text:
    Jessie Lee MARTIN, Jr., Plaintiff-Appellant v. JKD INVESTMENTS, LLC, Donald Joseph Allen and Jonesboro State Bank, Defendants-Appellees.
    No. 42,196-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Chris Lane Bowman, Jonesboro, for Appellant.
    Bobby L. Culpepper, Jonesboro, for Ap-pellee.
    Before BROWN, GASKINS, and CARAWAY, JJ.
   BROWN, Chief Judge.

| plaintiff, Jessie Lee Martin, appeals the trial court’s granting of a motion for summary judgment in favor of defendants, JKD Investments, LLC, Donald Joseph Allen, and Jonesboro State Bank. For the following reasons, we affirm.

Facts and Procedural Background

In the summer of 2001, Martin began the process of constructing a home on the five and one-half acres of land he inherited from his mother. Martin went to the Jonesboro State Bank to meet with Donald Joseph Allen, an employee and officer of the bank, about getting a loan for the construction, after which the bank loaned Martin approximately $90,000.

Shortly after Martin received the loan from Jonesboro State Bank, Martin’s sister, Carrie Angela Martin, made an inter vivos donation of the five and one-half acres that she inherited from her mother to Martin. On the day he received his sister’s portion of the land, Martin, without reading the document he was signing, conveyed the mineral rights to the entire property to JKD Investments, LLC, for $3,000. Martin cashed the check and deposited $2,000 into his construction account that same day.

In early 2005, while at Jonesboro State Bank, Martin found out that Allen owned the mineral rights to his property. After further investigation into the matter, Martin filed suit against Allen, Jonesboro State Bank, and JKD Investments for defrauding him out of his mineral rights. Martin |2sought to have the mineral deed rescinded and damages awarded. Defendants filed a motion for summary judgment which was opposed by Martin. The trial court held that Martin’s response to defendants’ motion for summary judgment failed to meet the statutory requirements and granted summary judgment. From this adverse judgment, Martin has appealed.

Discussion

Summary Judgment

Appellate courts review summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Shelton v. Standard/700 Associates, 01-0587 (La.10/16/01), 798 So.2d 60; Mackey v. Jong’s Super Value No. 2, 41,440 (La.App. 2d Cir.09/27/06), 940 So.2d 118. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The procedure is favored under Louisiana law and shall be construed to accomplish these ends. Id. Summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

The movants, in this case, defendants, have the burden of proof. La. C.C.P. art. 966(C)(2). However, because defendants will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of Martin’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to |shis claim. Id. If defendants meet this initial burden of proof, the burden shifts to Martin to produce factual support sufficient to establish that he will be able to meet his evidentiary burden at trial. Id. If Martin fails to meet this burden, there is no genuine issue of material fact, and defendants are entitled to summary judgment. La. C.C.P. art. 966.

As provided in La. C.C.P. art. 967(B), Martin may not rest on the mere allegations of his pleading in response to a properly made and supported motion for summary judgment; rather his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).

A material fact is one whose existence or nonexistence is essential to the plaintiffs cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.07/05/94), 639 So.2d 730; Hargrove v. Goods, 41,817 (La.App. 2d Cir.02/28/07), 953 So.2d 968. Not all disputed facts are material, and summary judgment may be proper if the contested facts present no legal issues. Id.

Martin contends that the trial court erred in granting defendants’ motion for summary judgment as there existed genuine issues of material fact. It is his contention that Allen, acting in concert with the other defendants, defrauded him of his mineral interest in the land he inherited from his mother and the land gifted to him by his sister. Furthermore, Martin alleges that, contrary to the three affidavits put forth by defendants, he did not sign the mineral deed in the presence of any witnesses or a notary 14public. Based on the aforementioned, Martin argues that defendants’ acts were fraudulent and that the executed mineral deed should be rescinded with defendants paying damages.

In support of their motion for summary judgment, defendants attached Martin’s deposition, in which plaintiff testified that he signed the mineral deed without reading it. This statement effectively quashes Martin’s fraud claim and renders the factual dispute over whether witnesses and a notary were present immaterial at the same time.

Martin’s unsubstantiated claim that he and Allen were alone when he signed the mineral deed, as opposed to having the witnesses and notary public present, is not a material fact in that its existence or nonexistence is not essential to plaintiffs cause of action under the applicable theory of recovery. See Smith, supra. A transfer of immovable property must be made by authentic act or by act under private signature. La. C.C. art. 1839. Any party against whom an act under private signature is asserted must acknowledge his signature or deny that it is his. La. C.C. art. 1838. As noted above, during his deposition, Martin acknowledged that the signature on the mineral deed is his. This acknowledgment renders the factual dispute over whether two witnesses and a notary were present immaterial, since in one scenario the transfer was made by authentic act and in the other scenario the transfer was made by act under private signature. Under both scenarios the transfer was valid.

| sWith regards to his allegation of fraud, Martin’s claim that he never read the mineral deed when he signed it negates the possibility of his being defrauded by defendants. Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. La. C.C. art. 1954. Clearly this is a situation in which the truth could have been ascertained without difficulty, inconvenience, or special skill since the document specifically stated that Martin was conveying his mineral rights to JKD Investments, LLC. Thus, by showing that Martin failed to ascertain what he was signing, when he could have easily read the document before signing it, defendants met their burden of proving the lack of factual support for fraud. Therefore, the burden shifts to Martin to produce factual support sufficient to establish that he would be able to meet his evidentiary burden at trial.

Martin’s response to defendants’ motion for summary judgment, however, was that “[tjhere are numerous issues of genuine fact as outlined even in the Defendant’s submissions.” Martin did not set forth one specific fact to show that there was a genuine issue for trial, much less any factual circumstances constituting fraud. He relied solely on the allegations in his pleading. Thus, in accordance with La. C.C.P. art. 967(B), we find that, due to Martin’s failure to adequately respond to defendants’ motion for summary judgment, the trial court’s granting of summary judgment in favor of defendants was proper.

| ⅛Reasons Incorporated into Judgment

Martin also contends that the trial court erred by incorporating the written reasons for judgment into its final judgment, contrary to La. C.C.P. art. 1918, and, accordingly, he requests that the judgment be set aside.

La. C.C.P. art. 1918 states:

A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.

The supreme court, however, has held that the language contained in the second sentence of La. C.C.P. art. 1918 is precato-ry and, as such, does not render an otherwise complete and valid judgment invalid merely because it contains surplus language. Hinchman v. International Brotherhood of Electrical Workers, Local Union # 130, 292 So.2d 717 (La.1974); see also Country Club of Louisiana Property Owners Ass’n, Inc. v. Dornier, 96-0898 (La.App. 1st Cir.02/14/97), 691 So.2d 142.

Accordingly, we find that this assignment of error has no merit and that the final judgment of the trial court stands.

Conclusion

For the foregoing reasons, we affirm the trial court’s ruling granting summary judgment in favor of defendants. Costs of this appeal are to be assessed to plaintiff, Jessie Lee Martin.

      . Carrie Martin originally made a inter vivos donation of her “five acres, more or less," on October 20, 2000. This second donation, which is dated June 22, 2001, purports to convey all of her undivided interest not transferred in the October 2000 deed. The amount of land not originally transferred, if any, is not evidenced in the record.

      . JKD Investments, LLC, is owned and operated by Donald Joseph Allen.

      . The affidavits of the two witnesses, Tammy Walsworth and Sandra Garrett, as well as the notary public, Fannie Gates, stated that Jessie Lee Martin executed the mineral deed in their presence.

      . We further note Martin’s pleading fails to set forth the circumstances constituting fraud with particularity, as required by La. C.C.P. art. 856.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Marlon Tyrone COLEMAN, Appellant.
    No. 42,128-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      James E. Beal, Jonesboro, Mary E. Hal-terman, Shreveport, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorney, for Appel-lee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, Judge.

|, The defendant, Marlon Coleman, was charged by bill of information with two counts of distribution of cocaine, a violation of LSA-R.S. 40:967(A). Pursuant to a plea agreement, defendant pled guilty to one count of distribution of cocaine and the state dismissed the second count along with two other pending charges for possession of cocaine and possession of marijuana. The district court imposed a sentence of eight years at hard labor and denied defendant’s timely motion for reconsideration of sentence. Defendant appeals his sentence as excessive. For the following reasons, we affirm.

DISCUSSION

The record shows that in November 2005, the defendant sold two rocks of crack cocaine for $30 to a confidential informant working with the Webster Parish Sheriffs Office. Several days later, the defendant again sold rock cocaine to the confidential informant. Subsequently, defendant was arrested and charged with two counts of distribution of cocaine. In accordance with the plea agreement, the defendant pled guilty to one count of distribution of cocaine, for which he was sentenced to serve eight years at hard labor.

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the goals of punishment would be accomplished with a less severe sentence considering his background and the circumstances of the case.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show |2that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The articulation of the factual basis for a sentence is the goal of Article 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641.

The second inquiry involves a determination of whether the sentence imposed is too severe in light of the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a needless and purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. McCall, 37,442 (La.App. 2d Cir.8/20/03), 852 So.2d 1162.

[3A conviction for distribution of cocaine is punished by imprisonment at hard labor for not less than two years nor more than 30 years, with the first two years of said sentence to be served without benefit of parole, probation or suspension of sentence. LSA-R.S. 40:967(B).

Prior to imposing sentence in this case, the district court reviewed a pre-sentence investigation. (PSI) report. The court stated that defendant was a first felony offender with a “significant” criminal history, which included convictions for theft and flight from an officer. Noting the facts of this case, the court found that defendant was “a dealer, in cocaine” based upon his sale of the drug on two separate occasions.

In his appellate brief, defendant contends the sentence imposed was too severe considering his age and lack of prior felony convictions. The defendant further contends the district court erred in simply adopting the sentencing recommendation presented in the PSI by the Department of Corrections, which is without legal authority to sentence the defendant.

We note that the sentencing recommendation made by the Department of Corrections is statutorily authorized by LSA-R.S. 15:1132. Accordingly, the district court could consider such a recommendation in exercising its discretion to determine the appropriate sentence for a particular defendant. Here, after noting the sentencing recommendation, the court gave defendant an opportunity to make a statement and the defense attorney pointed out that defendant was 29 years old and was gainfully employed at the time of the offense. Thus, the defendant’s contentions are not supported by the record, which shows that the district court was aware of the defendant’s age, his ^employment history and his status as a first felony offender. In addition, the court noted the “long laundry list” of defendant’s prior criminal offenses.

After reviewing the record, we conclude that an adequate factual basis exists for the imposition of this sentence, which is in the lower end of the sentencing range for the offense of conviction. Moreover, defendant’s sentencing exposure was reduced as a result of the plea agreement that provided for the dismissal of several other pending charges.

Considering the background of the defendant and the circumstances of this case, the sentence imposed is lawful and is neither grossly disproportionate to the severity of the offense committed nor shocking to the sense of justice. There is no showing of an abuse of the district court’s discretion in sentencing this defendant. Consequently, we cannot say that the sentence is constitutionally excessive. The assignment of error lacks merit.

Error Patent

In reviewing the record for error patent, we note that at sentencing the district court failed to specify that the first two years of defendant’s sentence must be served without benefit of parole, probation or suspension of sentence pursuant to LSA-R.S. 40:967(B)(4)(b). When a district court fails to order service of sentence without benefits in a case in which a determinate time period to be so served is mandated by the statute of conviction, the sentence will automatically be served without benefits for the required time period. LSA-R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Therefore, there is no need to remand for | ^correction of this sentencing error.

CONCLUSION

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

AFFIRMED.


author: DREW, J.

text:
    Mickey JOHNSTON, Plaintiff-Appellee v. Alvin SHELTON and State Farm Mutual Automobile Insurance Company, Defendant-Appellant.
    No. 42,103-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2007.

      Kitchens, Benton, Kitchens & Black, by Graydon Kelly Kitchens III, Minden, for Appellants, Alvin Shelton and State Farm Mutual Automobile Insurance Company.
    Peters, Ward, Bright & Hennessy, by Patrick Alan Stegall, Shreveport, Mickey Johnston and Double J Distributing, LLC, for Appellee.
    Hubley, Marcotte, Rhodes & Hussey, by D. Brennan Hussey, Shreveport, State Farm Mutual Automobile Insurance Co., for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   DREW, J.

hOn the morning of May 22, 2004, Mickey Johnston operated a 1999 Chevrolet Metro car owned by Double J Distributing Company, LLC, and insured by State Farm. In the intersection at the southwest corner of the courthouse square in Homer, his eastbound vehicle crashed with a southbound 1996 Ford Taurus owned and operated by Alvin Shelton, who was also insured by State Farm. Both drivers contended they had the green light when they drove into the intersection and collided.

Johnston contended that he entered the intersection protected by a green light and that Shelton ran a red light and struck him. Johnston alleged, that his car was totaled and he sustained injuries. After initially suing Shelton and State Farm, Johnston amended the petition adding Double J as a plaintiff. In addition, Johnston sued State Farm as uninsured/under-insured motorist insurer for himself and Double J. Shelton and State Farm responded, alleging that the accident was caused by Johnston’s negligent operation of his vehicle in failing to obey traffic signals, to keep a proper lookout, and to yield.

Prior to trial, the parties jointly stipulated that the individual claims of the parties did not exceed $50,000 exclusive of costs and interest. They further stipulated that the Double J vehicle operated by Johnston was insured by State Farm under policy # 78 4305-B10-18A issued to Double J. Under medpay coverage of the Double J policy # 78 4305-B10-18A, State Farm paid medical expenses to Johnston of $4,335.90.

After hearing the testimony and receiving the evidence, the trial court apportioned 20% of the fault to Johnston and 80% of the fault to Shelton. | {.While Johnston sought to recover medical expenses of $47,056.46, the trial court found he was entitled to special medical expenses of $6,180.46 attributable to the accident. The amount of awarded medical expenses are not at issue in this appeal. In addition, the trial court awarded Johnston general damages of $25,000. The judgment of the trial court is affirmed.

TESTIMONY

Homer Police Chief Russell Mills investigated the accident and was unable to determine fault. When he arrived on the scene, he found that Johnston “had a pretty good knot on his head.” Johnston reported he traveled east on South Main toward the square. He had a green light as he approached the intersection and continued on into the intersection where Shelton’s car struck his.

Shelton told the chief he was driving south on Highway 79 along the west side of the Homer town square. Further, the light was green and he drove into the intersection.

Chief Mills found a yaw mark from the left rear tire of the Johnston ear which indicated the path of Johnston’s car after the wreck. The chief said that the dent on the rear door on the driver’s side occurred when the front of Shelton’s car struck Johnston’s. The dent just between the driver’s side front tire and the driver’s side front door resulted from the impact of Johnston’s car with the telephone pole after the car skidded into it. The chief stated the wreck was in the eastbound lane on the southern side of the intersection.

1 aJohnston’s testimony was that he traveled very slowly east on South Main so he would not have to stop at the red light. About ten feet from the intersection, he saw the light governing southbound traffic on Highway 79 turn from green to yellow. Johnston said he was barely moving and did not stop because he knew the light would be red for southbound traffic on Highway 79. He entered the intersection and saw Shelton’s vehicle in his peripheral vision. Although he tried to increase his speed to avoid the collision, his vehicle did not have sufficient power to get out of the way. Shelton’s vehicle struck the left rear door of Johnston’s vehicle, which was spun around and into a pole on his left front bumper.

Shelton’s version was that he was traveling south on Highway 79 and entered the north side of the courthouse square and observed that the light at the Highway 79 intersection with South Main was green. When he was at the southwest intersection, the light turned yellow. He felt and heard the impact before he saw Johnston’s car. Shelton’s right front bumper and headlight were damaged. Shelton’s car was insured by State Farm under a policy issued to him and his wife.

REASONS FOR JUDGMENT

The trial court noted that Johnston was driving east on South Main, which runs east and west along the south side of the Claiborne Parish courthouse square. All four sides of the streets running around the courthouse square are one way and are part of U.S. Highway 79. Shelton was traveling south on West Main (Highway 79), which runs along the west side of the courthouse square. Northbound drivers on Highway 79 had to |4traverse three sides of the square on South Main, East Main, and North Main to proceed north on West Main (all Highway 79). Southbound drivers on Highway 79 had to drive down only one side of the square on West Main (also Highway 79) to continue south on West Main/Highway 79. The trial court stated that neither South Main nor West Main had priority status and both streets were controlled by traffic lights.

The trial court found that both Johnston and Shelton, the only witnesses, were credible and told the truth about the facts of the collision as they understood them. Based upon the point of impact at the left rear door of Johnston’s car, the trial court decided that Johnston’s car had preempted the intersection when the crash occurred. Shelton should have seen Johnston’s car before impact. Johnston’s testimony was that he never intended to stop at the intersection. The trial court found that Johnston began traveling through the intersection when he saw the light governing West Main (southbound Highway 79) turn from green to yellow. Had Johnston been reasonably prudent, he should have seen Shelton’s car. Both drivers chose to drive into the intersection when the light governing southbound Highway 79 (West Main on which Shelton was driving) turned yellow without checking for other motorists. Because Johnston’s car had almost cleared the intersection when struck, the trial court fixed Shelton’s fault at 80% and Johnston’s at 20%.

Based upon Johnston’s failure to provide documentary evidence of the loss of income to both himself and Double J, the trial court declined to award either with loss of income. Moreover, although both Johnston and |5Double J suffered loss of use of the totaled vehicle, there was no proof as to the value of the claims, so the trial court made no award.

As to Johnston’s physical injuries, State Farm paid $4,335.90 while Johnston contended his medical bills totaled $47,056.46. Based upon medical testimony, the trial court disallowed as unrelated to the collision Johnston’s claims for injuries and surgeries on his shoulder and knee. Finding medical support for Johnston’s post-concussion syndrome a year after the accident, the trial court awarded Johnston special medical expenses of $6,180.46 attributable to the accident. In addition, the trial court awarded Johnston general damages of $25,000 due to past and present pain and suffering and loss of enjoyment of life. Johnston continued to suffer from pain and depression along with facial discoloration due to trauma to his left eye and decreased physical vigor. Both awards were reduced by 20% attributable to Johnston’s fault.

DISCUSSION

Fault

Shelton, the southbound defendant, and his insurer appealed, complaining that the trial court erred in assessing him with 80% of the fault based upon incorrect determination of street priority and insufficient evidence, in failing to credit his insurer with medical payments made under the policy and in awarding excessive general damages based upon the medical testimony.

Johnston, the eastbound plaintiff, answered the defendant’s appeal and urged that the trial court erred in assessing him with 20% of the fault for |fithe wreck, since Shelton was 100% at fault and in failing to award damages to Double J Distributing Company.,

State Farm, as uninsured motorist carrier for Double J, also answered the appeal and asserted that its Double J State Farm auto policy # 78 4305-B10-18A paid $4,355.90 to Johnston on his medical expenses. Double J sought to be credited for that payment should this court assess any more fault against Shelton. Double J also objected to the assessment of costs against it. In spite of filing the answer to the appeal, State Farm (as Double J’s UM insurer) did not file a brief. Therefore, its answer to this appeal is considered abandoned. Uniform Rules of Courts of Appeal 2-8.6.

In Cosby v. Holcomb Trucking, Inc., 2005-0470 (La.9/6/06), 942 So.2d 471, 479, the supreme court discussed appellate review of factual findings:

Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. In order to reverse a fact finder’s determination of 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. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. However, where documents or objective evidence so contradict the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
(Citations omitted.)

j 7This record and the evidence and testimony contained therein provide reasonable factual bases for the trial court’s factual findings. The trial court was not clearly wrong is assigning 80% of the fault to Shelton, who stated he saw his light turn yellow when he was in the intersection. Shelton admitted he did not see Johnston’s car until he heard the impact. Notwithstanding Shelton’s testimony that his car struck the side front bumper of the Johnston car, the trial court accepted the testimony of the investigating officer and Johnston along with the physical evidence that the impact struck the rear driver’s side door on Johnston’s car, which spun into the pole damaging the front side bumper.

We find meritless Johnston’s assertion that Shelton should have been found 100% at fault. Neither driver was as careful as he should have been. Johnston was properly assigned 20% of the fault for his negligence in failing to see Shelton in time to avoid the crash. Prior to the wreck, Johnston saw Shelton’s vehicle and tried to take evasive action. The damage was on Johnston’s driver’s side rear door and on Shelton’s right (passenger side) front bumper. The trial court reasonably found that Johnston had almost cleared the intersection when struck by Shelton. Shelton’s complaints that the trial court erred in finding neither street had priority is without merit. As revealed by the testimony and found by the trial court, the collision was in the eastbound, southernmost lane in the intersection at which point both streets and the entire intersection constituted portions of U.S. Highway 79.

| ¿Credit to State Farm for Medical Payments to Johnston

We find no merit in the complaint of Shelton and his insurer, State Farm, that the trial court erred in failing to give Shelton and State Farm a credit for the $4,335.90 in medical payments made by Double J’s insurance policy on the vehicle Johnston drove. A tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. O’Connor v. Litchfield, 2003-0397 (La.App. 1st Cir.12/31/03), 864 So.2d 234.

The supreme court stated in Louisiana Dept. of Transp. and Development v. Kansas City Southern Ry. Co., 2002-2349 (La.5/20/03), 846 So.2d 734, that under the collateral source rule, the payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer. Among the public policy concerns supported by the collateral source rule are that the defendant should not gain an advantage from outside benefits provided to the plaintiff independently of any act of the defendant. The collateral source rule promotes tort deterrence and accident prevention. Absent the collateral source rule, injured parties would be discouraged from purchasing insurance or pursuing other forms of reimbursement available to them.

Under the collateral source rule, State Farm as Shelton’s insurer would not be entitled to a credit against medical payments made to Johnston from another insurer to which Double J paid a premium to protect the operators of its vehicles. The coincidence that both drivers had State Farm ^insurance should not work as a windfall to Shelton and his insurer, simply because Johnston also had benefit of a State Farm policy purchased by Double J. The trial court did not err in denying State Farm’s request for a credit for the medical payments made under Double J’s policy protecting Johnston.

General Damages

Shelton and his insurer, State Farm, assert that the trial court abused its discretion is awarding Johnston $25,000 in general damages, subject to the 20% reduction for Johnston’s fault. The trial court has great discretion in assessing damages. For an appellate court to change an award for general damages, the record must clearly reveal that the trial court abused its broad discretion in making the award based upon the facts and circumstances peculiar to the case and the individual under consideration. To correctly determine whether an award is excessive, the appellate court must determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact. Hayes v. State Farm Insurance Co., 40,649 (La.App. 2d Cir.4/20/06), 928 So.2d 742.

The defendants characterized Johnston’s injuries as a left eye bruise and mild chest wall pain with only three doctor visits and no physical restrictions. In the opinion of Shelton and State Farm, general damages to Johnston did not exceed $3,500.

The parties stipulated that Dr. William Mark Haynes, a board-certified family physician, was an expert in family medicine. Two days |inafter the May 22, 2004, accident, Dr. Haynes saw Johnston, who reported the wreck and complained of drowsiness, dizziness, and chest wall pain. Dr. Haynes’s diagnoses were chest wall contusion and a closed head injury for which he ordered a CAT scan. Following that test, Dr. Haynes ordered an MRI due to a benign calcified mass unrelated to the accident and because the test “might prove further” in Johnston’s symptoms, difficulty in concentrating, blurred vision, dizziness, and generalized weakness. His neurological exam was normal. Johnston had a large bruise on his left arm near the shoulder and a resolved bruise that remained significantly dense under the left eye. Dr. Haynes continued the anti-inflammatory medication initially and prescribed oral narcotic pain medicine.

Dr. Haynes stated that Johnston had multiple contusions and abrasions along with post-concussion syndrome resulting from the wreck. On June 1, Dr. Haynes found weight loss and fatigue, eye blurring and pain, neck pain and stiffness, bruising, nausea, anxiety and insomnia, headache, dizziness, joint pain, stiffness and swelling, and back pain all attributed to the accident. On June 22, 2004, Johnston had a followup visit for post-concussion syndrome and unrelated thumb problems. On July 8, 2004, Dr. Haynes prescribed sleep medication for the post-concussion syndrome and pain medication for an unrelated knee injury.

On June 30, 2005, Dr. Haynes discussed the post-concussion syndrome for which Johnston continued to have symptoms of headaches, weakness, and dizziness. In his opinion, post-concussion syndrome has an indefinite course and could certainly be within that time frame. While Dr. I iiHaynes hesitated to say the symptoms were more probably than not related to the accident, he did say “it was definitely documented in my thinking at the time that it was related to it.” Dr. Haynes stated that Johnston had a history of ongoing musculoskeletal pains which were definitely increased by the wreck, although it was difficult to separate what was chronic and what was wreck-related. The doctor stated Johnston continued to have bouts of pain which was consistent with post-concussion syndrome and that he had ongoing discoloration below his eye. At Johnston’s last visit to Dr. Haynes before trial on May 12, 2006, Dr. Haynes had no discussion or treatment of post-concussion syndrome.

On cross-examination, the doctor stated that at the July 8, 2004, visit, the discussion of the post-concussion syndrome was limited to finding Johnston was slightly improved. The doctor did not document placing any physical restriction upon Johnston due to the accident nor did he make any referrals to other doctors. No visits concerning post-concussion syndrome were documented from June 22, 2004, until June 30, 2005. Dr. Haynes reported that most symptoms for post-concussion syndrome are not treated but watched to see if referrals for further treatment are necessary. The doctor refused to characterize Johnston’s symptoms are “relatively mild” and said his contusion and concussion were “significant.” He also opined that Johnston was honest in relating his symptoms.

The trial court found that Johnston suffered past and present pain and suffering and loss of enjoyment of life. Johnston continued to suffer from pain and depression at trial. The trial court noted that the symptoms could Impossibly be attributed to other causes but found they “remain a legacy of the collision.” Moreover, he had facial discoloration remaining and lacked pre-accident physical vigor.

Dr. Haynes diagnosed Johnston with post-concussion syndrome and noted that those symptoms could last a long period of time. Johnston still had symptoms consistent with post-concussion syndrome over a year after the wreck. Johnston’s medical records revealed plaintiff had a prior history of musculoskeletal pain and depression. It is well settled that the wrongdoer takes his victim as he finds him and is responsible for all natural and probable consequences of the tort. If the defendant’s conduct aggravated a preexisting condition, the victim must be compensated. Hayes v. State Farm, supra. Dr. Haynes clearly stated that Johnston’s symptoms were aggravated by the wreck.

Viewing the evidence in the light most favorable to Johnston, the $25,000 general damages award, while generous, was not an abuse of the trial court’s broad discretion. Notwithstanding his medical history of similar symptoms, Johnston, characterized by his doctor as honest and believed by the trial court, sustained significant bruising, lasting discoloration below his eye, and symptomatic post-concussion syndrome which increased his symptoms and decreased his energy. The trial court was not clearly wrong in awarding Johnston $25,000 in general damages (less 20% attributable to his fault).

| yJTohnston’s Other Claims

The totaled Metro was owned and insured by Double J. As previously noted, Double J did not appeal or answer the appeal. Therefore, complaints related to that entity are not before the court. Even if those claims had been properly raised, the trial court correctly found insufficient evidence to support awards for business losses to Double J, which presented no business, tax, or other financial records. Likewise, lack of Johnston’s personal tax returns left Johnston’s claim for personal financial loss unsupported.

DECREE

The judgment of the trial court is affirmed in all respects. Costs of the appeal are assessed to the defendants.

AFFIRMED.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Gregg McKINNEY, Appellant.
    No. 42,126-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2007.

      Lavalle B. Salomon, Monroe, for Appellant.
    William Robert Coenen, Jr., District Attorney, Penny W. Douciere, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

L Gregg McKinney entered a no contest plea to simple arson causing damage in excess of $500, obstruction of justice, and malfeasance in office. The trial court sentenced McKinney to 15 years at hard labor, a fine of $2,000, and restitution of $21,000, for the simple arson conviction. McKinney received a sentence of 5 years at hard labor on the obstruction of justice conviction and 5 years at hard labor and restitution of $409 for the malfeasance in office conviction. The trial court ordered that all three sentences be served concurrently and that he be given credit for time served. McKinney seeks review of his sentence. We affirm.

Facts

As the result of events which occurred during McKinney’s term as Chief of Police of Delhi, Louisiana, the state originally charged him with aggravated arson, five counts of obstruction of justice, conspiracy to distribute marijuana, twenty-six counts of malfeasance in office and theft. On August 18, 2006, McKinney entered an Alford plea pursuant to a written plea agreement. In exchange for the dismissal of twenty-five charges and a reduction in the charge regarding arson, McKinney entered a plea of no contest to the reduced charge of simple arson, one count of obstruction of justice and one count of malfeasance in office. The plea agreement also provides that the imposed sentences would run concurrently. The sentence length imposed for each offense was subject to the discretion |¡>of the trial court after a pre-sentencing investigation. McKinney also agreed to resign from office effective the date of the plea and to notify the Louisiana Secretary of State that he would not seek re-election.

The state and McKinney agreed to submit transcripts of the preliminary examination, a copy of the investigative case report, a fire investigation report and evidence relating to the obstruction of justice claims. From this body of evidence relating to the charges, it is revealed that McKinney was investigated after concerns developed over his spending large sums of the town’s money on the purchase of illegal drugs for narcotics investigations. Also, McKinney hampered the District Attorney’s efforts for the production of narcotics evidence for court. Additionally, the investigation revealed a large amount of traffic tickets being written by the Delhi Police Department. Finally, an investigation occurred regarding the suspicious fire in McKinney’s office at the Delhi Police Department.

The facts show that a fire originated in McKinney’s office at approximately 5:30 a.m. on July 29, 2005. A report issued from the fire marshal’s office ultimately determined that the fire was the result of arson in which an accelerant, paint thinner, had been used. According to the report, the burn patterns on the wall were consistent with arson, and a combustible material had been poured on the couch in the office. From approximately 1:30 a.m. to 2:00 a.m. on the morning of the fire, police personnel observed McKinney placing personal items from his office into his truck. After McKinney left, an on-duty police officer heard a noise and discovered the fire. A Delhi Police drug informant revealed that McKinney told him that |she was going to burn the office to hide evidence of his wrongdoing. Within hours before the fire, defendant sent a letter, an email, and a series of text messages to his estranged wife, in which he threatened to kill himself and claimed that it would be her fault if he did. In one of the text messages, defendant wrote “paint thinner everywhere.”

While in the process of removing debris from McKinney’s office, investigators discovered that evidence from five separate narcotics cases had been placed in McKinney’s office at his instruction. In each of those cases, the evidence had been submitted to the crime lab for analysis and had tested positive for marijuana. Several evidence bags which had not been touched by fire or water evidenced that some of the marijuana had been removed as the bags had been cut open with a sharp instrument. McKinney was the only person with a key to his office.

Additional investigation showed that without proper legal authority, McKinney opened a bank account in the name of the Delhi Police Department. The account was illegal because it had not been declared to the city for proper audit. Evidence established that $1,650 had been removed through use of an ATM card and that McKinney was the only person who had access to the account through the card. Further, the account was closed because it had been overdrawn.

Further investigation also revealed that money collected through traffic fines had not been remitted to the town of Delhi and had apparently been kept by McKinney. Upon comparison of the two receipt books normally utilized for traffic collections, investigators discovered that money |4from 37 tickets, a total of $7,786, had not been remitted to the town of Delhi. Of those 37, the envelopes for 19 were found in McKinney’s desk drawer during the investigation of the fire. The money from those 19 envelopes, a total of $4,479, was missing.

The investigators also discovered that on three separate occasions, search warrants were executed by the department and approximately $3,000 was confiscated during the searches. The confiscated money was not returned after the cases were dismissed. Additional discovery revealed that McKinney had ordered a Delhi police officer to make “money stops” of drivers traveling to work. The officer was ordered to stop the driver, issue a ticket for driving while suspended, collect the money for the fine, issue a receipt, and then let them go. McKinney ordered the officer to give him the money collected for the purchase of drugs for narcotics investigations. When the officer suspected that the practice was improper, he began documenting it. The money obtained through this practice was never recovered.

Documentation showed that the town of Delhi had provided the police department approximately $11,895 for “buy money” to be used in narcotics investigations. Town officials did not receive any of the money back, and previously believed that the narcotics bought with this money had been burned in the fire.

A drug informant gave a statement claiming that McKinney was giving him marijuana from the police department evidence locker to sell for the purchase of crack cocaine that was supposed to be placed back into | ¡-^evidence. The informant stated that because Chief McKinney was “short on some of the drugs” he needed the informant to sell marijuana to buy crack cocaine. McKinney supposedly gave the informant six bags of marijuana from the evidence room which the informant sold to an individual. When a Delhi police officer subsequently stopped the individual for suspicion of drug possession, McKinney showed up at the scene of the arrest and the drugs from that arrest were never recovered. The informant told investigators that he purchased approximately $8,000 worth of cocaine over the past year for the police department. He claimed to have made his narcotics purchases without supervision and stated that he would place the narcotics in a container on top of his trash can where McKinney would later retrieve it. The informant also told investigators that McKinney became angry with him for purchasing powder cocaine instead of crack cocaine on one occasion and had him “cook” the powder cocaine into crack cocaine.

After considering this evidence and a pre-sentence investigation report, the trial court sentenced McKinney to concurrent maximum sentences of 15 years at hard labor for simple arson, 5 years at hard labor for obstruction of justice, and 5 years at hard labor for malfeasance in office with credit for time served.

Discussion

McKinney protests the imposition of maximum sentences for each crime. He complains that the imposed sentences are constitutionally excessive and that the trial court did not adequately consider mitigating circumstances and failed to articulate an adequate factual basis for the | ^sentence imposed or adequately consider an alternative or significantly less harsh sentence. Specifically McKinney argues that he was no differently situated from any other public officer charged with malfeasance in office and that he is not the worst of offenders. He contends that his actions, as a first offender, were the result of emotional and substance abuse problems that led to a breakdown in his personality and behavior. McKinney argues that his crimes were not the product of circumstances likely to recur because he is no longer in law enforcement and that with proper mental health care and substance abuse treatment he could be restored as a productive member of society. Thus he urges that he should have been given a suspended sentence with home incarceration and mandatory mental health treatment.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641, 643. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family |7ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049, 1051-52 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, 753, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Bonanno, 384 So.2d 355, 358 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/01/00), 754 So.2d 392, 394, writ denied, 00-1467 (La.2/02/01), 783 So.2d 385. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App. 2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991). Further, a substantial advantage obtained by means of a plea bargain, such as a reduction of charge where the evidence shows that the defendant was guilty of a more serious offense, is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App. 2d Cir.2/27/02), 811 So.2d 176, 179, citing State v. Smack, 425 So.2d 737 (La.1983), State v. Jackson, 27,056 (La.App. 2d Cir.6/21/95), 658 So.2d 722.

The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829, 831 (La.1981). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958, cert. denied, Cook v. Louisiana, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). While given wide discretion to impose sentence within the statutory limits, the sentence imposed by the trial court should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7, 16, citing State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982); State v. Hardy, 39,233 (La.App. 2d Cir.1/26/05), 892 So.2d 710, 712-713. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, 674 So.2d at 959.

At the sentencing hearing, the trial court noted the terms of the plea agreement, the contents of the pre-sen-tence investigation report, the details of defendant’s personal family history, and the details of defendant’s educational and employment history. In so doing, the trial court found that |9“[t]he defendant had a normal childhood and solid work record in both civilian and law enforcement work prior to his arrest for these charges.” The trial court reviewed the many letters of support from friends and family explaining defendant’s contributions to his family and community. The trial court took note of the letters from defendant’s present wife, children, and stepchildren, who expressed their need for defendant’s financial and emotional support.

Before imposing the sentence, the trial court specifically noted that it had considered the contents of the pre-sentence investigation, the mitigating factors presented by defendant, and the sentencing guidelines of La.C.Cr.P. art. 894.1. In reviewing mitigating factors, the trial court noted that defendant had no prior criminal history, a good work history, and was a respected law enforcement officer before suspicion of the present crimes arose. The trial court considered that imprisonment would pose a financial and emotional hardship on defendant’s family and that McKinney possessed an extensive history of community service in addition to making monetary contributions to the less fortunate. The trial court also regarded the fact that incarceration would further harm the good reputation of defendant’s family and hinder his ability to participate in their lives.

In aggravation, the trial court noted that McKinney violated his oath of office as police chief and the public trust of law enforcement and the criminal justice system. The trial court considered that McKinney exposed others to physical harm when he set fire to his office at the police department and the danger posed to the firemen called to put out the fire. |10The trial court observed that the defendant used his position of power to commit the offenses and profited from the commission of these offenses. The town of Delhi suffered financial loss and loss of public confidence due to his conduct. The trial court found that defendant’s conduct was the result of circumstances likely to recur because of the continuing nature of these offenses which he committed over the course of several months. The trial court considered the benefit of the plea agreement which reduced McKinney’s potential sentencing exposure through the dismissal of several charges and the agreement of concurrent sentences. The trial court also noted that defendant had not compensated the victims for their loss of money, property, or reputation. The trial court concluded that as a high ranking law enforcement officer, McKinney was held to a higher standard of conduct and that his behavior warrants serious punishment.

Because of these aggravating factors, the trial court found that defendant posed an undue risk of committing another crime if allowed probation or a suspended sentence, that he was in need of correctional treatment or a custodial environment, and, that a lesser sentence would deprecate the seriousness of his crimes. Thus, a review of the record indicates that the trial court was cognizant of the sentencing considerations of La.C.Cr.P. art. 894.1. Moreover, the record clearly indicates that the trial court thoroughly considered the mitigating circumstances and that it articulated a detailed factual basis for the sentence imposed.

McKinney faced sentencing exposure for the simple arson conviction of not less than 2 years nor more than 15 years at hard labor. La. R.S. |n!4:52(B) For the obstruction of justice conviction, McKinney faced imprisonment for not more than 5 years, with or without hard labor. La. R.S. 14:130.1. Finally for the malfeasance in office conviction, McKinney had sentencing exposure of not more than 5 years, with or without hard labor. La. R.S. 14:134.

Initially, we note that the distinguishing element in the charged crime of aggravated arson, as opposed to simple arson, is the foreseeability of the endangerment of human life. This danger was present in the occupied public building to which defendant’s act of arson applied. Aggravated arson has a sentencing range of not less than six nor more than twenty years. La. R.S. 14:51. Therefore, the defendant received a substantial reduction in his exposure for the reduced arson charge. Further reduction resulted from the exclusion of the other charges regarding separate incidents of obstruction of justice, malfeasance, theft and drug-related violations. We find therefore that a substantial advantage was gained by McKinney as a result of the plea bargain.

Given the long period of time over which the defendant abused the power of his office and the multiple ways in which he did so, the facts of this ease are sufficient to qualify McKinney as the worst offender for each of these offenses. McKinney’s criminal conduct constituted an abuse of power that severely undermined the reputation of government, law enforcement, and the criminal justice system in a small town. Moreover, McKinney blatantly abused his position of authority to manipulate innocent 1 ^individuals for his personal gain and advantage. This additionally justifies the imposition of the maximum sentences for each offense of conviction.

McKinney’s request for a less harsh sentence with mental health and substance abuse treatment is rejected as he denied during his pre-sentence investigation having a substance abuse problem or any form of mental illness. In the light of these circumstances and the fact that defendant received a tremendous reduction in sentencing exposure through his plea agreement, the maximum sentence for these three offenses does not shock the sense of justice. Thus, the trial court did not abuse its discretion, and the sentences are not constitutionally excessive. McKinney’s convictions and sentences are affirmed.

AFFIRMED.

      . The plea was taken in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), which requires the establishment of a factual basis for the plea when a defendant protests his innocence but determines that a guilty plea is in his best interest.


text:
    Cynthia SMEBY, Plaintiff-Appellee v. John B. WILLIAMS, Jr., State Farm Mutual Automobile Insurance Company, and Rodney C. Griffin, Defendant-Appellant.
    No. 42,163-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2007.

      The Aubert Law Firm, by Christopher Joseph Aubert, James Philip Meyer, Cov-ington, for Appellants, John B. Williams, Jr., E.L. Burns Co., Inc. and Paccar Leasing Corporation.
    Robert Stephen Tew, Monroe, for Ap-pellee, Cynthia Smeby.
    Cotton, Bolton, Hoychick & Doughty, by David Paul Doughty, Rayville, for Appel-lee, Louisiana Farm Bureau Mutual Insurance Company.
    Philip Thomas Deal, for Appellees, Rodney C. Griffin & State Farm Mutual Automobile Insurance Company.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

11 John Williams, E.L. Burns Co., Inc., and Paccar Leasing appeal a judgment in which Williams was found solely at fault for an automobile accident between a phantom truck and a sports car carrying Cynthia Smeby and Rodney Griffin. We amend the judgment to allocate 40% of fault to the phantom truck driver, and affirm the amended judgment.

FACTS

John Williams was employed as a truck driver for E.L. Burns Co., Inc. (“Burns”). Late in the evening of February 6, 1998, Williams began a journey driving a tractor hauling a flatbed trailer from Shreveport to the East Coast. As Williams drove through Ouachita Parish eastbound on I-20 shortly after midnight, he lost control of his truck when he looked down to see what he had dropped onto the floor of the tractor. The truck went off the right side of the road and jackknifed, leaving the tractor blocking the outside lane and part of the inside lane, and the trailer stuck in the mud alongside the interstate. The point along 1-20 where the truck stopped was described by Williams as being on the incline of a hill. Two Ouachita Parish Sheriffs deputies arrived in their patrol cars and parked behind the truck, with their lights flashing. Williams estimated that these deputies arrived within five minutes of his accident.

Louisiana State Trooper Christopher Towell received a call about Williams’s stranded truck. Towell, who was east of Williams’s truck, drove | ¿westbound on I-20, exited 1-20 at Cheniere Road, entered eastbound 1-20, and then proceeded to the scene of the jackknifed truck. Towell estimated that Williams’s truck was located approximately 1.2 miles east of the Cheni-ere entrance ramp. Towell parked his patrol vehicle behind the deputies’ cars. Williams thought Towell arrived five minutes after the deputies. Williams was ticketed for careless operation.

Cynthia Smeby and Rodney Griffin were on a date the evening of February 6. After attending a Monster Truck show at the Monroe Civic Center, where they consumed alcoholic beverages, the couple went to Smeby’s home. According to Griffin, the couple then left Smeby’s house in West Monroe to go to Griffin’s house in Monroe. Smeby recalled that they left her house to go to another bar. As Griffin drove Smeby’s recently-purchased Trans Am on the Cheniere Road overpass crossing 1-20, he saw an emergency vehicle with lights flashing heading eastbound on 1-20 and decided to follow it.

Griffin entered eastbound 1-20 and accelerated to the speed limit of 70 mph. He steered the Trans Am to the inside lane in order to pass an 18-wheeler in the outside lane. After the Trans Am had passed about half of the 18-wheeler, the truck began moving into the inside lane without activating his turn signals. Griffin took his foot off the accelerator and steered the Trans Am as far to the left as he could go without going onto the |sgrass. Griffin and Smeby had slightly different recollections of what happened next. Griffin recalled that after the truck had moved halfway into the inside lane, it stopped moving to the left momentarily, but then suddenly came completely into the inside lane and made contact with the Trans Am. Smeby recalled that the truck came into the inside lane, went back into the outside lane, and then came back completely into the inside lane and knocked the Trans Am off the road. In any event, the Trans Am entered the median and collided with a tree, resulting in moderate injuries to Griffin and Smeby. The driver of the phantom 18-wheeler never stopped his vehicle.

When Towell learned of the Griffin crash, he went to that site to assist. He performed a nystagmus gaze test on Griffin and did not think Griffin was impaired. Towell estimated that there was a distance of 300 to 400 yards from where the Trans Am left the roadway to the location of Williams’s truck.

Smeby filed suit against Griffin, his liability insurer State Farm, and Williams. Griffin filed a cross-claim against Williams. Smeby amended her petition to add Burns and its insurer, Reliance National Insurance Company.

Smeby’s insurer, Farm Bureau Mutual Insurance Company, filed a petition for intervention against Williams, Burns, and Reliance. Farm Bureau alleged that it had paid approximately $57,890 to Smeby and Griffin |4in medical payments, collision payments, and UM coverage payments under its policy.

Griffin, State Farm, and Farm Bureau filed a motion for summary judgment against Smeby on the ground that Griffin was not at fault in causing the accident. Smeby did not oppose the motion as she had settled with Griffin and Farm Bureau. However, Williams, Burns and Reli-anee/LIGA opposed the motion for summary judgment. The trial court granted the motion and dismissed Griffin, State Farm, and Farm Bureau as parties, with Farm Bureau reserving its rights to a subrogation claim and Griffin reserving his demands as plaintiff. This court affirmed the judgment in Smeby v. Williams, 37,845 (La.App. 2d Cir.12/10/03), 862 So.2d 381.

Following a bench trial on the merits, judgment was rendered in favor of Smeby and Griffin and against Williams, Burns, and Paccar Leasing. The trial court concluded that when Williams fell asleep at the wheel of his truck, that set in motion a chain of events which created a sudden emergency for the phantom truck that caused the accident involving Smeby’s vehicle. Accordingly, Williams was found 100% at fault for the accident. Smeby was awarded $50,000 plus medical damages, and Griffin was awarded $40,000 plus medical damages. The court also found that Farm Bureau was entitled to $50,000 for its subrogation claims against Williams, Burns, and Paccar Leasing, consisting of $25,742.38 in property ^damages, $10,000 in medical payments, and $14,257.62 in UM payments. Williams, Burns, and Pac-car Leasing appeal.

DISCUSSION

Appellants’ only contention is that the trial court erred in assigning all of the fault for the Trans Am accident to Williams and none of the fault to the phantom truck driver. In its reasons for the judgment, the trial court noted that the phantom truck driver encountered a sudden emergency as a result of Williams’s truck blocking part of eastbound 1-20.

In Clark v. Natt, 32,548, pp. 2-3 (La.App. 2d Cir.12/8/99), 748 So.2d 584, 586, writ denied, 2000-0084 (La.3/17/00), 756 So.2d 1142, this court discussed the sudden emergency doctrine:

Under the sudden emergency doctrine, one who finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to adopt in order to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence. Said another way, if a motorist has exercised ordinary care as required by law (or the highest degree of care as may be required), and has nevertheless inflicted injury on another, the accident is said to be inevitable, for which no liability attaches.

Citations omitted.

La. R.S. 32:141(C) states, “[t]he driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.”

| ¡Williams claimed that after his truck left the road, he set out three reflective triangles, one 100 feet behind the truck, one beside the truck, and one 100 feet ahead of the truck. Towell did not remember seeing the reflective devices that Williams claimed he had set out. Towell commented, “The only thing there was his cab lights and stuff were illuminated, but that was it.”

Williams stated that after his truck was stranded, he left the engine running and his headlights and taillights on, with the headlights pointing at a northeast angle, so they were facing away from eastbound traffic. Towell thought the front of Williams’s cab was facing the inside lane, with the headlights pointing toward the median. The hazard lights were on, as were five amber clearance lights on top of the cab.

The tractor and trailer both had some reflective qualities. The turn signal lights also acted as reflectors. There were three small reflectors along the front, middle, and rear of a metal side beam on the trailer, and there were small reflectors on the back of the trailer. Williams admitted that the center and rear of the trailer would have been off of the shoulder, with the front of the trailer on the shoulder. The tractor was white, and the trailer was red.

Towell estimated that Williams’s truck was located approximately 1.2 miles east of the Cheniere entrance ramp. Towell described the Cheniere entrance as being on a slight rise, and at the top of the hill, he could see the flashing lights from the deputies’ patrol cars. However, Towell also stated that he could not see Williams’s truck until he topped the last hill before it. |7According to Towell, Williams’s truck was located slightly up the incline of a hill. Towell did not remember any lighting in the area.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

Based upon our review of this record, we conclude that the trial court was clearly wrong in assigning all of the fault for the accident involving the Trans Am to Williams. It is without doubt that Williams set the chain of events in motion by allowing his tractor-trailer to become jackknifed in the first place. However, because the phantom truck driver is not available to testify as to the circumstances léading up to his decision to abruptly change lanes, the sudden emergency doctrine is not available to cleanse him of his [ pliability in causing the Trans Am to leave the interstate and enter the median.

We acknowledge that even under the best of circumstances, it would have been difficult for a driver in the oncoming eastbound traffic to know exactly what danger was awaiting him on 1-20 after the Cheni-ere Road entrance. Nevertheless, when the phantom truck driver passed the Che-niere entrance, he would have been approximately 1.2 miles from Williams’s truck and still going up an incline. At that moment, he most certainly would have been aware of the night sky being lit up from the flashing lights of three patrol cars. Although he would not have known the reason for the presence of emergency vehicles, or more importantly, where these emergency vehicles were located, he was under a duty to proceed cautiously and slow to a safe speed as he approached the unknown danger ahead.

Towell estimated that it was approximately 2/10ths of a mile from the top of the last hill to where Williams’s truck was located on the next hill. At that point, the phantom truck driver would have had visible confirmation of the exact danger ahead, ie., the lane in which he was driving was blocked. However, if the phantom truck driver had proceeded cautiously up until that point, he would have been in a better position to stop his vehicle or to merge safely into the inside lane.

Based upon our review of the record, we conclude that Williams was 60% at fault for the accident involving the Trans Am, and that the phantom |fltruck driver was 40% at fault. The judgment is amended to reflect these percentages of fault.

DECREE

With each party to bear its own costs, the judgment is AMENDED, and as AMENDED, AFFIRMED.

      . E.L. Burns Co., Inc., leased the truck from Paccar Leasing Corporation.

      . Williams denied that he told State Trooper Chris Towell that he had fallen asleep at the wheel.

      . Williams described these hills as long and sloping.

      .Smeby claimed that Griffin drank four beers at the truck show, and then had several mixed drinks at a bar. Trio's, which they visited before going to Smeby's house. Griffin stated that he drank one mixed drink at the truck show, and the couple never went to Trio’s before going to Smeby's home. Smeby testified that Griffin had told her after the accident not to tell anyone that he had been drinking because he did not want his insurance to be affected.

      . Griffin testified that the rear wheels of the trailer struck the right rear quarter panel of the Trans Am. A photo of the Trans Am taken at the accident scene shows white paint on the body above the rear wheel on the passenger side. Towell believed that the white paint was from the phantom truck.

      . The Louisiana Insurance Guaranty Association was substituted as a defendant in place of Reliance after Reliance was placed in receivership.

      . Although Paccar Leasing had not been named as a defendant in the suit, by stipulation it agreed that it was a defendant as to all claims brought by Farm Bureau, Griffin, and Smeby without the necessity of being named in the suit.

      . The issue of Griffin's liability was resolved in the earlier judgment granting the motion for summary judgment, which this court affirmed.

      . The outside lane was blocked not only by Williams's truck, but also by the three patrol cars which were apparently parked one behind the other in the outside lane.

      . The phantom truck driver never activated his turn signals before merging into the inside lane.


text:
    Donald DYKE, Plaintiff-Appellee v. TIME WARNER CABLE, Defendant-Appellant.
    No. 42,216-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2007.

      Rabalais, Unland & Lorio, by John J. Rabalais, Laurie W. Maschek, Covington, for Appellant.
    C. Bryan Racer, Monroe, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

1 n This case involves the acceleration payments provision of the Workers’ Compensation Act, La. R.S. 23:1333, that operates because of an employer’s wilful refusal to pay pursuant to a judgment awarding benefits. The employer appeals an Office of Workers’ Compensation judgment accelerating supplemental earnings benefits and awarding the employee a lump sum of $183,612, representing 10 years of benefits, offset by a prior payment of back benefits. The trial court found a wilful failure of the employer to pay weekly wage benefits pursuant to the original judgment. The employer’s first weekly payment to the employee was made nine weeks after rendition of judgment and three weeks after the running of appellate delays. For the following reasons, we reverse.

Facts

Donald A. Dyke (“Dyke”) worked for Time Warner Cable (“TWC”) as a construction tech for 22 years when his left knee was injured on June 1, 2004. The accident twisted his knee causing tears that required surgical repair. The initial Claim Form 1008 was filed by Dyke in May 2005, and alleged that no wage or medical benefits had yet been paid.

After trial in March 2006, the Workers’ Compensation Judge (‘WCJ”) ruled in Dyke’s favor and rendered judgment on June 21, 2006. The judgment awarded “supplemental earnings benefits from December 7, 2004, to present at the rate of $429 per week, plus interest from the date of judicial demand until paid.” Prospectively, the judgment recognized Dyke’s entitlement to continued supplemental earnings benefits (SEB) in the | ^amount of $429 per week, “until such time as he may return to employment.” Lastly, the judgment awarded “all reasonable and necessary medical treatment associated with the knee injury claimant ... sustained, including the surgical procedure recommended .... ” The judgment awarding SEBs is now final and no longer disputed, but serves as the basis for the acceleration claim now at issue. TWC asserts in brief that it determined not to appeal the judgment and appellate delays ran on July 28, 2006.

On" August 22, 2006, TWC tendered $41,806.86 to Dyke. Dyke and his counsel received the payment and signed a satisfaction of judgment stating:

The undersigned ... hereby acknowledge receipt of the sum of $41,306.86 in full .settlement and discharge of the Judgment signed in this matter in favor of the Employee, Donald Dyke and against the Employer, Time Warner Cable; and further acknowledge that weekly indemnity benefits have now begun at the rate of $429.00, and that medical treatment with Dr. Brown has been authorized; ...

The next day following the satisfaction of judgment, Dyke’s counsel filed a motion to accelerate benefits under La. R.S. 23:1333. It alleged that TWC failed to pay six successive installments as the indemnity benefits became due after the June 21, 2006 judgment.

Upon the trial of this matter on September 18, 2006, Dyke was the only witness who ■ testified. He identified two checks that he received from ACE USA insurance company. The first was dated September 5, 2006, for $858, referencing payment “For 08/22/06 Thru 09/04/06.” The second check was dated September 7, 2006, for $429, showing payment “For | -¡09/05/06 Thru 09/11/06.” Dyke claimed he received the checks on September 13, 2006. In his brief testimony, Dyke also acknowledged receipt of the check for “back benefits” on August 22, 2006. However, no explanation was given regarding the calculation of the $41,306.86 payment which Dyke received.

At the conclusion of the hearing, the trial court posed the following question to TWC’s counsel:

Q All right. I have a really simple question. Why is it you all didn’t pay the benefits?
A This is my understanding, Your Hon- or. When the trial — I did not do this trial. Mr. McNabb, who is no longer with our firm, did. Okay. The judgment came up. There were issues of appeal, whether or not they were going to take a suspensive appeal, a devolutive appeal; that decision had to be made. They decided against the appeal. That’s my take on it. So there was some time for investigation on whether or not that was going to happen. Also — That’s my understanding, that they were looking at issues of appeal and whether or not they were going to go forward with that.

The trial court found “that the statutory and jurisprudential requirements for acceleration of benefits have been met” and granted Dyke’s request therefor. The judgment accelerating Dyke’s SEBs of $429 per week for the maximum ten-year period, in the amount of $183,612, was signed on October 2, 2006. TWC appeals the judgment.

Discussion

The Louisiana Workers’ Compensation Act (La. R.S. 23:1021, et seq.) provides in Section 1333(A), as follows:

If the employer against whom an award awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the award shall immediately 14become due and exigible and the award shall become executory for the whole amount; but if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.

Section 1338 allows acceleration of worker’s compensation benefits under certain circumstances. Four statutory elements must be satisfied prior to accelerating a prior award of weekly benefits. They include: 1) an “award awarding compensation” against the employer, 2) insolvency or failure to pay six successive installments as they become due, 3) installments not yet payable under the award; and 4) the employee is not adequately protected by insurance and receiving payments thereunder. Atwood v. Ewing Timber, Inc., 36,732 (La.App. 2d Cir.1/29/03), 836 So.2d 1199, writ denied, 03-0888 (La.5/16/03), 843 So.2d 1134. Since Section 1333 imposes a very harsh penalty and since forfeitures are not favored in the law, jurisprudential interpretation of the statute has added two more requirements which must be met before the penalty can be invoked. Lytell v. Strickland Transp. Co., Inc., 373 So.2d 138 (La.1979); Duncan v. State, Dep’t of Transp. and Development, 615 So.2d 305 (La.1993). Those requirements include a showing that the employer’s failure to pay the installments was a wilful refusal to pay and that the employee made demand on the employer for past due payments. Mason v. CCC Express, Inc., 32,759 (La.App. 2d Cir.3/1/00), 754 So.2d 352, writ granted, 00-0918 (La.6/16/00), 763 So.2d 610. The penalty may not be invoked unless the employer fails after judgment to pay weekly compensation for six successive weeks, except of course that a suspensive appeal may suspend the commencement of this period until the judgment becomes executory. Lytell v. Strickland Transp. Co., Inc., supra.

TWC argues that prior notice of any delinquency for the payment of benefits was never given by Dyke. Dyke and his counsel received a sizeable payment on one day, August 22, without objection, and then on the next day, filed this claim for acceleration.

The WCJ made two rulings pertinent to TWC’s argument. First, the WCJ found that TWC’s failure to pay was wilful, for the stated reason that “I can’t find any justification for not paying this man benefits.” Second, the WCJ stated the “demand was made when the claimant filed his 1008 form back [on] May 19th, 2005.” The second finding does not qualify as a demand by Dyke for payment of benefits under the June 21, 2006 “award” of compensation which must be the focus of this Section 1333 claim.

As cited from the jurisprudence above, Louisiana courts have placed a protective gloss on Section 1333 to temper the harshness of its forfeiture penalty. It is the claimant’s burden to prove the wilful withholding of benefits by the employer and to demonstrate that notice of such delinquency was given in the form of a demand for payment. The two are related because if the employer ignores the notice and continues in its failure to pay benefits ordered under a prior court award, the wilfulness of the delinquency is indicated eliminating the possibility of a negligent failure to pay.

In this case, the record and the WCJ’s ruling show that no evidence, circumstantial or otherwise, proved TWC’s wilful nonpayment. To the | ficontrary, the evidence shows that on August 22, Dyke received payment for nine weekly SEB installments accruing after the June 21 judgment without any assertion by him that TWC’s failure to have paid those benefits previously was wilful. Dyke’s receipt for those benefits went further and acknowledged “full settlement and discharge” of the June 21 judgment ordering those weekly payments. Aside from the lack of written notice of TWC’s delinquency as a prerequisite to Dyke’s institution of this action, the evidence shows that TWC’s obligation for payment of wage benefits to Dyke was current on August 23, 2006.

The most that can be said to support Dyke’s claim is that on August 22, TWC had indeed allowed over eight weeks to pass after the June 21 judgment without paying weekly benefits. After that judgment became final and no longer subject to suspensive appeal on July 28, Dyke was clearly entitled to weekly benefits and TWC was over five weeks delinquent. Dyke could have demanded payment then. Nevertheless, Louisiana jurisprudence has held that “the acceleration clock should [not] tick against a defendant during the period that he is given to decide whether or not to seek relief from the judgment.” Gallow v. Lormand, 509 So.2d 655, 656 (La.App. 3d Cir.1987). In Allor v. Belden Corp., 410 So.2d 1184 (La.App. 3d Cir. 1982), writ denied, 412 So.2d 1101 (La.1982), the date of the finality of the judgment or, in that case the final date for requesting a rehearing from the ^Louisiana Supreme Court, was viewed as the starting time for the six-week period.

In the present case, within a relatively short time after appellate delays ran and without any demand from Dyke, the parties settled for the payment of obligations recognized by that judgment, including weekly SEB payments through August 22. The parties’ course of dealing after the appeal delay negates any inference that TWC’s conduct was a “wilful refusal” to pay SEBs and instead implies good faith communications and negotiations resulting in the August 22 “discharge” payment. Moreover, Dyke’s “settlement and discharge” acknowledgment should not afford him any further claims arising from the asserted tardiness of TWC in paying SEBs through August 22. La. C.C. art. 3071; Jerome v. Duggan, 609 So.2d 1119 (La.App. 2d Cir.1992).

Conclusion

Accordingly, we find that considering the appellate delays after the June 21 judgment, the lack of notice of TWC’s failure to pay SEBs, and the parties’ August 22 settlement, La. R.S. 23:1333’s harsh penalty of forfeiture for TWC’s inaction before August 22 was not warranted. The judgment of the WCJ is reversed. Costs are assessed to Donald Dyke.

REVERSED.

WILLIAMS, J., concurs.

      . All evidence at trial indicated that weekly SEBs were paid through August 22, 2006, before the institution of this action on August 23. At trial, Dyke's evidence showed three weeks’ additional benefits paid by TWC through September 11, 2006. The remaining 428 weeks, between September 11, 2006 and December 7, 2014, for which benefits were accelerated by the WCJ’s ruling, produced the $183,612 (428 x $429/week) judgment now at issue.

      . See La. R.S. 23:1310.5(C).