author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Trudie M. WALKER.
    No. 2005-KA-0875.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2006.
    Charles Foti, Attorney General, Darryl W. Bubrig, Sr., District Attorney, Belle Chasse, Gilbert V. Andry IV, Assistant District Attorney, New Orleans, Counsel for Plaintiff/Appellee.
    Michael Clement, Indigent Defender Board, Belle Chase, Counsel for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS Jr., Judge EDWIN A. LOMBARD).'
   TERRI F. LOVE, Judge.

LTrudie Walker was charged with one count each of operating a vehicle while intoxicated, reckless operation of a vehicle, and speeding. At her arraignment, she plead not guilty to all counts. A trial was held wherein the State submitted the ease on the basis of the police report and a videotape. The trial court found her guilty as charged of the intoxication and speeding counts and not guilty of the reckless operation count. The trial judge sentenced Ms. Walker on the driving while intoxicated (“DWI”) to sixty days in parish prison, suspended, and placed her on two years inactive probation with various conditions, including a fine of $375.00. Additionally, the court sentenced her on the speeding count to serve twenty days in the parish prison or pay a fine of $75.00.

FACTS AND PROCEDURAL HISTORY

In the case at bar, no testimony was taken at trial; the State presented the police report and videotape made at the Belle Chasse Lockup. According to the police report, at approximately 6:45 a.m. on June 6, 2004, Deputy Donald Brown (“Deputy Brown”) of the Plaquemines Parish Sheriffs Office observed the defendant, Trudie Walker (“Ms. Walker”), driving at a high rate of speed on La. 23 at Oakville. The deputy clocked the defendant at 74 m.p.h. in a 55 m.p.h. zone. 13The deputy followed Ms. Walker for a mile before stopping her, and during this interval he observed her car partially straddle the median. He also witnessed Ms. Walker discard a liquid substance from the car as it was moving. Deputy Brown stopped Ms. Walker and requested her driver’s license, proof of insurance, and registration for her car. Ms. Walker promptly gave the deputy her license and proof of insurance, but she appeared unable to find the registration, even though it was sitting in her lap. Deputy Brown detected a strong odor of alcohol emanating from Ms. Walker, and he called for backup assistance. When Deputy Robert Cullum arrived, he too smelled alcohol emanating from Ms. Walker. The deputies asked Ms. Walker to exit her car, and when she did she stumbled a few steps.

The deputies asked Ms. Walker to take a field sobriety test, which she refused to take. The deputies then read Ms. Walker her rights and arrested her for DWI. The defendant was handcuffed and transported to the Belle Chasse Lockup. Once there, she was advised of her rights relating to a chemical test for intoxication and, again, asked to take a field sobriety test. She refused. She also refused to submit to a breathalyzer test.

The videotape began with Ms. Walker already seated at a table at the Belle Chasse Lockup. Soon thereafter, a deputy entered the room, and he advised Ms. Walker of her rights. During this advisement, Ms. Walker was slouching and rubbing her eyes, and at various times during the taping, she doubled over and put her head in her hands. A few times she also appeared to be leaning her head on the desk. The tape exhibits an upset Ms. Walker who broke into tears on several occasions. In response to the deputy’s question as to whether she had been | sdrinking, Ms. Walker shrugged her shoulders, but she did admit that she had come from the Bounty bar just prior to being stopped by the police. The tape also reflects that Ms. Walker constantly fidgeted while being questioned by the deputy. She refused to take both field sobriety tests and a breathalyzer test, and she was able to sign forms acknowledging that she had been advised of her right and had refused to submit to testing.

STANDARD OF REVIEW

In accordance with La.C.Cr.P. Art. 912.1 B(l), the defendant in the case, sub judice, has no right to appeal these convictions to this court, because they are all misdemeanors. However, she does have a right of judicial review by way of supervisory writs. La.C.Cr. P. Art. 912.1 C(l). This appeal is converted to a writ application for its consideration. State v. Landry, 01-0784 (La.App. 4 Cir. 12/12/01), 804 So.2d 791.

ASSIGNMENT OF ERROR, INSUFFICIENCY OF EVIDENCE

Although the trial court convicted her of both DWI and speeding, Ms. Walker asserts that the trial court erred in convicting her of DWI. Specifically, she contends that the State presented insufficient evidence to support her conviction of DWI. She argues that the videotape introduced at trial negates any finding that she was intoxicated at the time Deputy Brown stopped her.

In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a |4rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674 (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

See also State v. Sykes, 04-1199 (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

The defendant was charged with and convicted of driving while intoxicated in violation of La. R.S. 14:98. In order to sustain a conviction for this crime, the State must show that the defendant was operating a motor vehicle while under the influence of alcohol or drugs. Landry, 01-0784, pp. 4-5. 804 So.2d at 794. It is not necessary that the State present evidence of scientific testing or even field testing in order to prove that a defendant was intoxicated. As noted by this court in State v. Loisel, 01-2018, p. 5 (La.App. 4 Cir. 3/6/02), 812 So.2d 822, 825:

Some behavioral manifestations, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. State v. Hendon, 94-0516 (La.App. 1 Cir. 4/7/95), 654 So.2d 447, 449. Whether behavioral manifestations are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. State v. Bourgeois, 00-1585 (La.App. 5 Cir. 3/14/01), 785 So.2d 848, 853. Refusal to take the Intoxilyzer test is admissible as evidence of intoxication under La.R.S. 32:666. State v. Washington, 498 So.2d 136 (La.App. 5 Cir.1986). Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983). It is not necessary that a conviction of D.W.I. be based upon a blood or breath alcohol test, and the observations of an arresting officer may be sufficient to establish the defendant’s guilt. Id.

In support of her argument, the defendant quotes extensively from Loisel where, as here, the evidence introduced at trial consisted of a police report and videotape. In Loisel, the police stopped the defendant for blocking a lane. The report indicated that the officer smelled alcohol on the defendant’s breath, and the defendant’s balance was unsure and his speech was slurred. The report also | ¡¡indicated that the defendant had trouble performing an alphabet field test and refused to perform a walking test. In addition, the report indicated that the defendant admitted he had been drinking. The officers took the defendant to the police station, where he refused to take a breathalyzer test. The officers then booked him with DWI and careless operation of a vehicle. The videotape of the stop and arrest, however, showed that the defendant had no problem with the alphabet test the first time he was asked to perform it and only mixed up a few letters the second time. The tape also showed that the defendant had no trouble walking or standing, and it also showed he was able to retrieve papers from his car without any difficulty. There was no indication in the tape that the defendant’s speech was slurred, although his distance from the taping equipment made his speech somewhat indistinct. The defendant refused to perform a walking test. Although the trial court convicted him of DWI, on review this court reversed, finding that the videotape did not support the allegations in the police report and did not support a finding that the defendant was intoxicated.

In Loisel, this court discussed in some length State v. St. Amant, 504 So.2d 1094 (La.App. 5 Cir.1987); State v. Clark, 97-1064 (La.App. 3 Cir. 4/1/98), 711 So.2d 738; State v. Holley, 32,156 (La.App. 2 Cir. 8/18/99), 742 So.2d 636; and State v. Kent, 610 So.2d 265 (La.App. 5 Cir.1992). In St. Amant, the officers stopped the defendant on a harassment charge. When she exited her car, the officers noted that she was unsteady on her feet, appeared confused, and smelled of alcohol. The officers arrested the defendant for DWI and for harassment, and at the | ^police station the officers videotaped her performing field sobriety tests and a breathalyzer test.

The court convicted her of DWI. On appeal, the court threw out the results of the breathalyzer test because the State failed to show the procedures used in setting up the machinery and performing the test. The court also noted that the trial court, after looking at the videotape of the defendant’s performance on the field sobriety tests at the police station, found that the defendant’s demeanor and her performance on the field sobriety tests did not show that she was intoxicated, a conclusion with which the appellate court agreed. The Fifth Circuit reversed the defendant’s conviction.

Likewise, in Kent, only the arresting officer and the defendant testified at trial. The officer stated that the defendant passed him on the Interstate 10, speeding and with his lights off. The officer activated his lights, and the defendant pulled to the side of the road immediately. The officer testified that the defendant had trouble getting out of his truck, walking back to the police car, and producing his license. The officer also testified that the defendant had a “moderate” odor of alcohol on his breath, bloodshot eyes, and unclear speech. The officer conducted field sobriety tests wherein the defendant skipped a letter in the alphabet test, counted backwards farther than requested, and touched his upper lip rather than the tip of his nose as requested. The defendant refused to perform the test where he stood on only one leg. The officer arrested the defendant for DWI and transported him to the police station. The defendant refused to perform a breathalyzer test, but he volunteered to take a blood test, and this request was refused. By contrast, the defendant testified that he was not speeding and had his lights on when he passed the officer’s vehicle. The defendant denied having any difficulty moving or [7speaking. He also testified that he refused to take the breathalyzer test because these tests are sometimes inaccurate, and instead he offered to take a blood test. Although the court convicted him of DWI, the appellate court reversed, finding that the defendant’s initial actions were just as consistent with nervousness as with intoxication. The court also found that the defendant’s performance on the field sobriety tests was not bad, and it further noted that the defendant immediately stopped after the officer activated his lights.

The appellate court also reversed the defendant’s DWI conviction in State v. Sampia, 96,1460 (La.App. 1 Cir. 6/20/97), 696 So.2d 618. The defendant was involved in a one-car accident wherein her car ended up in a ditch. Some hours after the accident, an officer arrived on the scene and saw the car, which the defendant had vacated. He also noticed empty beer cans in the back of the car and an alcohol odor in the car. The defendant soon returned, accompanied by a tow truck. The defendant was crying but was cooperative with the officer, telling him that the car went into the ditch when she swerved to avoid an eighteen-wheeler which had crossed the center line into her path. At trial, the officer testified that the defendant had alcohol on her breath, slurred her words, and was swaying slightly. He also testified that she admitted having consumed a few drinks, which she denied at trial. He testified that she refused to perform any field sobriety tests, and he arrested her for DWI. At that point, she volunteered to take the tests, but he told her it was too late. At the police station, the defendant refused to perform a breathalyzer test. The defendant testified that she had had one beer approximately five hours before she came into contact with the officer and an hour before the accident. She reiterated that her car left the road as she was trying to avoid hitting the truck, which swerved into her lane of traffic. She testified that she remained at | sthe scene of the accident for approximately an hour before someone came by and offered to assist her. At that point, she called the police and went back to her apartment to arrange for a tow truck to retrieve her car. It was only after returning to the scene of the crime that she encountered the officer. She also explained that the empty beer cans in the back of her car were from her boyfriend’s use the night before the accident. On review, the court reversed the defendant’s conviction, noting that there was nothing in the officer’s testimony to refute the defendant’s claim that the accident occurred up to four hours before the officer observed the defendant. The court found that the officer’s general descriptions of the defendant’s demeanor did not support a finding that she was intoxicated, and the fact that she was upset when she encountered him (he testified she was crying) could have affected her speech. The court stated that the officer’s testimony did not support a finding that the defendant had any physical attributes of intoxication, which would have rejected the defendant’s hypothesis of innocence.

By contrast, in both Clark and Holley, the court found that the evidence was sufficient to support the defendants’ DWI convictions. In Clark, the officer was on the scene of an unrelated call when he observed the defendant park and exit his vehicle. The defendant was stumbling and staggering, and when the officer approached the defendant, he noticed a strong odor of alcohol emanating from the defendant. In addition, the defendant’s eyes were bloodshot and he was slurring his words. The officer arrested him and took him to the police station. Once there, the defendant continued slurring his words and staggering, actually falling against a wall at some point. He refused to perform any field sobriety tests or a breathalyzer test. There was also evidence that an open beer was found inside the defendant’s truck. On review, the court affirmed the defendant’s DWI conviction.

[nIn Holley, the defendant was involved in an accident when he pulled in front of another car. The officer, who arrived on the scene of the accident soon after it occurred, saw that the defendant was unsteady as he exited his van. In addition, the defendant had a strong alcohol odor and bloodshot eyes, he swayed while being questioned, he slurred his speech, and he answered the officer’s questions slowly and deliberately. He failed both the alphabet test and a horizontal gaze nystagmus test. The officer arrested the defendant. A videotape of the defendant’s demeanor at the police station showed that he had trouble with a second alphabet test and refused to perform any more tests. He also continued to sway, and he admitted that he had consumed two sixteen-ounce beers. The court upheld the defendant’s DWI conviction.

This court upheld the defendant’s conviction in Landry. The officer stopped the defendant because he was not wearing his seat belt, and the officer discovered that the inspection sticker on the defendant’s vehicle had expired. When the defendant exited his car at the officer’s request, the officer noticed a “moderate odor of unknown alcoholic beverage” emanating from the defendant. The defendant then performed a few field sobriety tests, all the while denying that he had- consumed any alcohol. The defendant also declined to submit to a breathalyzer test. On review, this court affirmed the defendant’s conviction, noting that defendant performed poorly on the field sobriety tests even though the officer first demonstrated them to the defendant. This court noted that the trial court apparently found the officer’s account of the stop and arrest more credible than that of the defendant.

|inHere,. as in Loisel, the State introduced both the police report and a videotape. Unlike Loisel, however, here the tape does not discredit the information in the police report concerning the defendant’s state of intoxication. The tape does not establish that Ms. Walker was intoxicated once she arrived at Belle Chasse Lockup. Her words are inaudible on the tape, so it is unclear whether she was slurring her words at the time. The tape showed that she slouched during the interview, and she constantly fidgeted. The tape by itself would not prove that Ms. Walker was intoxicated at the time. However, the State also introduced the police report, wherein the deputy reported that he saw Ms. Walker cross the centerline and throw a liquid from the car before she was stopped. He also indicated that Ms. Walker had a strong odor of alcohol about her and had trouble finding her car s registration, which was sitting in her lap at the time. The report indicates that Ms. Walker stumbled a little when she exited her car. Unlike in Loisel and St Amant, Ms. Walker refused to take a field sobriety test either on the scene or at the lockup. Thus, there is no videotape to dispute the deputy’s assertions that Ms. Walker was intoxicated at the time of the offense. Although the videotape does not prove Ms. Walker was intoxicated, it also does not contradict the information in the police report, which showed that Ms. Walker’s car weaved over the center line or that Ms. Walker threw a liquid out of the car, smelled of alcohol, slurred her words, and stumbled when she got out of her car. Viewing the evidence in the light most favorable to the prosecution, the trial court was presented with sufficient evidence to find that Ms. Walker was intoxicated while operating her car. This claim has no merit.

| ^DECREE

For the reasons outlined above, this appeal is converted to a writ, writ is granted, and relief denied.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED.

      . Unfortunately, the audio portion of the tape is not very good; apparently Ms. Walker was not close to the microphone (wherever it was placed), and her statements are inaudible.

      . Writ granted and remanded on other grounds, 98-1180 (La.9/25/98), 726 So.2d 2.

      . In various other cases the courts upheld the defendant's conviction based upon credibility determinations by the trial court in the face of conflicting testimony as to whether the defendant was intoxicated. See State v. Bourgeois, 00-1585 (La.App. 5 Cir. 3/14/01), 785 So.2d 848; State v. Worachek, 98 2556 (La.App. 1 Cir. 11/15/99), 743 So.2d 1269; State v. Minnifield, 31,527 (La.App. 2 Cir. 1/20/99), 727 So.2d 1207; State v. Hendon, 94 0516 (La.App. 1 Cir. 4/7/95), 654 So.2d 447; and State v. Smith, 93 1490 (La.App. 1 Cir. 6/24/94), 638 So.2d 1212.


source: Caselaw Access Project

author: MAX N. TOBIAS, Jr., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Darnell LEWIS.
    No. 2005-KA-1220.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2006.

      Eddie J. Jordan, Jr., District Attorney, Val M. Solino, Assistant District Attorney, New Orleans, Counsel for Plaintiff/Appellant, State of Louisiana.
    M. Richard Schroeder, Pauline F. Hardin, Tara G. Richard, Jones Walker Wae-chter Poitevent Carrere & Denegre, New Orleans, Counsel for Defendant/Appellee, Darnell Lewis.
    (Court Composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., and Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, Jr., Judge.

hOn 29 July 2004, the defendant, Darnell Lewis (“Lewis”), was charged by indictment with: three counts of aggravated rape, violations of La. R.S. 14:42; three counts of aggravated crime against nature, violations of La. R.S. 14:89.1; and three counts of aggravated burglary, violations of La. R.S. 14:60. Two counts of each of the crimes involved one victim. On 3 September 2004, he pleaded not guilty. On 22 February 2005, the state amended two counts of aggravated rape to forcible rape and nolle prosequied the third count of aggravated rape and the rest of the charges. The defendant pleaded guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to two counts of forcible rape. He waived delays and was sentenced on each count to twenty years at hard labor with credit for time served; the first two years were to be served without benefit of probation, parole, or suspension of sentence, and the sentences were to run | ¡.concurrently.

According to the plea bargain agreement handwritten on the back of the waiver of rights form, it was agreed that the sentence would be twenty years on each count to run concurrently; that Lewis would be given credit for time served from 19 February 1991; that there would be no multiple bill or other sentence enhancements; that all other charges would be refused; and that all other counts in the action would be dismissed. The state stipulated and warranted in consideration for the plea that there were no charges pending or contemplated for any crime in Orleans Parish, known or unknown, allegedly occurring before 22 February 2005. The state further stipulated that Lewis would not make the plea voluntarily unless the state granted him immunity from any other charges, known or unknown, that are based on acts occurring before 22 February 2005.

The 19 April 2005 minute entry indicates that the state appeared and argued that Lewis was not entitled to good time credit pursuant to La. R.S. 15:571.3. On 9 May 2005, the state filed a multiple bill. On 19 May 2005, Lewis filed a motion to quash the multiple bill. On 2 June 2005, the trial court granted the motion and quashed the multiple bill. The state appealed. The notice of appeal in case number 450-673 was signed 8 June 2005, setting a return date of 2 July 2005.

13Lewis pleaded guilty to two counts of forcible rape; therefore, the facts are not known. According to the state, DNA tests on “cold cases” identified Lewis as the possible perpetrator in the rapes of two women in the 1980s, and he was charged by indictment with three counts of aggravated rape, three counts of aggravated crime against nature, and three counts of aggravated burglary.

ERRORS PATENT

Because this is an appeal by the state, no review of the record for errors patent is necessary.

ASSIGNMENT OF ERROR NUMBER 1

The state argues that the trial court erred by quashing the multiple bill because it was entitled to specific performance of the terms of the negotiated plea. According to the state, on the morning of trial in case number 430-648, the case with similar charges where Lewis was granted a new trial and the charges were nolle prose-quied and reinstituted, it inquired about the availability of a plea, and Lewis expressed interest. The state claims that it offered a twenty-five year sentence (which it thought would keep the defendant in prison until he was sixty) in exchange for reducing the aggravated rape counts to forcible rape, including the aggravated rape charges in case number 450-673. The defense countered that Lewis would not agree unless the sentence was twenty years and he would be out of jail by the age of fifty-five. The state agreed. Then Lewis listed other | conditions, which were placed on the waiver of rights form. The state alleges that “good time” was never discussed, and the state thought, as well as the trial court, that the defendant would serve the twenty years pursuant to La. R.S. 15:571.3(D). The state points out that there is no reference to “good time” during the guilty plea proceeding and sentencing. The state alleges that afterward it learned that defense counsel had included the possibility of good time in the discussions with Lewis, who viewed the twenty years as a ceiling.

According to the state, in April 2005 it was informed by the Department of Corrections (“DOC”) that Lewis was eligible for good time benefits. The state then filed a multiple bill in order to enforce the plea agreement that Lewis serve an additional six years (in addition to the fourteen he had served), but the trial court granted his motion to quash it. The state claims that the DOC would not apply the current version of La. R.S. 15:571.3(D), which prohibits good time benefits due to Lewis’ prior conviction for a crime of violence, because of ex post facto considerations (applying a version of the statute not in effect at the time the defendant committed the offenses). The state cites La. C.C. art. 1949 and argues that its consent to the agreement or contract was vitiated by an error concerning a cause without which the obligation would not have been incurred, and that cause was known or should have been known to defense counsel. Therefore, the state claims that Lewis should be compelled to serve the full twenty-year sentence, and the state should be allowed to compel specific performance by filing a multiple bill to block his early release due to good time credits.

| ¡According to the hearing transcript, on 22 February 2005 the trial court went through the Boykin rights and set out that Lewis was pleading guilty because it was in his best interest. The court went through the requirement of blood and saliva testing and sex offender registration. The court then read the plea bargain agreement from the back of the waiver of rights form, which included a statement that there would be no multiple bill or other sentence enhancements. The trial court then sentenced Lewis to twenty years, to run concurrently with any and all sentences he might be serving, with credit for time served.

According to the 2 June 2005 transcript, at the hearing on the motion to quash, defense counsel stated to the court: “The agreement between the parties, and there was an agreement was [sic] that Mr. Lewis would get a 20-year sentence and spend no more than twenty years. That was a maximum; that was a ceiling to what would happen.” The trial court declared: “Right. That was my understanding.” Defense counsel stated: “It was not a floor. There was no request by the DA’s Office for — and I don’t even think it’s legally possible-for the Court to say that he could not get good time. In fact we cite several cases that good time is up to the Department of Correction.” Defense counsel said that it is a public policy decision that the DOC has the ability to award good time in order to maintain discipline inside the prison system. Counsel noted that there had been a conversation among the attorneys involved in the case during which “the sentiment was that no one knew whether or not he would be eligible for certain as to god [sic] time; [sic] but we certainly knew the possibility existed.” Counsel said that it was inaccurate for the state to say that a flat sentence was part of the negotiations. The trial court then stated: “That’s what I expected though, | fifrankly, Mr. Schroeder. [sic] expected that it would be 20 years and that he would be [sic] 20 years.”

The court went on to note that the argument at the hearing was altogether different. Defense counsel stated that he understood that the reason for the hearing was the fact that the prosecutors who negotiated the plea “may have been under the mistaken impression as to the law that he would be eligible for god [sic] time.” Counsel argued that he was going to trial the day that the plea bargain was negotiated. He had not been armed with research on good time rules. Counsel said that the state apparently knew that Lewis would not serve the entire twenty years because the state insisted that the sentence include that the first two years would be served without benefit of probation, parole, and suspension of sentence. Counsel argued that perhaps disgruntled victims or issues in the District Attorney’s Office precipitated the state’s attempt to revisit the 22 February 2005 plea bargain agreement. Counsel stated that he and the prosecutors spent half a day to make sure that the agreement was clear and unambiguous and then read the agreement into the record. Defense counsel argued that the state had thirty days under La. C.Cr.P. art. 881.1 to revisit the sentencing. Counsel also said that the state had not contradicted his argument that a unilateral mistake as to the law did not vitiate consent. Counsel stated that the court correctly quashed, the multiple bill.

The trial court asked the state if Mr. Goines of the DOC had been contacted again after his initial statement that Lewis was eligible for good time. The court noted that it thought that Lewis had a prior conviction that would have flattened out his time. The state said that Mr. Goines had called the day before and once again stated that under the DOC’s interpretation Lewis was eligible for good time, and that was the final interpretation. The 17court noted that Mr. Goines had been in error many times before, but the state countered that it had no recourse for this error. The trial court then stated that it had to quash the multiple bill.

The prosecutor argued that during the plea negotiations defense counsel never directly or indirectly communicated to him that there was the possibility of good time. The negotiations centered on whether Lewis would be released at fifty-five or sixty years of age. The prosecutor declared that he never indicated to anyone that good time was available because the statutes on their face indicated that no good time was available. Once again the court declared that the DOC appeared to be wrong, but the state noted that its only vehicle was the filing of the multiple bill so that Lewis would be sentenced as a multiple offender. The court responded: “I don’t think I can do that. I don’t think I can do that.” The state asked that it be allowed to finish its argument.

The prosecutor noted that consent is necessary for a valid contract, and problems with plea bargain agreements are litigated as contracts. The state argued that an error of fact or law could vitiate consent. The prosecutor contended that “the only reason we entered into this deal, this plea agreement was for Mr. Lewis to remain incarcerated an additional six years till [sic] approximately 55 years of age which would be the 20year [sic] sentence.” The prosecutor argued that a mistake of fact or law could vitiate consent if the other side had a reason to believe that there may in fact be an error. The state contended that if defense counsel was discussing the possibility of parole with the defendant as part of the plea negotiations, then that was a bargaining chip of which the state was not informed. The state argued that defense counsel had an obligation to. tell the prosecutor and the | scourt. The court interrupted and noted that the law firm of Jones, Walker conducts negotiations all the time.

The state began to say again that Lewis was expected to serve the entire sentence. The court noted that it had expected it to be a twenty-year sentence. The state indicated that it had made concessions in the case in order to require Lewis to serve six more years. The state argued that if he was to serve less than six years, “that should have been something that should have been disclosed, and we could have done whatever we could have done to confirm it.” The trial court stated: “I don’t think they had a responsibility to disclosed [sic] that even if they thought that, and even if they discussed that with their client, Val. [sic] I don’t think they had an obligation to deal with that.” The prosecutor noted that he was not alone during the negotiations; another prosecutor was also present. He stated:

We wish we could claim to be so smart as to know how the DOC was going to interpret good time. We had no idea. We were uncertain about it. We only knew that we were getting for Mr. Lewis what we put in that plea agreement was maximum and yes, he could possibly get out early. It could be via parole, it could be via good time. It could be via a change in the good time law that occurs 2 months after, way after the settlement agreement. We had no idea. We were insuring a maximum of—

The court interrupted: “When Act 138 was enacted, I mean it became immediately....” Defense counsel argued that the law was clear under State v. Gauthe, 98-1995 (La.12/18/98), 731 So.2d 273, that even if counsel had known, it was not counsel’s responsibility to tell the state or the court. Defense counsel argued that even if the prosecutor mistakenly believed that good time would not apply to the defendant, that unilateral mistake of the law did not vitiate consent. Counsel noted that the agreement that there Lwould be no multiple bill was read by the court into the record. The state argued that the only consideration for the agreement was that Lewis would serve six more years until he was fifty-five years of age. The state argued that defense counsel was obligated to tell the state that he did not think that Lewis would have to serve the six years. The trial court again stated that it did not think that defense counsel had such an obligation, and quashed the multiple bill.

Defense counsel noted that during the negotiations he had always said that his client would not agree to serve more than twenty years (that was a ceiling), and his uncertainty as to the applicability of good time was honestly communicated to the state. The trial court again stated that it thought that Mr. Goines at the DOC was wrong and that Lewis’ time should be flat time. Defense counsel then stated that after researching the issue after the guilty plea and sentencing, the defense concluded that the DOC’s assessment was correct, and Lewis was eligible for good time.

The hand-written agreement on the back of the waiver of rights form provided: “20 years concurrent on each count; credit for time served fm: Feb. 19, 1991; no multiple bill or other sentence enhancements; all other pending charges refused; all other counts in this action dismissed.”

In determining the validity of plea bargain agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant’s constitutional right to fairness may be broader than his or her rights under contract law. State v. Givens, 99-3518, p. 14 (La.1/17/01), 776 So.2d 443, 455; State v. Louis, 94-0761, p. 7 (La.11/30/94), 645 So.2d 1144, 1148, citing State v. Nall, 379 So.2d 731 (La.1980). A plea bargain agreement requires the consent of the state and|10the defendant. Error, fraud, or duress may vitiate consent. La. C.C. art. 1948; State v. Wolfe, 99-0389 (La.App. 4 Cir. 4/19/00), 761 So.2d 596, 599, citing State v. Lewis, 539 So.2d 1199, 1204 (La.1989). Error vitiates consent when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949; State v. Monroe, 99-1483, p. 5 (La.App. 4 Cir. 3/22/00), 757 So.2d 895, 898.

Although the state argues that it agreed to significant concessions in the plea bargain in exchange for Lewis to serve an additional six years for a total of twenty years, it provides no documentation to support that claim. Defense counsel claims that the state entered into the plea agreement because the trial court denied its motion for a continuance and a witness was unavailable. In fact in its brief the state concedes that several days before the second trial, one of the two victims, who resided out of state, informed the prosecutor that she refused to appear for trial; therefore it inquired as to whether the defendant was interested in a plea bargain. The state argues that Lewis’ failure to serve the entirety of the twenty-year sentence constitutes a breach of the plea bargain, but it cannot now show where the defendant agreed to serve the full twenty-year sentence. Although the state claims that it seeks specific performance of the negotiated deal by filing a multiple bill, it did not seek to reform the agreement or to clarify the agreement and the sentence within thirty days of the sentencing. Although the agreement was very detailed, it did not mention “good time” or the ineligibility for “good time” credit, but the state claims good time eligibility was a crucial part of the plea. The plea bargain clearly indicated that the state agreed not to multiple bill the defendant.

InDefense counsel argues that the state’s unilateral mistake as to the law does not vitiate consent under La. C.C. art. 1950. Citing State v. Gauthe, supra, counsel quotes the Louisiana Supreme Court’s pronouncement that “no provision of law requires either the court or defendant to inform the state of the existence and nature of statutes on early release ....” In Gauthe the Court also noted that no ambiguity exists in the plea colloquy and no extrinsic evidence was required for its interpretation, concluded that the state had not made a showing to justify disturbing the finality of the convictions, and ordered the district court to dismiss the state’s motion for revocation or reformation of the guilty plea. Here the state did not use such a motion, but instead filed a multiple bill to prevent Lewis from being released before serving twenty years. Yet its arguments relate to the reformation of the plea bargain agreement.

The state argues that the prosecutor believed that Lewis was not eligible for good time, and that belief was based on the current version of La. R.S. 15:571.3(D), which provides: “Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if the instant offense is a second offense crime of violence as defined by R.S. 14:2(13).” The state notes that its reliance on that version was misplaced because the DOC has determined that the current statute, which would deny Lewis good time eligibility, was not in effect at the time of the offense and would be an ex post facto application of the law. The state contends that the prosecutor’s consent was vitiated by that error, which concerned a cause without which the obligation would not have been incurred, and that cause was known to defense counsel, who discussed with | iathe defendant the possibility of good time release. At the hearing on the motion to quash the multiple bill, defense counsel told the trial court that there had been a conversation involving the attorneys on the case, and no one knew whether Lewis would be eligible for good time, but counsel felt that there was a possibility of good time. Counsel told the court that he had not researched the law pertaining to good time eligibility before the scheduled trial date when the plea bargain was negotiated, and he did not know whether Lewis would be eligible to earn good time. Even if state error existed as to good time eligibility, the error did not vitiate its consent to the plea bargain. According to the plea bargain, the state agreed not to multiple bill the defendant.

Therefore, we conclude the trial court properly granted Lewis motion to quash the multiple bill.

CONCLUSION

The trial court’s ruling granting Lewis’ motion to quash the multiple bill is affirmed.

AFFIRMED.

      . According to the guilty plea and sentencing minute entry in case number 450-673, the state amended counts 1 and 2 of the indictment from aggravate rape to forcible rape and nolle prosequied the third count of aggravated rape. Lewis then pleaded guilty to amended counts 1 and 2. However, he was charged with aggravated rape in counts 1, 4, and 7, and the indictment indicates that the state amended all three counts, and the prosecutor did not write nolle prosequi on the third count of aggravated rape. Nonetheless, the 22 February 2005 guilty plea and sentencing transcript indicates that Lewis pleaded guilty to two counts of forcible rape, and the state agreed that all other counts in the case would be dismissed and all other pending charges would be refused.

      . The notice of appeal listed case numbers 430-648 and 450-673, and Lewis pleaded guilty in both cases on 22 February 2005; however, the record in case number 430-648 has not yet been lodged in this court. In its brief the state noted that it had received only the record in 450-673, but the appeal related to case number 430-648 as well. The state also noted that defense counsel's 22 April 2005 letter was not contained in the appellate record, and it said that it would move to supplement the record with that letter. As of this date, the only record lodged relates to case number 450-673, and the state has not filed a motion to supplement the record. Case number 430-648 was the re-institution of case number 349-812 charging two counts of aggravated rape, two counts of aggravated burglary, and one count of aggravated crime against nature. After trial, Lewis was convicted and sentenced. His conviction and sentence was affirmed. State v. Lewis, 97-2854 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004, writ denied, 99-2694 (La.3/17/00), 756 So.2d 325. However, in 2001 the trial court granted Lewis a new trial. The state nolle prosequied the charges and reinstituted them in case number 430-648. On 22 February 2005 Lewis pleaded guilty to two counts of amended charges of forcible rape, and the other charges were nolle prosequied. The trial court stayed any action for Lewis' release during the appeal, and he objected to the stay order and filed a writ application in this court in case number 430-648. This court granted the writ and reversed the trial court’s ruling granting a stay of Lewis' release pending the state’s appeal. State v. Lewis, 2005-K-1046, unpub. (La.App. 4 Cir. 12/5/05).

      . According to the transcript, the case is "Gote

      . In its brief the state refers to a 22 April 2005 letter by defense counsel, who conceded that he had such discussions with Lewis. However, the state noted that the letter was not part of the appellate record, and it has not filed a motion to supplement the record with the letter. The state did not attach a copy to its brief. Therefore, this court cannot consider it.


author: ROLAND L. BELSOME, Judge.

text:
    FQCPRQ, et al. v. BRANDON INVESTMENTS, L.L.C., MKDB, Inc., and Kerry Brandon.
    No. 2005-CA-0793.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2006.

      David S. Maldow, Stuart H. Smith, Smith Stag, L.L.C., Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, Counsel for Plaintiff/Appellant.
    Fred L. Herman, Thomas J. Barbera, Daniel W. Nodurft, Law Offices of Fred L. Herman, New Orleans, Counsel for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO Jr., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

liTwo organizations of concerned French Quarter residents and business owners appeal the trial court’s denial of their Motion for a Preliminary Injunction seeking to enjoin Defendants/Appellees from operating a French Quarter property as a transient-rental/guest house in an area zoned for residential housing because the property allegedly lost its exception of nonconforming use.

STATEMENT OF THE CASE

The Louisiana Supreme Court has described a nonconforming use as:

[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated...

Redfearn v. Creppel, 455 So.2d 1356, 1358 (La.1984); See Craig v. City of New Orleans Board of Zoning Adjustments, 2004-1709 (La.App. 4 Cir. 5/4/05); 903 So.2d 530.

Black’s Law Dictionary also defines nonconforming use as “[ljand use that is impermissible under current zoning restrictions but that is allowed because the use existed lawfully before the restrictions took effect.” Black’s Law Dictionary 1577 (Bryan A. Garner ed., 8th ed., Thomson West, 2004).

l2The Supreme Court has explained that the “permitted continuation of a nonconforming use is designed to avoid the hardship, injustice and doubtful constitutionality of compelling the immediate removal of objectionable buildings and uses already in the area.” Redfearn at 1358-59.

The nonconforming use at issue is located at 517 Dumaine Street (517 Dumaine), which has been operating with a legal nonconforming use as a “transient rental” property in an area that is now zoned for historic residential use. The guest house has always operated under valid Occupational Licenses issued by the City of New Orleans (“the City”). Brandon Investments purchased the property in June of 2001, and in 2002 sought to perform renovations to the property, and it sought and received all of the necessary City approvals to perform the renovations and maintain their nonconforming use status.

Appellants, the Vieux Carre Property Owners, Residents and Associates, Inc., and the French Quarter Citizens for the Preservation of Residential Quality, Inc., are neighborhood groups dedicated to the preservation of the Vieux Carre. Over the last few years, Appellants observed construction occurring at 517 Dumaine. Citizens reviewed two public documents concerning the property and determined that the hotel had lost its nonconforming status due to the construction. Specifically, they alleged that a document sent to a City Building Inspector by Appellees’ contractor showed that 517 Dumaine was not operating as a hotel during the construction period and therefore has lost its nonconforming status because it was continuously vacant for over six months. Appellants also contended that blueprints submitted to the City by Appellees showed that Ap-pellees made structural alterations to the property which caused it to lose its nonconforming status. Appellants then filed suit seeking to enjoin Appellees from operating their lahotel, and also filed a Motion for a Preliminary Injunction. The trial court denied the Motion for Preliminary Injunction.

The denial or dissolution of a Preliminary Injunction should not be overturned on appeal absent a clear abuse of the trial court’s great discretion. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 2000-1146, p. 3 (La.App. 4 Cir. 10/3/01); 798 So.2d 1167, 1171. See HCNO Services, Inc. v. Secure Computing Systems, Inc., 96-1693 (La.App. 4 Cir. 4/23/97); 693 So.2d 835.

Appellants assert two assignments of error. First, they argue that the trial court failed to address the law regarding nonconforming use, as it applies to the facts in this case. Second, they argue that the trial court failed to apply the correct standard of review regarding nonconforming use.

LAW AND ANALYSIS

Appellants claim that they presented evidence that there had been a six-month break in the nonconforming use of 517 Dumaine. The Comprehensive Zoning Ordinance of the City of New Orleans’s article on nonconforming uses provides that:

No nonconforming building or portion thereof, or land used in whole or in part for nonconforming purposes, which hereafter becomes and remains vacant for a continuous period of six (6) calendar months shall again be used except in conformity with the regulations of the district in which such building or land is situated. The intent of the owner or other person to use a building or land for nonconforming purposes shall not be determinative of whether such building or land was vacant.

Comprehensive Zoning Ordinance of the City of New Orleans, Article 13, Section 13.2.1 (emphasis added). Thus a nonconforming use must be continuous, and a break in the nonconforming activity of over six months will result in a loss of any | ¿nonconforming status. Dolsen v. City of New Orleans, 544 So.2d 1256, 1257 (La.App. 4 Cir. 5/25/89); Jones v. Cusimano, 524 So.2d 172, 173 (La.App. 4 Cir. 4/12/88).

At the hearing, Appellants presented a document sent to the City Building Inspector by defendant’s contractor which allegedly proved that 517 Dumaine was not operating as a hotel during the construction period. They further alleged that the document showed that a number of reservations were cancelled due to the construction, and that the premises were not safe to accommodate guests due to the construction. Appellants acknowledge that two guests did stay at the hotel between February 2004 and July 2004, but they allege that those guests were personal contacts of the Appellees.

Upon examination of the document submitted to the City Building Inspector, we note that it was entitled “Additional Information as you requested concerning 517— Guest Stay thru Last Few Months (sic).” The words “additional information” imply to us that this document is not a conclusive record of all the guests that stayed in the hotel. Additionally, the document appears to represent that guests stayed at the hotel three times between March 7, 2004, and July 5, 2004.

Furthermore, Appellees submitted affidavits from several guests establishing that they had stayed in the hotel during the construction period and that there had never been a six month period of vacancy. Appellees also submitted affidavits from Kerry Brandon, the owner of Brandon Investments, Inc. and sole shareholder of MKDB, Inc. stating that the hotel was never vacant for a continuous six month period, and that during the renovations an office manager managed hotel operations, including receiving and confirming reservations, paying utility bills and |Bother duties. The trial court’s great discretion to deny or grant a motion for a preliminary injunction extends to findings based on purely documentary evidence. Virgil v. American Guarantee & Liab. Ins. Co., 507 So.2d 825 (La.1987) (Dennis, J. concurring). We cannot say that it was manifestly erroneous for the trial court to find that the affidavits submitted by Appellees had more evidentiary value than the “additional information” document submitted by the Appellants.

Appellants also allege that Appel-lees made structural alterations to 517 Du-maine that have caused the property to lose its nonconforming status. The Comprehensive Zoning Ordinance provides:

No building or land shall hereafter be used, and no building or part thereof shall be erected, reconstructed, converted, moved or structurally altered unless in conformity with regulations as set forth in this Ordinance, except as hereinafter provided.

Comprehensive Zoning Ordinance of the City of New Orleans, Article 13, Section 13.1.1 (emphasis added).

Appellants point to the Architect’s Plans for 517 Dumaine which were submitted to the City. The plans propose installing new doors and transoms to be placed in an existing masonry wall, pouring concrete walls into an area where brick is to be removed, and installing condensing units to the outside of the building. Appellants claim that these changes constitute “structural changes” under the Comprehensive Zoning Ordinance’s definition.

Appellees submitted the affidavit of Dalton Hithe, Jr., the contractor who performed the work. Mr. Hithe testified that “the renovations were not ‘structural changes.” ’ Appellees also argue that Appellants improperly rely upon the proposed plans instead of the “as-built plans,” which show that the skylights were ultimately not installed and other suggested changes were not made. Appellees | ^urge that the Appellants failed to produce any testimony or evidence that structural changes were actually made to the property. We agree. Proposed plans for construction that has already been completed is not enough evidence to justify a Preliminary Injunction. Appellants may ultimately be successful at the trial on the merits; however, we find it was not manifest error for the trial court to find that the Appellants’ failure to put on any evidence or testimony that actual structural changes occurred did not support a Preliminary Injunction.

Finally, Appellants also contend that the trial court did not use the proper level of scrutiny. In Redfeam v. Creppel, supra, the Supreme Court wrote:

The purpose of zoning ordinances is to confine certain classes of buildings and uses to certain localities... Because a nonconforming use is inconsistent with this objective, it should, consistently with the property rights of the individuals affected and substantial justice, be viewed narrowly and have all doubts resolved against continuation or expansion of the nonconformity.

Redfearn at 1359 (emphasis added). Thus, a party claiming that a particular use has a nonconforming use exception is subject to a narrow review by the courts; however, courts should employ this scrutiny consistent with “the property rights 'of the individuals affected and substantial justice.” We read “individuals affected” to include both the defendant and the plaintiff, and “substantial justice” to apply to all parties.

We also note that the Redfeam case was an appeal from a trial for a permanent injunction, not a preliminary injunction. This high standard of review must also be consistent with the principles governing preliminary injunctions.

• The hearing is held on short notice — An application for a Preliminary Injunction shall be assigned for hearing within ten days of service of the notice. La.Code Civ. P. art. 3602.
17* It is only a temporary disposition of the action — a writ of Preliminary Injunction is essentially an interlocutory order issued in a summary proceeding incidental to the main demand for permanent injunctive relief. Bank One, Nat’l Assoc. v. Velten, 2004-2001, p. 5 (La.App. 4 Cir. 8/17/05); 917 So.2d 454, at 458.
• It is designed to preserve the status quo — It is designed to and serves the purpose of preventing irreparable harm by preserving the status quo between the parties pending a determination on the merits of the controversy. Bank One, supra.
• The trial court has great discretion to grant or deny a preliminary injunction — In reviewing whether the trial court erred in granting or denying a preliminary injunction, the appellate court must be mindful that a trial court has great discretion to grant or deny the relief requested. Sessions, Fishman & Nathan, L.L.P. v. Salas, 2004-1790, p. 5 (La.App. 4 Cir. 5/25/05); 905 So.2d 373, 377.
• An appellate court reviewing the disposition of a motion for preliminary injunction looks for an abuse of that discretion — Because a preliminary injunction is an interlocutory procedural device, we will disturb the finding of the trial court only upon a showing of abuse of its great discretion. Sessions, Fishman & Nathan, L.L.P. v. Salas, 2004-1790, p. 6 (La.App. 4 Cir. 5/25/05); 905 So.2d 373, 377; LHO New Orleans LM, L.P., v. MHI Leasco New Orleans, Inc., 02-0663, p. 3 (La.App. 4 Cir. 11/20/02), 833 So.2d 1010, 1012 (citing A to Z Paper Co., Inc. v. Carlo Ditta, Inc., 98-1417, pp. 8-9 (La.App. 4 Cir. 9/9/98); 720 So.2d 703, 708).

The status quo in this case is allowing a nonconforming use to continue for a few more months before a trial on the merits is held. Appellees and their predecessors in right have operated 517 Dumaine as a hotel since before the enactment of the Comprehensive Zoning Act in 1982. Neither party is put in a worse position by denying the motion for a preliminary injunction. Everything is the same as before the motion was filed.

In light of one of the purposes of the preliminary injunction — preserving the status quo — and the great discretion a trial court has in granting or denying the motion, we believe that the trial court was not manifestly erroneous in denying the motion for preliminary injunction.

The trial court’s decision is also consistent with Redfeam. Appellees addressed the doubts about the continuation of the nonconforming use through affidavits and other evidence, and the trial court made a decision that was consistent with the property rights of both parties, and was substantially just.

We recognize that the denial of a Preliminary Injunction does not conclude the proceedings, which may proceed to trial on the Permanent Injunction. However, the trial court’s denial of the Motion for Preliminary Injunction was not manifestly erroneous.

CONCLUSION

Based on the foregoing reasons, the denial of Appellants’ motion for preliminary injunction is affirmed.

AFFIRMED.

LOVE and CANNIZZARO, JJ., concur in the result.

      . This language on maintaining the status quo as a requisite for the grant of a preliminary injunction is not absolute. Clearly, if Party A began an illegal activity which was causing irreparable harm to Party B, Party B would not be denied a preliminary injunction merely because the status quo was now Party A causing Party B irreparable harm.


author:
LEON A. CANNIZZARO, Jr., Judge.
      LOVE, J.,

text:
    Floyd JACKSON v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2005-CA-0649.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2006.
    Chanel Robinson Debose, New Orleans, Counsel for Appellant, Floyd Jackson.

      Victor L. Papai, Jr., Assistant City Attorney, Sherry S. Landry, City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, New Orleans, Counsel for Appel-lee, New Orleans Police Department.
    (Court Composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, Jr., Judge ROLAND L. BELSOME).
   LEON A. CANNIZZARO, Jr., Judge.

_JjThe appellant, New Orleans Police Department (NOPD) Officer Floyd Jackson, appeals a decision of the Civil Service Commission of the City of New Orleans (the Commission) upholding the five-day suspension imposed on him by New Orleans Police Superintendent Edwin P. Compass, III, the appointing authority, for causing an accident between two NOPD vehicles.

FACTS AND PROCEDURAL HISTORY

On August 1, 2003, Officer Jackson, classified as a Police Officer II, and his partner, Sergeant Steven Gilliam, were conducting a routine traffic stop on Delery Street when they received a call that another police officer, who was nearby, needed assistance to stop a stolen vehicle near the intersection of St. Claude Avenue and Egania Street. The officers completed their stop and returned to their NOPD patrol car. Officer Jackson, the driver, proceeded from Delery Street onto St. Claude Avenue, heading west. Upon approaching Lamanche Street, Officer Jackson turned left in order to make a U-turn on St. Claude Avenue. As he did so, |Pa NOPD van, driven by NOPD Officer Derrick Burmaster and traveling in the left westbound lane on St. Claude Avenue, struck Officer Jackson’s patrol car broadside on the driver’s side. The patrol car came to rest on the median, while the van traveled several feet from the point of impact until it stopped in the left westbound lane of St. Claude Ave. At the time, Officer Burmaster and his partner, NOPD Officer Alan Bartholomew, who was a front seat passenger in the van, were also responding to the call for assistance. As a result of the accident, both NOPD vehicles were heavily damaged. NOPD Officer Lucian Sunseri, an accident investigator, was called to the scene to investigate the incident and prepare a police report.

Following an administrative inquiry into the matter, the NOPD Traffic Accident Review Board determined that the accident was preventable and that Officer Jackson was at fault. Based on the board’s findings, Superintendent Compass issued a disciplinary letter to Officer Jackson, noting that his conduct was contrary to the standards prescribed by Rule IX, Section 1, paragraph 1.1 of the Rules of the Civil Service Commission, and imposed the five-day suspension. The disciplinary letter set forth the following significant factual finding:

This accident occurred as you were traveling westbound on Saint Claude Avenue, in the right travel lane, responding to a call for assistance from another police unit. As you approached the intersection of Lamanche Street, you executed a U-turn in the median and was struck by vehicle # 2. Vehicle # 2 was traveling westbound on Saint Claude Avenue, in the left travel lane, at the time of the collision. You executed an improper turn.

| ^Officer Jackson disputed the finding that he was traveling in the right westbound lane of St. Claude Avenue when he made the left turn and appealed his suspension to the Civil Service Commission. At the hearing before the Civil Service hearing examiner, Officer Jackson testified that he was traveling in the left westbound lane on St. Claude Avenue and decided to make a U-turn so he veered slightly to the right to make a “wide” left turn into the median at Lamanche Street. He testified that he never crossed the centerline between the left and right westbound travel lanes while attempting to make the wide turn. Sergeant Gilliam also testified, corroborating Officer Jackson’s testimony.

Officer Sunseri, testifying as a witness for the appointing authority, stated that he had interviewed both Officers Jackson and Burmaster following the accident and photographed the scene. Based upon his investigation, Officer Sunseri determined that Officer Jackson made the left turn from the right travel lane of St. Claude Avenue in front of Officer Burmaster’s NOPD van, which was traveling in the same direction in the left lane. According to Officer Sunseri, the physical evidence supported the conclusion that Officer Jackson made an illegal left turn from the right lane based upon the location of the broken glass caused by the impact of the two vehicles. Officer Sunseri testified that the photographs, which were admitted into evidence, showed most of the broken glass landed in the left lane near the centerline dividing the left and right westbound lanes, indicating that the vehicles collided just to the left of the centerline.

The appointing authority also called Officer Bartholomew as a witness. Officer Bartholomew testified that he was a passenger in the NOPD van driven by Officer Burmaster. According to him, they were traveling in the left westbound lane of St. Claude Avenue in response to a call for assistance from another police | ¿officer when, suddenly, Officer Jackson’s police vehicle turned in front of them from the right lane of traffic without warning or sufficient time to take evasive action. The appointing authority had subpoenaed Officer Burmaster to testify at the hearing, too, but he was unavailable because he was on active military duty overseas.

Following the hearing, the hearing examiner submitted his report to the Civil Service Commission, recommending that Officer Jackson’s appeal be dismissed. Based on the report, the Civil Service Commission concluded that the appointing authority proved that Officer Jackson caused a preventable accident by executing a left turn from the right lane, turning in front of another police vehicle traveling in the same direction. The Civil Service Commission determined that the five-day suspension imposed on Officer Jackson by the appointing authority was reasonable under the circumstances and dismissed the appeal.

ASSIGNMENT OF ERROR

Officer Jackson asserts one assignment of error on appeal: the hearing examiner erred in allowing an out of court statement into evidence when the declarant (Officer Burmaster) was unavailable to testify, thereby depriving him of the right to confront and cross-examine a material witness against him.

LAW AND DISCUSSION

An employee with permanent status in the classified city civil service may be disciplined only for cause expressed in writing. La. Const, art. X, § 8(A). He may appeal from such disciplinary action to the Civil Service Commission, and the 15burden of proof on appeal, as to the facts, is on the appointing authority. La. Const, art. X, § 8(A); Walters v. Department of Police of the City of New Orleans, 454 So.2d 106, 112-113 (La.1984). On appeal, the Civil Service Commission has a duty to decide if the appointing authority had good or lawful cause for taking disciplinary action, and, if so, whether the punishment is commensurate with the offense. Walters, 454 So.2d at 113. Legal cause exists if the facts found by the Commission disclose that the employee’s conduct impaired the efficient operation of the public service in which the employee was engaged. Id.

A reviewing court should not reverse the Civil Service Commission’s conclusion as to whether the disciplinary action is based on legal cause, unless, the conclusion is arbitrary, capricious, or an abuse of discretion. Walters, 454 So.2d at 114. “Arbitrary or capricious” can be defined as the lack of a rational basis for the action taken. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641. When reviewing the Civil Service Commission’s findings of fact, the reviewing court should not reverse or modify a finding unless it is clearly wrong or manifestly erroneous. Walters, 454 So.2d at 113.

Officer Jackson complains that the hearing examiner erred in allowing Officer Sunseri to give hearsay testimony. During Officer Sunseri’s investigation of the accident, he learned from Officer Burmas-ter that Officer Jackson made the left turn from the right traffic lane. According to Officer Jackson, that hearsay statement was the only testimony that placed his police vehicle in the right lane prior to the accident, and, thus, the hearing examiner should not have allowed the statement into evidence without his having the opportunity to cross-examine Officer Burmaster.

1 fiEven if Officer Sunseri’s hearsay statement is excluded, the remaining portions of his testimony are admissible. As previously mentioned, Officer Sunseri testified that he arrived on the scene shortly after the accident occurred and interviewed Officers Jackson, Burmaster and Bartholomew as well as Sergeant Gilliam. He photographed the physical evidence at the accident scene, including the damaged vehicles, their location, and the broken glass on the street. Based on his observations, Officer Sunseri concluded that Officer Jackson had executed the left turn from the right lane.

Clearly, the appointing authority satisfied its burden of proof by offering Officer Sunseri’s remaining testimony, the testimony of Officer Bartholomew and the photographs taken at the scene of the accident. Although Officer Jackson states on page 5 of his appellate brief that “[t]here was no other eyewitness who could place the Appellant’s vehicle in the right lane immediately prior to the accident,” Officer Bartholomew testified unequivocally that Officer Jackson turned left from the right westbound lane directly in front of the police van driven by Officer Burmaster. The photographs, which show damage to the mid to rear driver’s side of Officer Jackson’s police car as well as the broken glass from the vehicles lying in the left lane near the centerline, clearly support Officer Bartholomew’s testimony as well as Officer Sunseri’s conclusion that Officer Jackson was at fault in causing the accident. Thus, the appointing authority proved by a preponderance of the evidence that Officer Jackson caused a preventable accident that resulted in substantial damage to two police vehicles and that his actions substantially impaired the efficient and orderly operation of the police department.

17Accordingly, the decision of the Civil Service Commission, dismissing Officer Jackson’s appeal of the five-day suspension imposed upon him by the appointing authority, is affirmed.

AFFIRMED.

LOVE, J., concurs with reasons.

BELSOME, J., concurs in the result.

LOVE, J.,

Concurring.

hi concur with the majority in affirming the Civil Service Commission. I, however, find that the hearing officer did not err in admitting the hearsay testimony. Taylor v. New Orleans Police Department, 2000-1992, (La.App. 4 Cir. 12/12/01), 804 So.2d 769.


author: MICHAEL E. KIRBY, Judge.

text:
    MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as Nominee for GMAC Mortgage Corporation v. Kevin WELLS, Jr.
    No. 2005-CA-0795.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 5, 2006.
    Corinne G. Hufft, Nan Roberts Eitel, Don A. Rouzan, Jones Walker Waechter Poitevent Carrere & Denegre, New Orleans, Counsel for Plaintiff/Appellee.
    Patrick D. Breeden, New Orleans, Counsel for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS Sr., Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

hln this case defendant/appellant, Kevin Wells, Jr., (Mr. Wells) appeals a Judgment out of the Orleans Parish Civil District Court that dismissed without prejudice Mr. Wells’ petition for damages and injunction in favor of plaintiff/appellee, Mortgage Electronic Registration Systems, Inc. (MERS). We find that the trial court legally erred in dismissing Mr. Well’s entire action and that the proper remedy was to sever Mr. Well’s claims for damages from the executory proceeding and assign those claims a new number. For the reasons below, we remand for further proceedings consistent with this opinion.

STATEMENT OF THE FACTS

For the purpose of purchasing a home, Mr. Wells executed a note on July 31, 2001, in the principal amount of $65,822.00. The note is secured by a mortgage on Mr. Wells’ home. Mr. Wells made a total of four payments on the note. MERS alleges that Wells defaulted under the note and mortgage by failing to pay, when due, the full monthly installment for January 2002. MERS alleges as of December |⅞1, 2001, the amounts owed on the note included the principal balance of $65,624.75, interest from December 2, 2001, until paid at 7.05% per annum.

As evidenced in the record, in January 2002, Mr. Wells paid RBMG, Inc. a certified check in the amount of one thousand nine hundred dollars ($1,900.00). Mr. Wells’ note states that payee of the note is Eureka Homestead Society, Savings and Loan. In the record there is a document dated July 31, 2001, in which Eureka assigns the note to RBMG, Inc., although the signatures are illegible. The note also has a stamp which states “Pay to the order of RBMG, Inc. Without Recourse”, however there is no accompanying signature. MERS argues that this is a blank endorsement under La. R.S. 10:3 — 205(b), and converts the note into bearer paper. Since MERS has possession of the note, it argues it can enforce it, whether or not it is a “nominee” of GMAC, who had prior possession of the note. We have found no evidence in the record that RBMG, GMAC, or MERS gave notice to Mr. Wells that MERS would be the new servicer of the note.

MERS filed its petition for executory process against Mr. Wells on June 25, 2002. In this petition it alleged that MERS is entitled to enforce the note and mortgage since it declared that it was the nominee of GMAC Mortgage Corporation.

Mr. Wells notes several irregularities in the record concerning MERS, its actions, and the prelude to the Order of Seizure and Sale dated June 27, 2002. Mr. Wells also alleges violations of the Real Estate Settlement Procedure Act, 12 U.S.C.A. § 2605(c) and (d), to the effect that MERS did not notify Mr. Wells it was the |3new servicer of the note. Mr. Wells alleges lack of notice from MERS to Mr. Wells required by the Fair Debt Collection Practice Act 15 U.S.C.A. § 1691(g).

Nevertheless, the sole issue properly before us is whether the granting of the exception of improper cumulation and dismissal of Mr. Wells’ actions were correct.

ACTION OF THE TRIAL COURT

The trial court in a Judgment dated December 29, 2004, granted the exception of improper cumulation and dismissed without prejudice Mr. Wells’ Petition for an Order Suspending the Seizure and Sale Order and/or Preliminary Injunction and/or Permanent Injunction and/or for Damages and/or for the Return of the Seized Property.

STATEMENT OF THE LAW

The exception of improper cumulation of actions is a dilatory exception. La. C.C.P. Art. 926(7). La. C.C.P. Art. 462 states:

A plaintiff may cumulate against the same defendant two or more actions even though based on different grounds, if:
(1) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
(2) All of the actions cumulated are mutually consistent and employ the same form of procedure.
Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be | cumulated in the same judicial demand if pleaded in the alternative.

MERS contends that Mr. Wells action employs ordinary procedure, while its action employs executory proceedings and thus, the two cannot be cumulated. Mr. Wells argues that since the executory order has been signed, the executory process is terminated. As we are reviewing only the Judgment granting the exception and' dismissal and since the injunction is not yet before us, we will not go into the underlying merits and the interpretation of La. C.C.P. Art. 2751 pertaining to the grounds for arresting seizure and sale and providing for damages.

The effect of sustaining a dilatory exception is found in La. C.C.P. Art. 933, to wit:

A. If the dilatory exception pleading want of amicable demand is sustained, the judgment shall impose all court costs upon the plaintiff. If the dilatory exception pleading prematurity is sustained, the premature action, claim, demand, issue or theory shall be dismissed.
B. When the grounds of the other objections pleaded in the dilatory exception may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for a noncompliance with this order.

Also we note that La. C.C.P. Art. 464, addresses the effect of improper cumulation, which states:

When the court lacks jurisdiction of, or when the venue is improper as to, one of the actions cumulated, that action shall be dismissed.
When the cumulation is improper for any other reason, the court may: (1) order separate trials of the actions; or | b(2) order the plaintiff to elect which actions be shall proceed with, and to amend his petition so as to delete therefrom all allegations relating to the action which he elects to discontinue. The penalty for noncompliance with an order to amend is a dismissal of plaintiffs suit.

Both parties cite the case of Abadie v. Cassidy, 581 So.2d 657 (La.1991). In that case plaintiff sued the owner of an adjoining lot. Each lot was burdened with a drainage servitude. Plaintiffs filed suit alleging defendants were obstructing the servitude and causing damage to plaintiffs’ property. Plaintiffs sought damages and injunctive relief. The trial court sustained defendants’ dilatory exception of improper cumulation of actions and dismissed plaintiffs’ suit after determining any defects in the pleadings could not be removed by amendment. The court of appeal, in an unpublished opinion, affirmed the portion of the trial court judgment maintaining the dilatory exception of improper cumulation. The court of appeal relied upon People of the Living God v. Chantilly Corp., 211 So.2d 445 (La.App. 4 Cir.1968), and held that cumulation was improper because the action for damages and the action for in-junctive relief employ different forms of procedure. The Supreme Court of Louisiana reversed both lower courts stating:

The requirement that all of the actions employ the same form of procedure refers merely to whether each of the cumulative actions employ either ordinary, executory or summary procedure. See La.Code' Civ.P. art. 463, comment (a); Johnson v. Marvin Cutrer Contractor, Inc., 348 So.2d 1256 (La.App. 2nd Cir. 1977); Tate, Work of the Appellate Courts-1968-1969, 30 La.L.Rev. 286, 287 (1969). In the present case, the two cumulated actions are the claim for damages and the claim for injunctive relief. The principal demand for a permanent injunction is determined on its merits only after a -full trial under ordinary process. See Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979); Haughton Elevator Division v. State, 367 So.2d 1161 (La.1979); Equitable Petroleum v. Central Transmission, Inc., 431 So.2d 1084 (La.App. 2nd Cir. 1983); Tate, Work of the Appellate Courts-1968-1969, supra. Thus, both of the actions sought to be cumulated *658 in the present case are triable by ordinary process and thus employ the same “form” of procedure.
Additionally, People of the Living God v. Chantilly Corporation, the ease relied upon by the court of appeal, has been called “a casebook example of how not to decide a cumulation problem”. Tate, Work of the Appellate Courts-1968-1969, id. In explaining the error of the Chantilly court Judge Tate stated:
In holding the cumulation improper, the court pointed out that a jury trial was available for the damage action, but not for the injunction action (no one had sought trial by jury), as well as certain differences in the treatment of appeals, such as that a permanent injunction may not be appealed suspensively as of right, while the damage action may. Citing a pre-1960 decision, the court concluded that the two actions could not be cumu-lated ‘because of the complications that would result.’ The court’s refusal to permit cumulation because of these (exaggerated) procedural difficulties ignores the Code criteria authorizing cu-mulation of two or more actions against the same defendant. The court should not have refused cumulation when the Code requirements were met; its reliance upon pre-1960 case decisions overlooks the intent of the Code to overrule legislatively the pre-1960 jurisprudence to the contrary. Tate, Work of the Appellate Courts-1968-1969, id. at 288.
Accordingly, we find that the requirements of La.Code Civ.P. art. 462 have been satisfied and the court of appeal erred in relying upon People of the Living God v. Chantilly, supra, to prevent cumulation.
For the reasons assigned above, the writ is granted, the decision of the court of appeal is reversed, and the [^matter is remanded to the trial court for further proceedings consistent with this opinion.

Using the Abadie rationale, the trial court here was incorrect in dismissing all of Mr. Wells’ action, and not giving him an opportunity to amend his pleadings. At the very least, Mr. Wells’ damage claim could have been severed from the other claims and assigned a new number, if the trial court felt that it did not meet the criteria for cumulation as articulated in La. C.C.P. Art. 462.

For the aforementioned reasons, we reverse the trial court and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest, mortgage, or privilege is extinguished, or is legally unenforceable, or if the procedure required by law for an executo-ry proceeding has not been followed.

       It should be noted that the action for a preliminary injunction employs summary procedure. However, this action is ancillary to the principal demand for a permanent injunction, in order to prevent irreparable injury during the pendency of the principal demand. La. Code Civ.P. art. 3601; Tate, Work of the Appellate Courts-1968-1969, supra.


author: MARION F. EDWARDS, Judge.

text:
    Idell Gray WILLIAMS v. Todd J. ROBERTS and Allstate Insurance Company.
    No. 05-CA-852.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2006.
    Phyllis C. Coci, Metairie, La., for Plaintiff/Appellee.
    Christopher E. Lawler, Christopher P. Lawler, Donovan & Lawler, Metairie, La., for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

| ^Defendant, Allstate Insurance Company, appeals following an award of damages to plaintiff, Idell Gray Williams, resulting from an automobile accident between the plaintiff and Allstate’s insured, Todd Roberts. For the following reasons, we amend the judgment of the trial court, and affirm as amended.

On August 21, 2003 plaintiff, Idell Williams (“Williams”) was traveling westbound through St. Charles Parish on U.S. 61 when her automobile was struck from behind by defendant, Todd Roberts (“Roberts”), while stopped at a red light. Thereafter, on January 21, 2004, Williams filed suit in the Twenty-Ninth Judicial District Court for the Parish of St. Charles against Roberts and his insurer, Allstate Insurance Company (“Allstate”), alleging injuries to her cervical, thoracic, and lum-bosacral spine. Prior to a bench trial on the merits, which was held on April 28, 2005, Allstate stipulated to both liability and coverage. Following trial, the 1 scourt awarded Williams $14,000 in general damages, $2,175 in special medical damages, and $175 in lost wages.

Allstate timely filed the present appeal.

LAW AND ARGUMENT

On appeal, Allstate’s lone assignment of error is that the trial court abused its discretion in its award of general damages to Williams.

In regard to the appellate review of general damage awards, the Louisiana Supreme Court noted in Theriot v. Allstate Ins. Co.:

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion^] ... And, “[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient.”... Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions .... Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate.... This court recently considered the standard of appellate review of general damages awards in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993); the majority opinion contains the following commentary of the interpretation and application of the controlling legal precepts:
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck [v. Stevens, 373 So.2d 498 (La.1979) ] to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general 14damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

(Citations omitted.)

In the present case, Williams testified at trial and described for the court her alleged injury and treatment. She stated that, immediately after the accident, she stopped by a client’s house to let her know that she could not work that day, and then she went home to lie down because of a “bad headache” and dizziness. She was not treated for any injury at the scene of the accident. Williams said that she first sought medical treatment with Dr. Henry Fitch, a chiropractor, approximately three days after the accident.

Williams testified that she took an over-the-counter pain reliever three times a day for the first month following the accident. In her second month of treatment with Dr. Fitch, she saw him two days a week, and her visits included rehabilitative exercises. Williams said that, in her third month of treatment, she felt better than she did immediately after the accident, but she still experienced pain. Williams stated that she continued to have a “burning sensation” in her neck for approximately two months after she was discharged by Dr. Fitch. Williams testified that her injuries prevented her from doing some tasks around her house and additionally caused intimate relations with her husband to cease for approximately three weeks.

On cross-examination, Williams testified that there was no difference in her ability to lift weight before or after the accident. Williams further testified that she did not return to Dr. Fitch after she had been discharged from his care.

| sMedical records from Dr. Fitch were also entered into evidence. Dr. Fitch opined in a narrative report that he first examined Williams on August 25, 2003. At that time, Williams complained of constant pain. Based upon his examination, which included an image of the affected areas, in that same report Dr. Fitch made the following diagnosis of Williams’ injuries: (1) Cervical acceleration/ deceleration injury; (2) Loss of cervical lordosis; motion segment integrity loss mid and lower cervi-cals; (3) Degenerative disc and joint disease; (4) Post-traumatic headaches; and (5) Lumbosacral strain/sprain, hypolordo-sis, degenerative disc disease, facet syndrome. Dr. Fitch wrote that Williams was discharged from his care on October 22, 2003 “having reached maximum benefit from treatment,” but that he felt there was a “moderate chance Ms. Williams will experience muscle pain, headaches, and even paresthesias.” Dr. Fitch further stated his opinion that the motor vehicle accident of August 21, 2003 resulted in a stretching and tearing injury to the upper, mid and lower cervical spine, with secondary injuries to the lumbo-sacral spine.

No witnesses testified on behalf of the defense.

Following trial, the court made the following findings of fact and offered an explanation of its special and general damage awards:

I found the plaintiff to be a creditable [sic] witness. Although she sustained only minor damage to her bumper, which she elected not to repair, the preponderance of the evidence indicated that this forty-three year old woman suffered a three month symptomatic cervical, thoracic and lumbar strain, with daily headaches for the first month following the accident. These injuries, more probably than not, secondarily aggravated her pre-existing degenerative disc and joint disease. These injuries interfered temporarily (approximately six weeks) with her marital life (household duties and sexual relation ship [sic] with her husband) and prevented her from performing three contracted house cleaning jobs.
She sustained special medical damages of $2,175.00 dollars | fi[sic] and special damages for lost income in the amount of $175.00 dollars [sic]. Considering this and the above pain and suffering evidence, I find her general damages to be $14,000.00 dollars [sic].

Allstate argues that the award in the present case is greatly disproportionate to other cases in which plaintiffs sustained a similar injury. Allstate contends that the evidence at trial regarding the severity and duration of Williams’ injuries does not support the trial court’s general damage award. Specifically, Allstate refers to the facts that Williams returned to work the day after the accident and was only diagnosed with soft-tissue injuries, and she was able to control her pain with over-the-counter medication and conservative care. Allstate also contends that Williams’ medical records indicate that her injuries resolved rapidly, and in her second month of treatment, there were days when she was pain free.

In support of its argument that the trial court erred in its award of general damages, Allstate cites to several opinions by this Court in which we addressed general damage awards to plaintiffs who sustained injuries similar to those of Williams. While we agree with the trial court’s finding that the evidence supports Williams’ contention that she sustained at least a three-month injury, based on our review of quantum in those and other cases, we also find that the trial court abused its discretion in the award of general damages in the present case.

As indicated by the Louisiana Supreme Court in Theriot v. Allstate Ins. Co.:

Prior awards under similar circumstances serve only as a general guide. If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. In such review, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries.... In instances where the appellate court is compelled to modify awards, the award will only be disturbed [7to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court....

(Citations omitted.)

After a review of the record and relevant jurisprudence, we hereby amend the general damage award to plaintiff to $7,500, an amount which we find to be commensurate with a soft tissue injury that resolves over a three-month duration. In all other respects, the judgment of the trial court is affirmed. Costs are assessed to the appellee.

AMENDED; AFFIRMED AS AMENDED.

      . 625 So.2d 1337 (La.1993).

      . 625 So.2d at 1340-41.

      . Caruso v. Canal Indem. Co., 03-423 (La.App. 5 Cir. 9/16/03), 858 So.2d 31 (and cases cited therein), writ denied, 2003-2752 (La.1/16/04), 864 So.2d 631; Griffin v. Kurica, 03-190 (La.App. 5 Cir. 6/19/03), 850 So.2d 807 (and cases cited therein); Entrekin v. Joanne Powell, 02-1038 (La.App. 5 Cir. 2/11/03), 841 So.2d 845 (and cases cited therein).

      . 625 So.2d at 1340.