amendment is unconstitutional as “the | classification of an offense as ‘capita? depends not upon the discretion of the District Attorney, but rather by the types of punishments possible for a particular crime.”

The state, through briefs from both the district attorney’s and the attorney general’s offices, argues LSA-R.S. 14:42 is not unconstitutional, as it specifically provides for prosecution of the aggravated rape of a victim under twelve years as “either” a capital offense or a non-capital life imprisonment offense. The language of the statute allows a non-unanimous verdict in non-capital prosecutions only. Thus, the state asserts, there is no violation of LSA-Const. art. I, § 17(A)’s requirement that capital verdicts be unanimous.

In a brief review of the history of the statute, we note that in 1978 the Louisiana legislature amended and reenacted LSA-R.S. 14:42, which provides the definition and penalties for the offense of aggravated rape. From the time of the reenactment of the statute, the penalty for aggravated rape, under any factual circumstances, was life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. See 1978 La. Acts, No. 239, § 1. The penalty remained the same until 1995 when the legislature amended LSA-R.S. 14:42 to permit the penalty of death in cases of aggravated rape when the victim was under the age of twelve years. See 1995 La. Acts, No. 397, § 1. With this amendment, the legislature made aggravated rape, under certain factual circumstances, a capital offense. Thus, under LSA-Const. art. I, § 17(A) and its statutory counterpart, LSA-C.Cr.P. art. 782(A), a prosecution for the aggravated rape of a victim under the age of twelve years required a unanimous verdict. LSA-Const. art. I, § 17(A) provides, in pertinent part:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.

|fiLater, in 1997 La. Acts, No. 898, § 1, the legislature again amended the aggravated rape statute to provide that a unanimous jury verdict would not be required if the district attorney did not seek a capital verdict. Pursuant to the statutory revision authority of the Louisiana State Law Institute, the 1997 amendment is now found in subsection D of LSA-R.S. 14:42 and provides as follows:

D. (1) Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
(2) However, if the victim was under the age of twelve years, as provided by Paragraph A(4) of this Section:
(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment may be capital shall apply.
(b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.

In support of his argument that a unanimous verdict was required, the defendant cites the Louisiana Supreme Court’s decision in State v. Goodley, 898 So.2d 1068 (La.1981). In Goodley, 398 So.2d at 1071, the supreme court held that “a unanimous jury is required in a case where the defendant is being prosecuted under an unamended charge of first degree murder, a capital offense, to render any verdict, notwithstanding the fact that the state may have stipulated that it would not seek the death penalty.” The court reasoned: Goodley, 398 So.2d at 1070-71. Finding the defendant’s conviction by a non-unanimous jury invalid, the supreme court set aside the conviction and sentence and remanded the case to the trial court for a new trial.

The Legislature, in enacting the controlling provision herein, relied on the severity of the punishment provided for a crime as the basis for its classification scheme in providing the number of jurors which must compose a jury and the number of jurors which must concur to render a verdict. As stated above, La. Const, of 1974 Art. I, § 17 and C.Cr.P. art. 782 provide in pertinent part:
“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.”
1 fiThus, the Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant may eventually be convicted of, nor is it based on an after the fact examination of what sentence he receives. Rather, the scheme is based on a determination by the Legislature that certain crimes are so serious that they require more strict procedural safeguards than other less serious crimes. It was determined that in charged capital offenses a unanimous verdict for conviction, not just sentencing, is necessary and there is no attendant provision giving the state the authority to alter that scheme on its own motion by simply stipulating that the death penalty will not be sought in a certain case.

In the instant case, the defendant asserts that the fact that the state chose not to pursue the death penalty does not alter the unanimous jury verdict requirement. He argues that the fact that the legislature, in 1995, elevated the crime of aggravated rape of a victim under the age of twelve to a capital offense is sufficient to trigger the constitutional requirement of a unanimous verdict.

Upon review of the law and the jurisprudence, we find, as did the trial court, there is no conflict between LSA-R.S. 14:42 and LSA-Const. art. I, § 17(A). We agree with the defendant’s assertion that in 1995 when the legislature amended the aggravated rape statute to allow for a penalty of death when the victim is under twelve years of age, the offense, under those circumstances, became a capital offense and required a unanimous jury verdict to convict. Thus, it is clear that the prosecution of any aggravated rape of a victim under twelve between the effective dates of the 1995 and 1997 amendments would have been governed by Goodley and would have required a unanimous verdict. However, as the trial court correctly noted in its written reasons for judgment, when the legislature in 1997 amended LSA-R.S. 14:42, a “hybrid” 17capital/non-capital aggravated rape statute was created. As amended, LSA-R.S. 14:42(D), unlike LSA-R.S. 14:30 (the first degree murder statute), now allows for either a capital or non-capital aggravated rape charge when the victim is under the age of twelve. We find that the 1997 legislative amendment to the aggravated rape statute does not, in any way, violate LSA-Const. art. I, § 17(A). In fact, the amendment reflects a conscious effort by the legislature to avoid offending the constitution and to modify the penalty provisions of the aggravated rape statute so as to avoid conflict with the holding in Goodley. Contrary to the defendant’s assertions, the legislative amendment does not deprive the defendant of the constitutional requirement of a unanimous verdict. A unanimous verdict is still required when the state opts to prosecute under LSA-R.S. 14:42(D)(2)(a), the capital verdict portion of the “hybrid” statute. By creating LSA-R.S. 14:42(D)(2)(b), which allows for a non-capital verdict prosecution, the legislature created the “attendant provision” mentioned in Goodley, by which the state is vested with the discretion of pursuing a violation of the aggravated rape statute (when the victim is under the age of twelve) as a capital offense or as a non-capital life imprisonment offense. In Goodley, the court noted, “if the state does not want to meet the unanimous verdict requirement mandated in prosecutions of capital crimes, it can recharge the defendant with a non-capital crime.” Goodley, 398 So.2d at 1071. By amending the aggravated rape statute, the legislature created the non-capital crime alternative to a prosecution under LSA-R.S. 14:42(D)(2)(a), an alternative that simply did not exist prior to the amendment.

It is well-settled that the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute. LSA-C.Cr.P. art. 61; State v. Walker, 00-0334 (La.App. 1st Cir.12/22/00), 775 So.2d 663, 666, writ denied, 01-0235 (La.12/7/01), 803 So.2d 23. In this case, once the district attorney opted to prosecute the offense as a non-capital life imprisonment offense, capital punishment was no longer a possibility. Thus, the constitutional provision regarding a criminal case in which the punishment “may be capital” was no longer applicable. The provisions of LSA-C.Cr.P. art. 782 relative to |scases in which punishment is necessarily confinement at hard labor were triggered. Under LSA-Const. art. I, § 17(A) and LSA-C.Cr.P. art. 782(A), in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. In this case, the trial court noted, and we agree, that “providing the district attorney with the ability to elect the manner in which it would proceed did not infringe upon protections guaranteed by the constitution because what the legislature gives, it may take away.” Thus, the trial court did not err in following the statute and refusing to require a unanimous verdict for the defendant’s non-capital aggravated rape prosecution and conviction. The defendant’s motion for a new trial was properly denied. Accordingly, this assignment of error lacks merit.

For all the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      .In his brief, the defendant cites LSA-R.S. 14:42(C) as the applicable provision. However, at all times pertinent to this case, the correct statutory citation for aggravated rape of a victim under the age of twelve was LSA-R.S. 14:42(A)(4).

      . In accordance with LSA-R.S. 46:1844(W), the victim is referenced only by her initials.

      . From her trial testimony, it is unclear whether the defendant pushed C.B. onto the floor or if she fell.

      . In 2003, the legislature amended LSA-R.S. 14:42(A)(4) to provide that aggravated rape occurs when the victim is under the age of thirteen years. See 2003 La. Acts, No. 795, § 1.

      . The legislature alone determines what acts are punishable as crimes and the proscribed penalties. State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, 979; State v. Dorthey, 623 So.2d 1276, 1278 (La.1993). The legislature is not required to select the least severe penalty for the crime as long as the selected penalty is not cruelly inhumane or disproportionate to the offense. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

      . See also State v. Goodley, 418 So.2d 650 (La. 1982), for Justice Lemmon's dissent.

      . A search of the jurisprudence does not reveal any reported cases of aggravated rape of a victim under the age of twelve years during this period.


author: WALTER J. ROTHSCHILD, Judge, Ad Hoc.

text:
    Vonda JENKINSON v. NORTH OAKS MEDICAL CENTER.
    No. 2005-CA-1304.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Cassandra Butler, Independence, Counsel for Plaintiff/Appellant.
    Alton B. Lewis, Shaan M. Aucoin, Hammond, Counsel for Defendant/Appellee.
    Panel composed of Ad Hoc Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge, Ad Hoc.

^Claimant, Vonda Jenkinson, appeals a judgment of the worker’s compensation judge, dismissing her claims against her former employer, North Oaks Medical Center (“North Oaks”). For the reasons which follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Vonda Jenkinson began her employment with North Oaks as a laboratory assistant on June 22, 2000. Four days later, on June 26, 2000, while assisting with a patient in the intensive care unit, Ms. Jenkin-son was splashed with the patient’s blood. Ms. Jenkinson asserts that the blood splashed on her hair, mouth, eyes, and clothing. An incident report was written and Ms. Jenkinson was informed that the source patient whose blood splashed on her was positive for hepatitis C. Ms. Jen-kinson’s blood was drawn for testing the same day as the incident. When the test results were received, Eileen Johnson, who is the Coordinator of Employee Wellness for North Oaks, informed Ms. Jenkinson that she tested positive for hepatitis C. Ms. Johnson told her to follow-up with her regular doctor, and Ms. Jenkinson continued to work at North Oaks. Ms. Jenkinson was re-tested in December 2000, and she again tested positive for hepatitis C.

Isln February 2001, Ms. Jenkinson suffered a “needle stick” while working at North Oaks. Although the source patient was positive for hepatitis C, Ms. Jenkinson was not tested for hepatitis C this time because she had already tested positive twice.

Ms. Jenkinson testified that she was not aware that she had hepatitis C until August 2003 when she was hospitalized. She stated that Ms. Johnson led her to believe that her previous positive test results were “false positives.” She testified that after she was diagnosed with hepatitis C in 2003, she began having heart problems, fatigue, weight gain, and could not work. She asserts that she still has not been released to return to work.

Eileen Johnson testified that she has a nursing degree and that she has had training and education related to hepatitis C. On June 26, 2000, Ms. Johnson was notified that there was an incident in which Ms. Jenkinson was splashed with a patient’s blood. On June 30, 2000, she informed Ms. Jenkinson that her test results were positive for hepatitis C. According to Ms. Johnson, Ms. Jenkinson indicated that she probably contracted the disease from her ex-husband.

Ms. Johnson testified that hepatitis C does not show up on blood tests immediately after an exposure. Rather, at the time of Ms. Jenkinson’s exposure at North Oaks, it took about six weeks after an exposure for hepatitis C to show up on a blood test. Ms. Jenkinson had only worked at North Oaks for four days prior to the testing that yielded positive results for hepatitis C. Therefore, Ms. Johnson believes that Ms. Jenkinson’s hepatitis C was a pre-existing condition. Ms. Johnson testified that she never informed Ms. Jen-kinson that she was not positive for hepatitis C or that the results were “false positives.”

On June 14, 2004, Ms. Jenkinson filed a disputed claim for compensation, asserting that she contracted hepatitis C as a result of the June 26, 2000 blood splash, and contending that she is entitled to worker’s compensation benefits as a Dresult of this “occupational disease.” Trial was held on April 6, 2005. On April 12, 2005, the worker’s compensation judge rendered a judgment, dismissing Ms. Jenkinson’s claims against North Oaks with prejudice based on his finding that Ms. Jenkinson “suffered from the disease complained of prior to her exposure to same while employed with the defendant.” It is from this judgment that Ms. Jenkinson appeals.

DISCUSSION

On appeal, Ms. Jenkinson argues that the worker’s compensation judge erred in denying her claim for benefits, because the test results suggesting that she had a pre-existing condition were contradicted by other testing. She asserts that her medical records from October 2001 until September 2003 show that she tested negative for hepatitis C, which indicates that her June 2000 and December 2000 positive test results were “false positives.” We disagree.

An occupational disease or illness is “due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” LSA-R.S. 23:1031.1(B); O’Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00), 758 So.2d 124, 132. A disease contracted by an employee who has worked for a particular employer for less than twelve months is presumed to be nonoccupational and not to have been contracted in the course of and arising out of such employment. LSA-R.S. 23:1031.1(D); Hurst v. Sanderson Farms, Inc., 02-1334 (La.App. 1 Cir. 5/9/03), 846 So.2d 954, 957-958. In order for an occupational disease to be compensable when the claimant has been employed with the defendant for less than twelve months, LSA-R.S. 23:1031.1(D) requires that the employee prove causation by a “preponderance of the evidence.” In order to satisfy this burden, expert testimony supporting a finding of an occupational | .^disease is required. Moore v. Miciotto, 36,727 (La.App. 2 Cir. 1/29/03), 836 So.2d 1252, 1255.

In the present case, Ms. Jenkinson began working for North Oaks on June 22, 2000, and the blood splash incident occurred four days later, on June 26, 2000. Her blood tests taken in June 2000 and December 2000 were both positive for hepatitis C. Both of these tests were performed within twelve months of her employment with North Oaks. Accordingly, it is clear under LSA-R.S. 23:1031.1(D) that Ms. Jenkinson’s diagnosis of hepatitis C is presumed to be non-occupational and not to have been contracted in the course of her employment with North Oaks. Thus, it was her burden at trial to prove causation by a preponderance of the evidence. Ms. Jenkinson clearly did not meet this burden.

Ms. Jenkinson blood was taken four days after her employment began with North Oaks, and she tested positive for hepatitis C. Ms. Johnson testified that in June 2000, it would have taken six weeks after an exposure before a blood test would reveal the presence of hepatitis C. Ms. Jenkinson did not present any expert testimony to refute this assertion. In fact, Ms. Jenkinson did not present any expert testimony at all to support her claim that the hepatitis C was an occupational disease that she contracted while working at North Oaks. Ms. Jenkinson argues that she tested negative for hepatitis C from October 2001 until September 2003. However, this assertion is not supported by the medical evidence admitted at trial.

The factual findings of the worker’s compensation judge are subject to the manifest error standard of review. Dunaway v. Lakeview Regional Medical Center, 02-2313 (La.App. 1 Cir. 8/6/03), 859 So.2d 131, 133. Considering the testimony, evidence and caselaw, we find no manifest error in the worker’s compensation judge’s finding that Ms. Jenkinson had a pre-exist-ing condition and did not contract hepatitis C during her employment with North Oaks. Accordingly, | fiwe affirm the decision of the worker’s compensation judge, dismissing Ms. Jenkinson’s claims against North Oaks with prejudice.

Considering our decision that the worker’s compensation judge did not err in finding that Ms. Jenkinson did not suffer an occupational disease, it is unnecessary for this Court to address Ms. Jenkinson’s arguments regarding the timeliness of her occupational disease claim and whether or not North Oaks was arbitrary and capricious in denying her claim.

DECREE

For the reasons set forth above, we affirm the judgment of the worker’s compensation judge, dismissing Ms. Jenkin-son’s claims against North Oaks with prejudice.

AFFIRMED.


author: CLARENCE E. MCMANUS, Judge Ad Hoc.

text:
    Luwana THOMAS v. SONIC.
    No. 2005-CA-1277.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Daniel Steven Wanko, Jr., The Wanko Law Firm, Covington, Counsel for Plaintiff/Appellee.
    John J. Rabalais, Jade C. McKeough, Rabalais, Unland & Lorio, Covington, Counsel for Defendant/Appellant.
    Panel composed of Ad Hoc Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. MCMANUS, Judge Ad Hoc.

1 STATEMENT OF THE CASE

On June 16, 2003, claimant, Luwana Thomas, was injured while working as an assistant manager at Sonic Drive-In. She was standing at the manager’s desk changing the credit card paper. She reached onto a shelf for the paper when the paper and other items fell on her. She reported the injury to her employer and was told to seek medical treatment. She was treated at the emergency room of Lakeview Regional Medical Center on June 16, 2003. Sonic completed a First Report of Injury form stating details of the accident and stating that Thomas received medical treatment at Lakeview Regional.

Thomas filed a Disputed Claim for Compensation on June 14, 2004 seeking penalties and attorney’s fees for Sonic’s failure to pay her emergency room bills. Attached to the Disputed Claim were two bills from Lakeview Regional dated November 26, 2003 and February 28, 2004, seeking $506.00 for treatment on June 16, 2003 and a bill dated January 19, 2004 from Telerecovery on behalf of Data Services Radiology for $55.00. Thomas and Sonic both filed motions for summary judgment. Both motions were denied on February 4, 2005, after a hearing before the workers’ compensation court.

Trial was held on February 24, 2005 and the workers’ compensation court ordered Sonic to pay $2,000.00 in penalties and $2,000.00 in attorney’s fees because of Sonic’s failure to timely pay medical bills as required by La. R.S. |S23:1201(E). A written judgment was signed by the court on February 25, 2004. Sonic now timely appeals that judgment. Thomas filed an Answer to Appeal seeking an increase in the award of attorney’s fees to cover the additional expenses and fees incurred as a result of this appeal.

DISCUSSION

On appeal, Sonic argues two assignments of error. First, Sonic argues that the workers’ compensation court committed manifest error in awarding penalties and attorney’s fees and finding that Sonic failed to timely pay Thomas’ medical expenses pursuant to La. R.S. 23:1201. Sonic argues there was no evidence provided to prove the medical expenses did not go unpaid for over sixty days after written demand for payment. Sonic argues that Thomas never provided written demand for payment of the medical expenses to it, or its insurance carrier. Sonic argues that the only medical bill from Lakeview Regional received by it was received on March 8, 2004 and was paid on May 3, 2004, which is less than sixty days. Second, Sonic argues that the workers’ compensation court committed legal error in finding that Sonic failed to timely pay Thomas’ medical expenses because La. R.S. 23:1201 requires written notice be received by the employer or the workers’ compensation insurance carrier prior to the beginning of the 60 days period before which penalties are assessed. Sonic argues the workers’ compensation court failed to utilize the proper legal standard by not applying a strict and narrow construction of La. R.S. 23:1201 in awarding penalties. Sonic further argues the workers’ compensation court violated due process by not granting summary judgment in its favor when Thomas failed to provide an opposition to the motion.

In opposition, Thomas contends that she delivered a copy of the outstanding medical bill to her supervisor, Sheila Hodge, in September 2003. She contends the Lbills remained outstanding; therefore, she filed the claim for penalties and attorney’s fees on June 14, 2004. Thomas also points out that, the adjuster for Sonic’s workers’ compensation insurance carrier, Kelly Deaton, testified at trial that Sonic had written knowledge of the outstanding bills. Therefore, Thomas argues the workers’ compensation court correctly found that Sonic had violated La. R.S. 23:1201 by failing to timely pay her medical expenses and the court correctly awarded penalties and attorney’s fees.

Factual findings in a workers’ compensation ease are subject to the manifest error or clearly wrong standard of review. Miller v. Fidelity Associates, Inc., 2004-2218 (La.App. 1 Cir. 11/4/05), 927 So.2d 393, citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

La. R.S. 23:1201(E) provides that medical benefits payable under workers’ compensation shall be paid within sixty days after the employer or insurer receives written notice of the expense. La. R.S. 23:1201(F) states:

F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand ^dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
(3) Except as provided in Paragraph (4) of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.
(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.
(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance.

We find the workers’ compensation court was not manifestly erroneous in finding that Sonic failed to timely pay Thomas’ medical expenses and awarding Thomas penalties and attorney’s fees. Thomas testified in her deposition that she spoke to the workers’ compensation insurance adjuster, Brandy, when she started receiving bills from Lakeview Regional around the first of September 2003. Thomas stated she was told by Brandy that the bills would be taken care of Thomas further testified in her deposition that she continued to receive bills in the mail so she called Brandy again and was told the bills had been paid.

Thomas testified at trial that when she started receiving the bills from Lakeview Regional around the middle of August, she took them to Sheila Hodge at | fiSonic. According to Thomas, Hodge told her to fax them to the workers’ compensation insurance carrier and she did fax the documents from the fax machine in the Sonic office. She further testified that she talked to the adjuster and was told the bills would be paid.

Kelly Deaton, the adjuster for the workers’ compensation insurance carrier, testified at trial that the previous adjuster on the claim was Brandy Daigle. Deaton was not the adjuster on the claim at the time Thomas contends she called and sent the bills to the insurance company. Deaton testified that the workers’ compensation insurance carrier received the Lakeview Regional bills on March 8, 2004 and paid them on May 3, 2004. She testified that the claim file noted no correspondence from Thomas; however, she was unable to confirm whether or not Brandy had any conversations, or shared correspondence, with Thomas regarding the Lakeview Regional bills, prior to March 8, 2004.

Therefore, we find the workers’ compensation court was not manifestly erroneous or clearly wrong in concluding that Sonic failed to timely pay the Lakeview Regional bills in accordance with La. R.S. 23:1201.

Accordingly, we affirm the judgment of the workers’ compensation court awarding Thomas $2,000.00 in penalties and $2,000.00 in attorney’s fees for Sonic’s violation of La. R.S. 23:1201. Further, we award Thomas an additional $1,000.00 in attorney’s fees for her legal expenses incurred as a result of this appeal.

AFFIRMED.


author: JAMES L. CANNELLA, Judge Ad Hoc.

text:
    BAYOU LIBERTY ASSOCIATION, INC., Sean Riley and K.T. Porter v. The ST. TAMMANY PARISH COUNCIL (Parish of St. Tammany).
    No. 2005-CA-1228.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied Aug. 1, 2006.

      Edward A. Shamis, Jr., Slidell, for Appellants.
    Walter P. Reed, District Attorney, Neil C. Hall, III, Assistant District Attorney, Office of the District Attorney, Covington, for Appellee.

      Panel composed of Ad Hoc Judges JAMES L. CANNELLA, SUSAN S. CHEHARDY and FREDERICK HOMBERG WICKER.
   JAMES L. CANNELLA, Judge Ad Hoc.

|Jn a zoning case, the Plaintiffs, Bayou Liberty Association, Inc., Sean Riley, and K.T. Porter, appeal from a judgment granting a peremptory exception of no cause of action filed by the Defendant, The St. Tammany Parish Council. We reverse and remand.

On April 29, 2004, the Plaintiffs filed a petition for declaratory judgment in the district court to have a decision by the Defendant, approving the rezoning of a 60 acre parcel of land in Slidell, Louisiana from a suburban (A-2) district to a Planned Unit Development (PUD) district, declared void. In response, the Defendant filed various exceptions, including the peremptory exception of no cause of action. The exception of no cause of action was granted on January 3, 2005.

LThe petition asserts the following facts. The Plaintiffs reside along or near Bayou Liberty in Slidell, Louisiana. Paris Properties, L.L.C. (Paris Properties) is the owner of 60 acres near or adjacent to the Plaintiffs. On April 23, 2001, Kelly J. McHugh & Associates, on behalf of Paris Properties, applied to St. Tammany Parish to change the zoning of the 60 acres from A-2 (suburban) District to Planned Unit Development (PUD) District. The purpose of the application was to develop a residential subdivision tentatively named Logan’s Tract with 120 lots, averaging in size from 75-80 x 125 feet. The original A-2 zoning requires lots to be no less than one acre in size. A conceptual plan was submitted showing that the eastern two-thirds of the site are located in Flood Zone A, the 100-year flood zone. The plan further shows that most of the site is wetlands, and that many of the proposed residential lots would be located in Flood Zone A. The plan was attached to the petition.

The Parish Zoning Board approved the rezoning in July of 2001, despite challenges by the Plaintiffs that the conceptual plan shows that the rezoning to a PUD would violate the St. Tammany Parish Land Use Ordinance, No. 523, section 2.09, and in particular section 2.0902. The Plaintiffs asserted that section 2.0902 states that the PUD site “shall use flood hazard areas if present for recreational areas...,” and that the site “shall be suitable for development in the manner proposed without hazard to persons or property adjacent to the site...” Flood hazard areas are defined as land in Flood Zone A in the Code of Ordinances of St. Tammany Parish, Flood Hazard Area Ordinance, section 7-019.01. Further, the Plaintiffs alleged that the site is also not suitable because the surrounding neighborhood is subject to flooding which will be worsened by the proposed development.

LThe Plaintiffs appealed the zoning decision to the Defendant, which reviews the acts of the Zoning Commission and is the final decision-making authority for zoning matters. In August of 2001, the Defendant voted to overturn the Zoning Commission’s decision. However, it nevertheless allowed the decision to stand because the vote was 8-3, less than the 9 votes required to overturn the decision. As a result the Plaintiffs filed suit in the District Court contesting the PUD rezoning.

In June of 2002, the trial judge declared that Ordinance No. 2275, changing the zoning from A-2 to PUD was null and void. In the judgment, the trial judge stated that if the proposed PUD zoning change was brought again, it had to be proposed in the form of an Ordinance to be voted upon by the Defendant, subject to the existing protest (by the Plaintiffs.) The trial judge cited the St. Tammany Parish Code, section 8.0106 for his decision.

The zoning change request was subsequently placed back on the agenda of the Defendant at the request of the developers, in the form of Ordinance Number 2794. The conceptual plan shows that approximately 50% of the proposed residential lots are in Flood Zone A. Nevertheless, on April 1, 2004, the Defendant voted to approve the zoning change over the protests of the Plaintiffs that the rezoning would violate the PUD ordinance, including but not limited to section 2.0902 A.

A hearing on the exceptions filed by the Defendant was held on November 29, 2004. The trial judge ruled from the bench in favor of the Defendant on the exception of no cause of action. He issued written reasons on December 6, 2004, and a written judgment on January 3, 2005. In the judgment, the trial judge denied the exception of no right of action, found the exception of nonjoinder of a party moot, and granted the exception of no cause of action. In his reasons for judgment, |sthe trial judge determined that the PUD ordinance is “non-mandatory.” He stated that “The Ordinance clearly sets forth that its provision are ‘general standards and criteria [that] shall be applicable.’ Section 2.0902.” The trial judge further stated, “The Court cannot conceive that the ordinance should be read to be mandatory after such a preliminary statement.” The judge further cited Section 2.0903 B and B(2), which states that the Zoning Commission “shall determine if the applicant has met all or part of the PUD parameters including.. .2. That the desirable modifications of general zoning or PUD regulations as applied to the particular case, justify such modifications or regulations ...” The trial judge concluded that this language supports his finding that the PUD regulations are “mere general standards and criteria.” He cited Allen v. St. Tammany Parish Police Jury, 96-0938 (La.App. 1st Cir.2/14/97), 690 So.2d 150, although he correctly noted that the case was not directly on point as it dealt with a mandamus.

On appeal, the Plaintiffs contend that the trial judge erred in granting the exception of no cause of action. The Plaintiffs assert that Section 2.09 of PUD Ordinance is mandatory. The Plaintiffs alternatively assert that the trial judge erred in refusing to allow the Plaintiffs an opportunity to amend the petition.

DECLARATORY JUDGMENT

La.C.C.P. art. 1871 states:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.

La.C.C.P. art. 1881 further provides that articles 1871 through 1883 are remedial and their purpose is to settle and afford relief from uncertainty and | ^insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered. The difference between the declaratory judgment and a conventional judgment is that, in a conventional judgment there is an ascertainment or declaration of the rights of the parties (usually implied) and a specific award of relief. The declaratory judgment embodies only the first element which is always express. Davis v. Town of Si Gabriel, 01-0031 (La.App. 1st Cir.2/15/02), 809 So.2d 537, 542; Official Revision Comments to La.C.C.P. art. 1871. A suit for declaratory judgment is an appropriate procedural vehicle to test the validity of an ordinance. Villa Del Rey Citizens Association v. City of Baton Rouge, 233 So.2d 566, 568 (La.App. 1st Cir.1970); Saltamachia v. Parish of Jefferson, 579 So.2d 1197, 1199 (La.App. 5th Cir.1991).

NO CAUSE OF ACTION

A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114, 118; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Ramey, 869 So.2d at 118; Everything on Wheels Subaru, Inc., 616 So.2d at 1235; Rebardi v. Crewboats, Inc., 04-0641 (La.App. 1st Cir.2/11/05), 906 So.2d 455, 457.

Generally, no evidence may be introduced to support or controvert the exception raising the objection of no cause of action. La. C.C.P. art. 931; Ramey, 869 So.2d at 118; Rebardi, 906 So.2d at 457. In addition, all facts pled in the petition must be accepted as true, and any doubts are resolved in favor of the sufficiency of the petition to state a cause of action. Ramey, 869 So.2d at 118; 7Rebardi, 906 So.2d at 457. Thus, the only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Ramey, 869 So.2d at 118; Rebardi, 906 So.2d at 457. If the petition alleges sufficient facts to establish a case cognizable in law, the exception raising the objection of no cause of action must fail. Rebardi, 906 So.2d at 457. Furthermore, when a petition states a cause of action as to any ground or portion of a demand, the exception should be overruled. Ramey, 869 So.2d at 119; Livingston Parish Sewer Dist. No. 2 v. Millers Mut. Fire Ins. Co. of Texas, 99-1728 (La.App. 1st Cir.9/22/00), 767 So.2d 949, 952.

Appellate courts review a judgment sustaining a peremptory exception raising the objection of no cause of action de novo. Ramey, 869 So.2d at 119; Rebardi, 906 So.2d at 457. This is because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Ramey, 869 So.2d at 119; Rebardi, 906 So.2d at 457.

In reviewing the petition to determine whether a cause of action has been stated, the court must, if possible, interpret it to maintain the cause of action. Livingston Parish Sewer Dist. No. 2, 767 So.2d at 952. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Id.; Ramey, 869 So.2d at 119.

If the court finds that the exception of no cause of action should be granted, but the grounds of the objection may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. La.C.C.P. art. 934. If the grounds of the objection cannot be removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. Id.

|sIn this case, the parties refer to the provisions of the St. Tammany Parish ordinances. The ordinances were not attached to the petition, and therefore, are not part of the petition. However, judicial notice can be taken of ordinances, pursuant to La.C.E. art. 202. In accordance with the article, the Defendant asked for the court to take judicial notice of the ordinances and filed a copy into the record. See also: Plaisance v. Davis, 03-0767 (La.App. 1st Cir.11/7/03), 868 So.2d 711, 717. Thus, the ordinances are properly reviewable in determining the exception of no cause of action.

We have reviewed the petition and the ordinances and conclude that the petition does state a cause of action. Even if the provisions of the PUD ordinance are non-mandatory, an issue which we are not determining here, and permit the Defendant discretion to decide rezoning matters, it cannot abuse its discretion. The petition sets out allegations that the Defendant did abuse its discretion in rezoning the property, not only because it violates the PUD ordinance, but because of its | flaffect on the neighboring properties. Thus, we find that the exception of no cause of action should have been denied.

JUSTICIABLE CONTROVERSY & DECLARATORY JUDGMENT

The Defendant argues alternatively that the no cause of action is supported by the lack of justiciable controversy. The Defendant asserts that the Plaintiffs’ complaints are premature since the plan is conceptual only, and is only the first of three plans that have to be approved before anything can be done on the property pursuant to the PUD requirements.

Trial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief. Louisi ana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 00-2517 (La.2/21/01), 779 So.2d 726, 728. For a declaratory judgment to be granted there must be a justiciable controversy, as courts are not permitted to issue advisory opinions based on a contingency which may or may not occur. Id. Courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. Webb, 779 So.2d at 728; St. Charles Parish School Board v. GAF Corp., 512 So.2d 1165, 1170 (La.1987), (on rehearing) (citations omitted).

In this case, we find that there is a justifiable controversy based on the petition, the conceptual plan, and the PUD ordinances. Thus, the action for declaratory judgment is ripe for decision.

Accordingly, the judgment granting the exception of no cause of action is hereby reversed. The case is remanded for further proceedings.

REVERSED AND REMANDED.

      . La.C.E. art. 202 provides:
      A. Mandatory. A court, whether requested to do so or not, shall take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States, and of the ordinances enacted by any political subdivision within the court's territorial jurisdiction whenever certified copies of the ordinances have been filed with the clerk of that court.
      B. Other legal matters. (1) A court shall take judicial notice of the following if a party requests it and provides the court with the information needed by it to comply with the request, and may take judicial notice without request of a party of:
      (a) Proclamations of the President of the United States and the governor of this state.
      (b) Rules of boards, commissions, and agencies of this state that have been duly published and promulgated in the Louisiana Register.
      (c) Ordinances enacted by any political subdivision of the State of Louisiana.
      (d) Rules which govern the practice and procedure in a court of the United States or of any state, territory, or other jurisdiction of the United States, and which have been published in a form which makes them readily accessible.
      (e) Rules and decisions of boards, commissions, and agencies of the United States or of any state, territory, or other jurisdiction of the United States which have been duly published and promulgated and which have the effect of law within their respective jurisdictions.
      (f) Law of foreign countries, international law, and maritime law.
      (2) A party who requests that judicial notice be taken and the court, if notice is taken without request shall give reasonable notice during trial to all other parties.
      C. Information by court. The court may inform itself of any of the foregoing legal matters in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information.
      D. Time of taking notice. Judicial notice of the foregoing legal matters may be taken at any stage of the proceeding, provided that before taking judicial notice of a matter in its instructions to the jury, the court shall inform the parties before closing arguments begin.
      E. Question for court. The determination of the foregoing legal matters shall be made by the court.