text:
    STATE of Louisiana, Appellee v. Anthony T. SCOTT, Appellant.
    No. 42,871-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2007.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Geary Stephen Aycock, Assistant District Attorney, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   DREW, J.

| lAnthony T. Scott was convicted at jury trial as charged of second degree murder, aggravated burglary, and armed robbery. He was sentenced to a term of life imprisonment at hard labor without benefits for second degree murder.

Scott was ordered to serve 20 years at hard labor for aggravated burglary, and 30 years’ hard labor without benefits for armed robbery. The sentences for these two crimes were ordered to be served concurrently, but both of these lesser sentences were ordered to be served consecutively with the life imprisonment sentence. The defendant appeals his conviction for second degree murder and his sentences. He does not appeal his convictions for the other crimes.

FACTS

Jimmy Raus, 70 years old, was a collector, and his home contained caches of watches, knives, cigarette lighters, ducks, butterflies, and other items. On August 29, 2005, he was beaten to death, suffering 19 separate blunt force trauma impact sites. A 911 call was made from Mr. Raus’ residence that day by the defendant and a juvenile, Dewayne Campbell. When the police arrived, they found the body and three people: the defendant; the defendant’s girlfriend, Doneshia Gory; and Campbell. Mr. Raus had been stabbed or cut 41 times.

Scott, Campbell, and Gory were taken to the Sheriffs Office for questioning. During his first interview, the defendant said he, Campbell, and Gory stopped by Mr. Raus’ house, discovered Mr. Raus had been attacked, and called 911.

12Later, Scott gave a recorded statement in which he admitted that he:

• committed the burglary, though he denied killing Mr. Raus;
• broke into the Raus residence to look for cash;
• used wooden sticks in attempting, without success, to pry open a window;
• entered through a different unlocked rear window;
• remained in the house a few hours;
• found and put on gloves;
• took an air pump and a bag/carrying case with handles, in which they placed rolls of coins, a two dollar bill, watches, and other items;
• tried to open a trunk with a kitchen knife when Mr. Raus came home;
• was yelled at by Mr. Raus,
• attempted to escape out a window when Campbell began hitting Mr. Raus with a vase;
• saw Mr. Raus fall to the hallway floor, then try to stand;
• saw Mr. Raus strike Campbell a couple of times;
• observed Campbell stab Mr. Raus in the chest with a knife twice;
• told Mr. Raus that he was sorry and then stabbed him in the chest once;
• went through Mr. Raus’ pocket and took some money;
• took off his gloves and discarded them inside the house;
• broke out the glass of the back window and crawled out;
• saw Campbell leave the house through the back door when he (the defendant) exited through the window;
• observed that Mr. Raus was still alive when he left; and
• returned to the house 30 minutes later and called 911.

^Defendant denied that he cut or injured himself inside the home, and he explained a cut on his hand by maintaining that he was injured when he went back to the home to check on Mr. Raus.

The defendant provided a DNA sample and allowed the photographing of his cut hands, his clothing, and his shoes.

The crime scene investigation revealed that:

• the back door was unlocked but closed;
• the rear window of the home had been broken from the inside;
• blood samples from that window sill and from a five dollar bill taken from Scott were determined to have come from the defendant;
• a pair of bloody blue latex gloves was found near the body;
• a blood-stained work glove and a bloody filet knife were found near the window from which the defendant exited after the attack;
• a black-handled knife with bent tip was recovered from another room;
• the locks of the trunks had visible damage; and
• another brown-handled knife was found on the floor of the doorway between the kitchen and living area.

Officers recovered from Campbell’s house an air pump and a bag containing numerous wrist watches, a two dollar bill, assorted change and cigarette lighters, including Mr. Raus’ personal lighter.

After the convictions, a presentence investigation report was ordered. At a sentencing hearing, the trial court allowed the daughter of Mr. Raus’ best friend to state how all their lives have been negatively affected by the brutal and senseless murder. The defendant did not speak.

|4The trial court, in an extensive and well-reasoned explanation:

• stated that it considered the factors set forth in La. C. Cr. P. arts. 883 and 883.1 regarding concurrent and consecutive sentences, together with the sentencing considerations and aggravating and mitigating factors contained in La. C. Cr. P. art. 894.1;
• meticulously and laboriously set forth those factors and considerations for the record;
• reviewed the facts of this case, and impact on victims;
• remarked that though Scott was young (21 at the time of sentencing), he had been arrested 67 times between the ages of 12 and 17;
• sentenced the defendant as outlined above; and
• denied an oral motion to reconsider sentence.

SUFFICIENCY

Defendant argues that:

• the state failed to prove beyond a reasonable doubt that the defendant had specific intent to kill or inflict great bodily harm upon the victim;
• the only definitive evidence adduced by the state regarding who killed Mr. Raus was the defendant’s statement, which only admitted stabbing Mr. Raus once, in the chest, bending the knife;
• some of Mr. Raus’ wounds were superficial;
• Mr. Raus died of a combination of injuries;
• he did not cut Mr. Raus’ throat; and
• he broke out a window to escape.

Although the record does not reflect that defendant filed a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Henson, 38,820 (La.App. 2d Cir.9/22/04), 882 So.2d 670; State v. Green, 28,994 (La.App. 2d Cir.2/26/97), 691 So.2d 1273.

| s0ur law on a sufficiency review is well settled.

The defendant was charged by amended bill of information with second degree murder, contrary to the provisions of La. R.S. 14:30.1 A(l). To support a conviction of second degree murder, the state must show that the defendant had specific intent to kill or inflict great bodily harm. State v. Brooks, 505 So.2d 714 (La. 1987), cert. denied; State v. Ruffins, 32,870 (La.App. 2d Cir.12/10/99), 748 So.2d 614. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the proscribed criminal consequences to follow his act or his failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied; State v. Ruffins, supra.

To support a conviction as a principal to specific intent second degree murder, the state must show that the defendant had the specific intent to kill |fior inflict great bodily harm; the mental state of one defendant may not be imputed to another defendant. State v. Cedrington, 98-253 (La.App. 5th Cir.12/16/98), 725 So.2d 565, writ denied, 1999-0190 (La.6/4/99), 743 So.2d 1249, writ denied, 1999-0431 (La.6/25/99), 745 So.2d 1182.

Under all the circumstances shown, an intent to kill might be reasonably inferred from the intentional use of a deadly weapon to produce injuries involving serious risk of death. State v. Butler, 322 So.2d 189 (La.1975); State v. Jordan, 276 So.2d 277 (La.1973); State v. Lee, 275 So.2d 757 (La.1973). Specific intent to kill can be inferred by the intentional use of a deadly weapon such as a knife or a gun. See State v. Templet, 2005-2623 (La.App. 1st Cir.8/16/06), 943 So.2d 412, writ denied, 2006-2203 (La.4/20/07), 954 So.2d 158.

In State v. McAllister, 366 So.2d 1340 (La.1978), the court found that the jury’s determination at the first trial that a co-defendant killed the victim in the “heat of passion” did not prevent the state from charging the other defendant with first degree murder.

A review of this record under the Jackson standard supports the defendant’s conviction of second degree murder, including the specific intent to kill or inflict great bodily harm. The defendant, by his own admission, stabbed Mr. Raus in the chest with a knife; an intent to kill might be reasonably inferred from the intentional use of a deadly weapon to produce injuries involving serious risk of death. See State v. Butler, supra; State v. Jordan, supra; State v. Lee, supra. The lesser burden of specific |7intent to inflict great bodily harm is sufficient for a first degree murder conviction. The totality of the evidence easily supports this conviction.

CONSECUTIVE SENTENCES

Defendant claims that consecutive sentences here are unjustified. Our law on review of consecutive sentences is well settled. Defendant received three sentences:

• 20 years (out of a possible 30 years) at hard labor on the aggravated burglary conviction, which sentence was ordered to be served concurrently with the armed robbery sentence, but consecutively with the second degree murder sentence;
• 30 years (out of a possible 99 years) at hard labor without benefits on the armed robbery conviction, which sentence was ordered to be served concurrently with the aggravated burglary sentence, but consecutively with the second degree murder sentence; and
Is* life imprisonment at hard labor, without benefits, on the second degree murder sentence, to be served consecutively with the other two concurrent sentences.

We find no abuse of the trial court’s broad discretion in its sentencing. The trial court was very thorough in explaining its sentencing. The defendant committed three horrific crimes, and running two of these three sentences concurrently was more than ample mercy for this defendant, who showed no mercy whatsoever towards this elderly victim.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

      . He later said that Campbell was still in the house when he left.

      . Expert testimony indicated that only one knife caused any of the wounds suffered by Mr. Raus.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

      . A trial judge has wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App. 2d Cir.1/26/05), 892 So.2d 710. The 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, cert. denied. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

      When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single cause of conduct are not mandatory, and it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Johnson, 42,323 (La.App. 2d Cir.8/15/07), 962 So.2d 1126; State v. Boudreaux, 41,660 (La.App. 2d Cir.12/13/06), 945 So.2d 898; State v. Robinson, 33,921 (La.App. 2d Cir. 11/01/00), 770 So.2d 868.
      A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra; State v. Boudreaux, supra; State v. Mitchell, 37,916 (La.App. 2d Cir.3/03/04), 869 So.2d 276, writ denied, 04-0797 (La.9/24/04), 882 So.2d 1168, cert. denied; State v. Maxie, 30,877 (La.App. 2d Cir.8/19/98), 719 So.2d 104. Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the potential for defendant’s rehabilitation, and whether defendant has received a benefit from a plea bargain. See State v. Maxie, supra.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Brian Wesley SIGNAL, Individually and Carrie J. Signal, Individually and on Behalf of her Minor Children, Cecilia Smith and Bailey Smith, Plaintiff-Appellee, v. Edward Lee ANDERSON, Economy Premier Assurance Company and City of Shreveport, Defendant-Appellant.
    No. 42,646-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2007.

      Cook, Yancey, King & Galloway, by Scott Louis Zimmer, Shreveport, for Appellant, Economy Premier Assurance Company.
    Klotz, Simmons & Brainard, by Harry D. Simmons, Brandon Trey Morris, Shreveport, for Brian Wesley Signal, Carrie J. Signal, Cecilia Smith, and Bailey Smith; and Intervenor-Appellee, United Services Automobile Association.
    The Malone Law Firm, L.L.C., by Dan-nye Wayne Malone, Shreveport, Mary Ellen Winchell, for Appellee/City of Shreveport.
    Before STEWART, DREW and MOORE, JJ.
   DREW, J.

|,In this auto accident case, the defendant insurer appeals a judgment granting a JNOV motion on the issue of damages. Plaintiffs have answered the appeal seeking an increase in the damages awarded by trial judge. We affirm.

FACTS

On the afternoon of October 15, 2004, Brian Signal was driving his four-door Ford pickup east on Jordan Street in Shreveport. His passengers were his wife, Carrie Signal, who was in the front seat, and Bailey Smith and Cecilia Smith, her two daughters from a prior marriage, who were sitting in the back seat. At the same time, a Hyundai car driven by Edward Anderson was proceeding southbound on Coty Street.

As the Signal vehicle approached the intersection of Jordan and Coty, Brian slowed the truck down to drive around a barricade in the middle of the intersection. When he was about 5-10 feet from the intersection, Brian suddenly noticed the approach of Anderson’s vehicle and that it did not appear that Anderson was going to stop. Despite Brian’s efforts to veer, Anderson’s car hit the middle of the driver’s side of the Signal truck in a T-type collision. The impact, which occurred in the southeast quadrant of the intersection, caused the Signal truck to be pushed onto its side and to roll against a telephone pole before ending up on all four wheels.

| aBrian, individually, and Carrie, individually and on behalf of her minor children, Cecilia and Bailey, filed suit against Anderson, Economy Premier Assurance Company, and the City of Shreveport. United States Automobile Association, Brian Signal’s insurer, intervened in the suit.

The claims were bifurcated, with the trial judge deciding the claim against Shreveport. The jury found that Edward Anderson was 100% liable for the accident and awarded the following damages:

• Brian received $5,389.36 for past medical expenses, and $3,000.00 for pain and suffering.
• Carrie received $4,335.33 for past medical expenses, and $3,000.00 for pain and suffering.
• Cecilia received $1,024.80 for past medical expenses, and $1,000.00 for pain and suffering.
• Bailey received $963.72 for past medical expenses and $1,000.00 for pain and suffering.

None of the plaintiffs received damages for loss of consortium or for loss of enjoyment of life.

On October 6, the trial court rendered judgment in accordance with the verdict. The trial court also assessed $20,800.03 as damages to United States Automobile Association for its subrogation claim, and $1,000.00 to Brian Signal for the deductible on his policy.

Plaintiffs filed a motion for JNOV or, in the alternative, a motion for new trial, on the issue of damages. They also filed a motion for additur. The trial judge granted the motion for JNOV and increased the pain and suffering awards to $10,000.00 for Brian Signal, to $15,000.00 for Carrie Signal, to $2,500.00 for Cecilia Smith, and to $2,500.00 for Bailey Smith. |sThe trial judge also awarded damages for additional claims made by each plaintiff:

• Brian received $2,500.00 for loss of consortium and $2,000.00 for loss of enjoyment of life.
• Carrie received $3,000.00 for loss of enjoyment of life and $2,500.00 for loss of consortium.
• Cecilia received $500.00 for loss of enjoyment of life and $500.00 for loss of service and society.
• Bailey received $500.00 for loss of enjoyment of life and $500.00 for loss of service and society.

The awards for past medical expenses were not adjusted.

Economy has appealed, raising two assignments of error. They first argue that the trial court erred when it declined to include a requested interrogatory on unavoidable accidents on the jury verdict form. They next contend that the trial court erred in granting the JNOV motion. Plaintiffs have answered the appeal, arguing for increases in the amounts awarded to Brian for pain and suffering and to Carrie for pain and suffering and past medical expenses.

UNAVOIDABLE ACCIDENT INTERROGATORY

The doctrine of unavoidable or inevitable accident reheves a person of liability as long as the person invoking the doctrine shows that he was in no way to blame for the happening. Seals v. Morris, 410 So.2d 715 (La.1981); Davis v. Smith, 35,117 (La.App.2d Cir.10/2/01), 796 So.2d 765, writ denied, 2001-2887 (La.1/25/02), 807 So.2d 250. Quoting 214Blashfield, Automobile Law and Practices 101.13 (Rev.3d Ed.1979), the supreme court in Seals, supra, explained the doctrine:

As a corollary of the rule for determining legal responsibility for negligence, if a motorist or other traveler has exercised ordinary care as required by the common law (or the highest degree of care as may be required), and has nevertheless been the occasion of inflicting injury on another, the accident is said to be inevitable, for which no liability attaches. Unavoidable accident is not an affirmative defense but merely negatives negligence.

Id., 410 So.2d at 719.

Economy contends that the accident was unavoidable because the stop sign facing southbound traffic on Coty at the intersection was down at the moment the accident occurred. Deborah Houston, who lived near the intersection at issue, insisted that the stop sign was down at the time of accident. She testified that it had been down for several days before the accident, and that she had called the Department of Streets and Drainage to report the problem. Houston said the sign was not put back up on the day of the accident.

Houston’s testimony was contradicted by the testimony of several employees of Shreveport’s Department of Traffic and Engineering. Lisa Jenkins stated that there was no record of a report of the downed street sign in the system used by Shreveport to register complaints and requests from citizens. Mike Boswell is the supervisor of the sign crews and barricade | Kcrews. He stated that the sign crews try to drive down each neighborhood street at least once every two weeks looking for problems, and if the sign crew sees a downed stop sign, they fix it immediately. Boswell testified that the date of the accident was the first time that the city learned of the downed stop sign.

John Garrett was a traffic control technician in the Department of Traffic and Engineering. Part of his job is to inspect street barricades almost every day and look for anything in the area of the barricade that could affect public safety. Garrett set up a barricade at the intersection in June of 2004. He took a photo of the barricade on September 13, and the photo shows the stop sign in its proper position. Garrett inspected the barricade at 11:03 a.m. on October 15 and took a picture. He stated that the stop sign would have been in his field of vision when taking the photo, and if the stop sign had been down, he would have noted it in his daily report and called a sign truck. After Garrett received a call from the Shreveport Police Department at approximately 4:44 p.m. that the stop sign was down, he returned to the scene and secured the stop sign.

There was no credible eyewitness testimony that the stop sign was down immediately prior to the accident. Officer Terry Sanders, who investigated the accident, determined that there was a non-functioning |^traffic control device, ¿a, the stop sign. Although the stop sign was down after the accident, it may have been knocked down from impact during the accident itself. Because Anderson did not testify, the fact-finders did not have the benefit of hearing his explanation as to how the accident occurred.

Brian thought Anderson had been speeding. Officer Sanders estimated that Anderson had been driving carelessly because the severe damage to the Signal vehicle indicated that he was probably speeding. Nevertheless, Officer Sanders did not write any tickets for speeding or careless operation. Officer Sanders did not find any skid marks or any indication that Anderson had attempted to stop before the collision. Kenneth Lerchie was driving behind the Signals at the time of the accident. Lerchie thought that Anderson was driving close to the speed limit.

The jury heard an instruction on the doctrine of unavoidable accident. Nevertheless, Economy was not entitled to an interrogatory on this doctrine, because Anderson did not testify as to why he was not responsible for the accident. Accordingly, the doctrine was not applicable in this case. We find no error in the trial court’s refusal to include an interrogatory about the doctrine on the jury’s verdict form.

JUDGMENT NOTWITHSTANDING THE VERDICT

The law on JNOV was discussed at length in Smith v. State, Dept, of Transp. & Development, 2004-1317 (La.3/11/05), 899 So.2d 516. The supreme court stated:

[7La.Code of Civil Procedure art. 1811 provides for the trial court’s use of JNOV. A JNOV may be granted on the issue of damages or the issue of liability or it may be granted on both issues. Davis v. Wal-Mart Stores, Inc., 00-0445, p. 4 (La.11/28/00), 774 So.2d 84, 89.

The grounds upon which the district court may grant a JNOV are not specified in Article 1811; however, this court has set forth the standard to be used in determining when a JNOV is proper as follows:

[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

Trunk v. Medical Center of Louisiana at New Orleans, 04-0181, pp. 4-5 (La.10/19/04), 885 So.2d 534, 537 (citing Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99). The JNOV strict criteria [are] predicated on the rule that "when there is a jury, the jury is the trier of fact." Trunk at p. 5, 885 So.2d at 537.

When reviewing a district court’s grant of a JNOV, an appellate court must initially determine whether the district judge erred in granting the JNOV by employing the above-mentioned criteria in the same manner as the district judge in deciding whether to grant the motion.

VaSalle v. Wal-Mart, Stores, Inc., 01-0462, p. 11-12 (La.11/28/01), 801 So.2d 331, 339. In other words, the appellate court must determine whether the facts and inferences adduced at trial point so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary finding of fact. Id. at p. 12, 801 So.2d at 339. If the answer is in the affirmative, then the appellate court must affirm the district court’s grant of JNOV. Joseph at p. 5, 772 So.2d at 99. However, if the appellate court determines that | ^reasonable minds could differ, then the district judge erred in granting the JNOV and the jury verdict should be reinstated. Id.

Smith, 2004-1317 at pp. 12-13, 899 So.2d at 524-5.

The supreme court has further explained that once the trial judge has found JNOV is warranted regarding the amount of damages awarded, the trial judge must then make a de novo award of damages:

Once a trial court has concluded that a JNOV is warranted because reasonable men could not differ on the fact that the award was either abusively high or abusively low, it must then determine what is the proper amount of damages to be awarded. In making this determination, the judge is not constrained as the courts of appeal are to raising (or lowering) the award to the lowest (or highest) point which is reasonably within the discretion afforded that court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976)....
The trial judge is in a better position to make a damage assessment than is an appellate court. The trial judge hears the testimony, views the evidence, and is able to evaluate the credibility of the witnesses. Once the jury verdict is set aside under the strict JNOV standards, the trial court is then the trier of fact. It should not be limited by the same constraints placed upon an appellate court reviewing a damage award. The trial judge should make an independent assessment of the damages and award a proper amount of compensation under the facts of the particular case.

Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 833-4 (La.1991).

If we determine that the JNOV was warranted, we must then review the amounts awarded by the trial judge for an abuse of discretion. Anderson, supra. Plaintiffs in this matter were awarded both general and special damages.

The trier of fact has much discretion when assessing damages in cases of offenses, quasi offenses, and quasi contracts. La. C.C. art. 2324.1. | flBefore an appellate court may disturb an award for general damages, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert, denied. The discretion afforded the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages. Eddy v. Litton, 586 So.2d 670 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1203 (La.1992).

It is only after an articulated analysis of the facts discloses an abuse of discretion that resort to prior awards in similar cases is proper. Dixon v. Tillman, 29,483 (La.App.2d Cir.5/7/97), 694 So.2d 585, writ denied, 97-1430 (La.9/19/97), 701 So.2d 174. The proper procedure for examining whether the award is excessive is to 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. Likewise, to determine if an award is inadequate, the evidence must be viewed in the light most favorable to the defendant. Manuel v. State Farm Mut. Auto. Co., 30,765 (La.App.2d Cir.8/19/98), 717 So.2d 277.

CARRIE SIGNAL’S DAMAGES

Pre-Accident Medical Condition

Because Economy argues that Carrie had preexisting medical conditions that involved her back, our review of her medical treatment necessarily begins prior to the accident. In 1999, Carrie was diagnosed with |intraverse myelitis. It was also believed that she had fibromyalgia. In January of 2001, neurologist Dr. Ben Nguyen thought the myelitis was probably causing hand numbness and paresthesia. A thoracic MRI performed on May 14, 2002, showed mild disc desiccation in the mid thoracic levels, but no disc herniation was found. Carrie went to the emergency room (“ER”) on April 12, 2003, with complaints of mid thoracic pain and spasms. On July 23, 2003, Carrie called the medical clinic at Barksdale Air Force Base (“BAFB”) to inquire about seeing a specialist to treat her severe back pain. She went to the ER later that day complaining of recurring back pain, with the pain now in her lower back and feeling the worst it had been.

On July 28, 2003, Carrie was treated by a Physician Assistant (“PA”) at BAFB. She reported severe back pain that measured between eight and nine on a ten-point scale, and the PA found palpable lumbar spasms at L4-5. When Carrie called BAFB on September 4, 2003, it was noted that she had chronic lower back pain and was scheduled to visit a pain clinic later that month.

Carrie’s medical records reflect that in July of 2003, she received authorization to visit a pain management clinic for care of her chronic low back pain. Reports from BAFB dated October 9 and November 18, 2003, stated that Carrie had been treated at LSU’s pain clinic for chronic low back pain and needed long term management. Carrie could not recall seeing anyone at the LSU pain clinic.

| t iPost-Accident Medical Treatment

Carrie was transported by ambulance to the ER after the Friday accident. She complained of pain between her shoulder blades. The diagnosis upon discharge was thoracic back pain and musculoskeletal pain. Carrie followed up with her doctor at BAFB the following Monday for treatment of shoulder stiffness and lower back soreness.

Dr. Thomas Johnson, a chiropractor, began treating Carrie on October 27, 2004. His diagnosis was moderate whiplash, moderate sprain of the lumbar spine, moderate migraine headache, and moderate sprain of the thoracic spine. She rated her back pain at the time as an eight on a ten-point scale.

Dr. Johnson, who testified as an expert in chiropractic medicine, believed that Carrie reached maximum medical improvement (“MMI”) as of December 27, 2004. He explained that what he meant by MMI was more accurately described as maximum chiropractic improvement. He felt that he had gone as far with conservative therapy as he could, despite the fact that Carrie was still having low back pain. He thought she should see a specialist for treatment.

Palpation during the last visit showed mild tenderness in the cervical region and no tenderness in the lumbar region. Dr. Johnson’s report from lathis last visit stated that her conditions had resolved. He explained that what he meant by resolved was that she did not have any apparent symptoms during that particular examination, when he thought she was having a good day. Dr. Johnson recognized that her condition may become better or could worsen during the course of a day.

Carrie was involved in another motor vehicle accident on January 31, 2005. Dr. Richard Kamm, a general medicine physician, examined Carrie on February 8, 2005. No soft tissue swelling or muscle spasm in the back was found by Dr. Kamm on palpation, but he did note there was increased muscle tension. Carrie had restricted ranges of motion in the back that were consistent with her reports of moderate tenderness in the cervical, thoracic, and lumbar regions of the back. His impressions were that she had headaches and bilateral musculoligamentous strains of the cervical, lumbar, and thoracic regions, and that the headaches and strains were related to the accident at issue and had been exacerbated by the 2005 accident. Dr. Kamm also noted that Carrie reported intermittent paresthesia in the right lower extremity and both upper extremities that had been present since the October 2004 accident. Dr. Kamm prescribed a muscle relaxant and anti-inflammatory drug, and he advised Carrie to limit her physical activities, apply cold to affected areas, and continue massage therapy.

When Carrie returned to Dr. Kamm on February 24, she told him that there had been no change in her back, but her headaches had become more frequent and severe. Dr. Kamm noted that her ranges of motion were slightly better. His findings on palpation remained the same. She reported |1Rthat she still had paresthesia in the upper extremities and right lower extremity, and that it sometimes extended to her left lower extremity. She also reported that she had stopped taking the anti-inflammatory medicine and had stopped receiving massage therapy. The treatment plan was modified to discontinue the anti-inflammatory, adjust the dosage of the muscle relaxant, and add a headache medicine. Carrie was encouraged to be evaluated at the Center for Integrative Medicine (“CIM”).

Carrie was examined by Dr. Kamm again on March 24, 2005. Her complaints about her back remained the same. She said her headaches had worsened and had become more frequent. She reported having intermittent paresthesia in her all extremities. Dr. Kamm found that her ranges of motion had significantly improved since her first visit, and there was no swelling, spasms, or increased tension in the back muscles upon palpation. It was noted that Carrie had stopped seeing a chiropractor, had not started physical therapy, and had not gone to the CIM. She was also not using any medication. Dr. Kamm thought that by objective measures her condition had improved and she was where he expected her to be without her following his treatment plan. At this examination, Carrie declined various | ^therapeutic alternatives that were discussed with her, and she stated that she did not want to take medication.

Dr. Kamm examined Carrie for the last time on May 11, 2005, when she told him that her physical condition remained unchanged except for some new complaints. He found that the ranges of motion in her back were normal again. Dr. Kamm’s impression was that the back strains had objectively resolved. Carrie once again stated that she had decided not to use any medications or undergo the treatment options mentioned by Dr. Kamm.

Dr. David Adams performed an electro-diagnostic examination of Carrie on August 1, 2005, and the findings were negative. When Carrie was treated at BAFB on September 19, 2005, she reported having headaches as well as pain in the cervical and lumbar spine that radiated into her extremities.

On November 3, 2005, Carrie underwent a lumbar spine MRI, which the radiologist thought revealed a very mild broad-based disc bulge at L3-4, and a broad-based disc bulge at L4-5. There was mild disc dessi-cation without significant disc bulge at L5-Sl. The radiologist remarked that there |1Bwas no significant spinal canal narrowing or neural foraminal narrowing at any level.

Dr. Marco Ramos, a neurosurgeon, first met with Carrie on December 1, 2005. In her history, she reported that after the October accident, she experienced progressive onset of low back pain that radiated to the posterior aspect of both lower extremities. The November MRI was not available for review at this examination. Dr. Ramos did not think that Carrie had symptoms of fibromyalgia or traverse myelitis at the time. Based upon his neurological exam (which showed a limited range of motion, loss of sensation, and weakness of the dorsiflexor of the foot) and Carrie’s history, Dr. Ramos believed that she had a disc problem at L4-5.

Dr. Ramos’s notes from his December 20. 2005, examination of Carrie reflect that she continued to complain of persistent low back pain that radiated to the posterior aspect of both lower extremities. Acknowledging that the radiologist thought Carrie’s lumbar MRI was normal, Dr. Ramos noted that the MRI showed a herniated nucleus pulposus at L4-5 and to a lesser degree at L5-S1. Dr. Ramos recommended surgery, but also told Carrie that an alternative was to continue the conservative route of physical therapy and pain management, but she said that had not helped.

On January 4, 2006, Dr. Ramos performed a hemi-laminectomy at L4-5 and L5-S1 bilaterally, and a microdiskectomy at L4-5 and L5-S1 on the right side. He also explored the L5-S1 and L4-5 discs on the left side. Dr. Ramos thought the surgery confirmed his interpretation of the MRI as | ^showing herniated discs. Dr. Ramos stated that he did not find any evidence of any degenerative process, nor had he seen any when he had looked at the MRI.

Dr. Ramos thought the surgery was successful. The records show that her recovery was uneventful for the most part. Several days after the surgery, she reported to a PA at BAFB that she had a rash over her entire body and was in severe pain. The next month, she told Dr. Ramos that she was experiencing muscle spasms. In April, Carrie complained to Dr. Ramos that she felt worse than before the surgery because of muscle spasms, leg pain, and symptoms radiating to her right back. However, the next month, she reported to Dr. Ramos that she was doing well other than having occasional aching in the low back. In July of 2006, Carrie told Dr. Ramos that she had pain across the lower back and into the hip, but it was not radiating to the lower extremities as it had prior to surgery.

Dr. Ramos’s prognosis was that Carrie may have discomfort in the lower back, but eventually the symptoms should subside. He thought her work activities would prolong her recovery, and that she might need some physical therapy, muscle relaxants, and analgesics.

Opinions About Carrie’s Condition

Dr. Carl Goodman, an Orthopedic Spine Surgeon, examined Carrie’s medical records on behalf of Economy. Dr. Goodman believed that Carrie only sustained cervical and lumbar strains and sprains in the October 2004 accident. Reviewing the lumbar MRI from November of 2005, Dr. h7Goodman found evidence of degenerative disc changes at L4 and L5 with mild mid-line disc bulges at those levels, and mild spinal stenosis at L4-5. He did not see any soft disc herniation, so he thought it was more probable than not that Carrie did not develop significant disc herniation because of the accident.

Testifying as an expert in the field of orthopedic spine surgery, Dr. Goodman explained that by degenerative disc changes, he meant the discs had lost some water as part of the natural aging process. The loss of water can lead to a bulging disc. Degeneration of a disc can cause back pain, and if it pinches a nerve, leg pain. Dr. Goodman noted that prior to the 2004 accident, Carrie had been referred to pain management, which is reserved for those suffering from chronic pain, for her low back pain.

It was felt by Dr. Goodman that Dr. Ramos’s surgery was to treat a chronic condition, and that the lumbar degenerative disc changes, bulges, and mild stenosis were present prior to that accident. Dr. Goodman believed that it was more probable than not that Carrie was having symptoms caused by this degenerative condition prior to the 2004 accident. He pointed to her pre-accident complaints of lower back pain as indications of the degenerative disc changes becoming symptomatic.

Dr. Goodman observed that with medication, and perhaps physical therapy and activity modification, Carrie should have recovered in three to [issix months. He added that even without any treatment or therapy, a person with cervical and lumbar strain and sprain will usually get well anyway. He did not consider Carrie’s condition as one requiring surgical intervention.

Dr. Ramos testified as an expert neurosurgeon. He opined that it was more likely than not that the herniated discs at L4-5 and L5-S1 were caused by the trauma of the 2004 auto accident. He also thought that her condition progressively worsened after this October 15 accident until she came to see him. It did not change his opinion that Carrie was involved in another accident three months later because Carrie told him that her symptoms began after the 2004 accident and then progressed.

Dr. Ramos disagreed with Dr. Goodman that the MRI reflected degenerative changes. Moreover, the disc conditions encountered by Dr. Ramos during the surgery were not degenerative. In reference to the disc dessication shown in the 2002 thoracic spine MRI, Dr. Ramos stated that a single disc showing dessication does not indicate that the patient has degenerative changes, because while dessication is a component of degeneration, on its own it is not diagnostic of degenerative changes. He also added that disc dessication on its own cannot cause a disc to bulge or become herniated.

Dr. Kamm testified that when he first treated Carrie, he thought her condition was trivial and that she would mostly recover in about six weeks |1flif she followed the treatment course. He did not think she would have the complaints that she presented with on March 24, 2005, but he was not surprised in light of her failure to take medications or follow any of the treatment alternatives suggested to her. Based upon his objective findings, he certainly did not expect her to have a bulging or herniated disc. Dr. Kamm believed that her soft muscle injuries were caused by the October 2004 accident and exacerbated by the second accident.

Dr. Kamm did not recall Carrie ever mentioning the 2003 ER visits or her referral to the pain management clinic because of chronic back pain. He did not think the ER visits were significant, but he thought the referral to the pain management clinic was important for him to know so the treatments would not conflict.

Dr. Kamm testified that he would defer to Dr. Ramos’s conclusions regarding the MRI, the relation between the 2004 accident and the herniated disc, and the need for surgery. Dr. Kamm added that the medications and therapy alternatives would not have made much difference with her condition if she had a herniated disc.

Carrie testified that she began experiencing back pain a week or two after the 2004 accident, and it became progressively worse until she went to Dr. Ramos. She felt that Dr. Johnson’s treatment did not provide permanent relief, and her symptoms did not improve while under Dr. Kamm’s care. Carrie would not attribute any increased aches and pains or new complaints |j>nto the accident in January of 2005, but thought the second accident possibly made the pain she experienced in the morning feel a little worse.

Carrie contended that while she had back pain before the 2004 accident, it was experienced prior to July of 2003, and it was a different pain and involved muscle spasms different than what she experienced after the accident. She attributed the earlier pain to her myelitis and fibro-myalgia. Dr. Goodman agreed that fibro-myalgia can cause back pain.

Carrie asserted that she was asymptomatic at the time of the 2004 accident. She asserted that her last big flare-up was in July of 2003. Dr. Kamm never found evidence of fibromyalgia or myelitis during his examination.

Carrie’s myelitis apparently was not a significant consideration when determining exactly what injuries were sustained by Carrie in the accident at issue. Dr. Ramos explained that traverse myelitis affects the muscles and spinal cord, which stops at about level L2 of the spine. Carrie’s myelitis was in the area of her cervical spine. Dr. Goodman was not considering the myelitis when he referred to Carrie’s chronic lumbar condition. In fact, Dr. Goodman stated that he did not want to answer questions about myelitis because he did not know anything about that condition.

Carrie considered the surgery to have been successful, and she thought that she had mostly recovered. She still had some pain, but she believed that could be attributed to her activity level and general healing time. She developed a rash after surgery, and the rash left little “stains” all over her body, with “stains” on her torso the worst.

| ⅞1 Carrie worked as a physical therapy assistant at the time of trial. At the time of the accident, she was pursuing a degree as a Physical Therapy Assistant. She began her rotations in November of 2004 and finished the program on time in August of 2005. She formed her own rehabilitation company the following December.

Carrie stated that between the accident and her surgery, her housework, cooking, and personal responsibilities were affected as she was limited in any activity that involved bending, standing for a long time or sudden movement. She was rarely able to do housecleaning, so Brian had to do more of it when he could. She and Brian had not been married for a long time when the accident occurred, so it affected their intimacy. Brian stated that they were unable to use their party barge in 2005 as much as they normally would. Prior to the accident, they had used it three to four times per month, but they used it only three or four times during the entire summer of 2005.

JNOV

The jury awarded Carrie only $4,335.33 in past medical expenses even though she sought over $36,000.00 in such expenses. In doing so, the jury essentially found that an electrodiagnostic exam in August of 2005, the 2005 MRI, Dr. Ramos’s examination, and the surgery were not related to the injuries she sustained in the 2004 accident, but were related to a preexisting disc condition.

Based on this record, reasonable men could not differ that the amounts awarded for pain and suffering ($3,000.00), loss of consortium | ⅞¾($0), and loss of enjoyment of life ($0) were abusively low for the soft tissue injuries sustained by Carrie. Accordingly, the trial judge properly granted the JNOV. We also find that the trial judge did not abuse her broad discretion when awarding $15,000 for pain and suffering, $3,000 for loss of enjoyment, and $2,500 for loss of consortium to Carrie. We likewise find no abuse in the jury’s discretion to limit the award of past medical expenses to $4,335.33.

BRIAN SIGNAL’S DAMAGES

Brian was transported to the ER at Schumpert by ambulance, where he was treated for complaints of neck pain. When he was treated by a PA at BAFB on October 18, 2004, Brian reported that his neck and back were hurting and tight. Brian was treated by Dr. Thomas Johnson on October 25, 2004. Dr. Johnson diagnosed moderate whiplash, moderate sprain in the lumbar spine, moderate headache, and moderate restriction of motion in the thoracic spine. Dr. Johnson thought these injuries had been caused by the accident. After Brian underwent conservative chiropractic physical therapy and spinal correction, Dr. Johnson reported that Brian had reached MMI as of December 27, 2004.

Brian was again treated by the PA on January 7, 2005. His diagnosis was cervi-calgia and lower back pain, and he prescribed physical therapy, which Brian began at BAFB on January 21, 2005. He complained at therapy of low back and neck pain, and he said that he had experienced little improvement while being treated by Dr. Johnson. By March 15, 2005, 1 gjBrian reported that he had considerable improvement in his cervical spine, and his lower back pain had decreased to only intermittent pain. The therapist noted that Brian had made excellent improvement.

Brian testified that he thought of himself as being 90-95% back to normal in March of 2005, and was 95% back to normal at the time of trial. He began lifting weights and running again in June of 2005.

Brian contended that their sex life was affected by the accident because they were unable to have sex owing to her back pain after the accident. Carrie stated that Brian was not able to do as much repair work or yard work around the house because he was sore and stiff for quite a while.

We do not find that the trial judge was unwarranted in granting the JNOV, nor do we find that she abused her discretion in the amounts she awarded to Brian for pain and suffering, loss of consortium, and loss of enjoyment of life.

CECILIA AND BAILEY’S DAMAGES

Cecilia was eight years old and Bailey was five years old at the time of the accident. Brian testified that the girls were screaming immediately after the accident, and their faces had been cut from glass. He didn’t think Bailey had as many facial cuts as her sister. Carrie testified that the girls had minor scrapes from the broken glass and were emotionally upset. Both were transported by ambulance to the ER.

Bailey was first treated by Dr. Thomas Johnson on October 27, 2004. His diagnosis was mild to moderate sprain of the thoracic spine, and Immoderate restriction of motion in the cervical spine. He thought she had reached MMI as of November 24, 2004.

Cecilia was diagnosed with a head contusion at the ER. Dr. Johnson began treating Cecilia on November 1, 2004. His diagnosis was moderate migraine headaches. He thought she had reached MMI as of November 24, 2004.

Carrie thought both girls stopped complaining about physical pain about two weeks after the accident. However, the girls still become upset if their car stops suddenly or they hear a tire squeal. Brian did not think that either girl had any permanent scars, and he thought it was over a month before Cecilia was okay.

Based upon our review of this record, we find that the trial court was warranted in granting the JNOY after the jury awarded only $1,000.00 each to Bailey and Cecilia for pain and suffering, and made no award for loss of enjoyment of life and loss of service and society. We discern no abuse of discretion in the amounts the trial judge awarded to the two young girls.

CONCLUSION

For the foregoing reasons, the judgment is AFFIRMED at the costs of Economy Premier Assurance Company.

      . The vehicle was owned by Hugh Rinkle and insured by Economy Premier Assurance Company.

      . Brian Signal agreed that a tree partially obstructed his view of southbound traffic on Coty, and thought the same was true for a southbound driver on Coty.

      . The proposed interrogatory read, "Do you find by a preponderance of the evidence that this accident was unavoidable, and therefore no one was negligent?”

      . By "down,” Houston meant that the sign was leaning and almost touching the ground with the word "Stop” face down.

      .. TT ,. r. , . , , ,. , Houston testified m her deposition that she c- . .. . . 0 . . .r . . first noticed m September that the sign was down.

      . Jenkins stated that the system would sometimes not show a complaint about a stop sign because that is the sort of problem that would be taken care of immediately.

      . Boswell noted that his department sometimes receives calls from the Department of Streets and Drainage about downed stop signs.

      . The responding police officers had already , .. . ...... placed the sign upright m its hole, e °

      . The trial judge, who decided on the City's liability in this bifurcated trial, clearly stated that Houston was not a credible witness,

      . officer Sanders did not recall seeing the stoP siSn whei1 he had Patrolled the area Pr*or to accident.

      . She told the treating doctor that the pain was usually in her mid to upper back.

      . Carrie testified that she was referred to pain management at LSU, but she could not go because one of her daughters had an appointment at the same time, and she could not reschedule for a time that her insurer thought was appropriate.

      . X-ray of the thoracic spine showed no evidence of any acute traumatic abnormality.

      . X-rays of the cervical and lumbar spine showed no fractures, soft tissue pathology, or osseous pathology.

      . By then, she was rating the pain as a two on a ten-point scale.

      . Dr. Kamm recalled that Carrie explained that she had gone for a physical therapy evaluation and it had been recommended that she go to the Center for Integrative Medicine.

      .Carrie also stated that she had muscle weakness in her right upper extremity and muscle spasms in her right hand.

      . Carrie testified that Dr. Kamm had referred her to physical therapy at the Spine Institute, but the physical therapist there decided not to perform therapy on her.

      . It was noted that Carrie was waiting to be evaluated by a neurologist in Biloxi, Mississippi.

      . Her new complaints were of bilateral knee pain, and fainting and dizzy spells caused by the headaches.

      . Carrie told Dr. Kamm that she was waiting to be evaluated by Dr. Stephen Jaffe, a neurologist at the LSUHSC Neurology Clinic. Dr. Jaffe examined her on May 27, 2005. His impression was posttraumatic headache associated with a closed head injury and persistent cervical myofascial discomfort.

      . There was no evidence of ulnar neuropa-thy or carpal tunnel syndrome in either upper extremity, and no evidence of myopathy, neu-ropathy, or radiculopathy in any extremity.

      . Dr. Ramos was unaware that Carrie had not undergone physical therapy as suggested by Dr. Kamm.

      . He never examined Carrie.

      . Dr. Goodman stated that the loss of water would make a disc appear darker on an MRI.

      . Spinal stenosis is a degenerative condition that can also cause back and leg pain.

      . The 2002 thoracic spine MRI had shown degenerative disc change in the mid thoracic spine.

      . There was some agreement between Drs. Goodman and Ramos that a bulging disc is also a herniated disc, although Dr. Goodman considered a bulge to be a minor disc herniation.

      . Dr. Ramos agreed that the ligamentum flavum hypertrophy shown on the November 2005 lumbar MRI is another component of degenerative changes.

      .Dr. Kamm thought Carrie would recover in about six months if she did not follow any treatment plan.

      . Cervical and lumbar x-rays showed no apparent fractures or soft tissue or osseous pathology.


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

text:
    Patricia J. MIZE v. VAN METER, M.D. & ASSOCIATES and Eric R. Ehlenberger.
    No. 2007-CA-0616.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2007.
    Rehearing Denied Jan. 16, 2008.

      Scott E. Silbert, Silbert & Garon, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Thomas E. Loehn, Charles K Chauvin, Boggs, Loehn & Rodrigue, Metairie, LA, for Travelers Indemnity Company of Connecticut.
    Jaime M. Cambre, Kelly Cambre Bogart, Duplass, Zwain, Bourgeois Morton Pfister & Weinstock, Metairie, LA, for Van Meter, M.D. & Associates.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR.).
   MAX N. TOBIAS, JR., Judge.

11 From a judgment granting motions for summary judgment in favor of defendants, Van Meter, M.D. & Associates (“VMA”) and their insurer, Travelers Indemnity Company of Connecticut (“Travelers”), the plaintiff, Patricia J. Mize (“Mize”), appeals. For the reasons that follow, we affirm.

On 23 March 2004, Mize was working as a nurse in the emergency room at Tulane University Medical Center in New Orleans (“Tulane”). Mize alleged that Dr. Ehlen-berger approached her and, in a joking manner, placed his hands loosely around her neck, shook her and pretended to choke her. As a result, Mize claims to have suffered permanent and disabling injuries.

This case involves a personal injury suit brought by Mize against VMA, Travelers, and Eric Ehlenberger, M.D.(“Dr. Ehlen-berger”), arising out of an alleged intentional tort committed by Dr. Ehlenberger. This appeal only involves the granting of summary judgment in favor of VMA and Travelers.

At the time of the incident, VMA, a medical staffing agency, was under contract with Tulane to recruit and furnish emergency room physicians to Tulane. Dr. Ehlenberger was under contract with VMA to provide services to Tulane as an emergency room physician. Mize alleged in her petition that VMA is vicariously | ¡.liable for Dr. Ehlenberger’s action pursuant to the doctrine of respondeat superior, and that Travelers is liable as VMA’s insurer.

Both VMA and Travelers filed motions for summary judgment seeking dismissal on the grounds that Dr. Ehlenberger is an independent contractor for whose acts VMA is not responsible. Travelers further contends that because Dr. Ehlenber-ger is not an employee of VMA, he is not covered under the policy issued to VMA. On March 14, 2007, after hearing oral argument on the matter, the trial court granted summary judgment in favor of VMA and Travelers. In written reasons for judgment, the trial judge found that VMA was not vicariously liable for Dr. Ehlenberger because Dr. Ehlenberger was an independent contractor. The trial court further reasoned that because of his independent contractor status, Dr. Ehlen-berger was not an “employee” as defined under Travelers’ policy with VMA. From this judgment, Mize devolutively appealed.

We review the granting of the motions for summary judgment utilizing a de novo standard. Reynolds v. Select Properties, Ltd., 93-1480, p. 4 (La.4/11/94), 634. So.2d 1180, 1182.

The issue presented in this appeal is whether a master-servant relationship existed between Dr. Ehlenberger and VMA, thus rendering VMA vicariously liable for Dr. Ehlenberger’s actions.

Under the provisions of La. C.C. art. 2320, “[mjasters and employers are answerable for the damage occasioned by servants and overseers, in the exercise of the functions in which they are employed.” The concept established by this article is called “vicarious liability.” However, vicarious liability does not apply when an independent contractor relationship exists. Marchetta v. CPC of Louisiana, Inc., 99-0485, p. 6 (La.App. 4 Cir. 3/22/00), 759 So.2d 151, 155. Nevertheless, the aexistence of an independent contractor agreement is not necessarily dispositive of the issue of whether a physician is an independent contractor, as opposed to an employee of a hospital, and courts will inquire as to the real nature of the relationship and the degree of control exercised or ability to control by the hospital over the physician's activities. Coleman v. Acromed Corp., 34,354, pp. 3-4 (La.App. 2 Cir. 2/7/01), 779 So.2d 1060, 1063.

The distinction between employment and independent contractor relationships was examined in Hickman v. Southern Pacific Transport Company, 262 La. 102, 117, 262 So.2d 385, 390-391 (1972), as follows:

It is well understood by the courts of this State that the term independent contractor connotes a freedom of action and choice with respect to the undertaking in question and a legal responsibility on the part of the contractor in case the agreement is not fulfilled in accordance with its covenants. The relationship presupposes a contract between the parties, the independent nature of the contractor’s business and the nonexclusive means the contractor may employ in accomplishing the work. Moreover, it should appear that the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction, in the performance of the service, of his employer, except as to the result of the services to be rendered. It must also appear that a specific price for the overall undertaking is agreed upon; that its duration is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.
The law further recognizes that inquiry to determine whether a relationship is that of independent contractor or that of mere servant requires, among other factors, the application of the principal test: the control over the work reserved by the employer. In applying this test it is not the supervision and control which is actually exercised which is significant, the important question is whether, from the nature of the relationship, the right to do so exists. (Citations omitted.)

The Louisiana Supreme Court has recognized that vicarious liability, by its nature, mandates strict construction. Roberts v. State, Through Louisiana Health and Human Resources Administration, 404 So.2d 1221, 1225 (La.1981). In Roberts, the Court stated that the single most important factor to consider in deciding whether the employer-employee relationship exists for the purpose of La. C.C. art. 2320 is the right of the employer to control the work of the employee, citing Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), which explained: "[i]t is the Right [sic] of control of the time and physical activities in the other party and the existence of a close relationship between the parties which determine that one is a servant." Blanchard, 253 La. at 44, 215 So.2d at 905.

VMA cites two cases in support of the position that VMA was not vicariously liable for Dr. Ehlenberger: Prater v. Porter, 98-1481. (La.App. 3 Cir. 3/3/99), 737 So.2d 102, and Jones v. Angelette, 05-0597 (La. App. 4 Cir. 12/21/05), 921 So.2d 1017.

In Prater, the Third Circuit upheld the summary judgment granted in favor of the staffing agency that provided emergency room physicians to Beauregard Memorial Hospital. Relying on the contract between the staffing agency and the physician and the contract between the staffing agency and the hospital, the court concluded that it was obvious that the emergency room physician was under the control and supervision of the hospital, not the staffing agency. Prater, 98-1481, p. 8, 737 So.2d at 106.

In Jones, a patient’s widow brought a medical malpractice action against the emergency room physician and VMA, as the agency that provided physicians to staff the emergency room. This court affirmed the trial court’s granting of summary judgment in favor of VMA. We rejected the plaintiffs argument that VMA controlled the emergency room physician’s work schedule, physical activities, and compensation.' Relying on the holding in Prater, we determined in Jones that VMA was not vicariously liable for the actions of the defendant doctor.

In support of the motion for summary judgment in the case at bar, VMA [ ¡^introduced the VMA/Physician Agreement and the VMA/Tulane Agreement, which provide at pertinent points:

The physician is an independent contractor of VMA who is “responsible for his own actions”.
The physician “is solely responsible for the consequences of his professional judgment in the treatment of his patients. Subject to the provision of this contract, physician shall be free to devote his time and attention to such activities as he deems appropriate”.
“Physician shall abide by the terms of the contract(s) between Van Meter and hospital(s) where the physician provides professional services”.
The physician shall abide by “all applicable standards set forth by law or an ordinance or established by the rules and regulations of any federal, state or local agency, department, commission, association or other pertinent governing or advisory body having authority to set standards for health care facilities”. And the physician “shall perform all emergency medical services in accordance with all hospital rules, regulations, procedures, policies and by-laws and all medical staff rules, regulations, procedures, policies and by-laws”.
The hospital shall provide all necessary supplies, services, and non-physician staff.
All physicians shall “meet the qualifications set forth for medical staff membership as defined in the medical staff bylaws and will be classified as independent contract physicians and will be afforded those clinical privileges as approved” and shall “act at all times in accordance with the American Medical Association’s Ethical and Professional Standards”.
* * *
The hospital will bill for the physician’s services and will pay the staffing entity an hourly fee for the physician’s services provided.
The staffing entity will provide medical malpractice insurance on behalf of the physicians.

VMA correctly points out that the VMA/Physician Agreement and the VMA/Tulane Agreement in the case at bar are similar to the agreements relied on by the courts in Prater and Jones.

In further support of its motion for summary judgment, VMA introduced the deposition testimony of Sylvia Cusimano, VMA’s corporate representative. Ms. Cu-simano testified that: (1) Dr. Ehlenberger is an independent contractor for VMA; (2) Tulane has the right to fire Dr. Ehlenber-ger; (3) the physician’s work attire is determined by hospital policy; (4) VMA’s function is to give hospitals or clinics assistance with credentialing of physicians and to recruit physicians to work at the different facilities; and (5) VMA does not provide any bonuses, incentives, or fringe benefits to any of its contracted physicians.

Finally, Dr. Ehlenberger testified to the following in his deposition: (1) He is an independent contractor with VMA; 2) he, not VMA, directs the number of shifts per month; (3) when he goes to work at Tulane, he reports directly to Tulane and does not go to the VMA office; (4) VMA does not assert any control at all in his functions at Tulane; (5) Tulane provides him with privileges to work in the emergency department; (6) Tulane’s Credentialing Committee can suspend or revoke his privileges without going through VMA; and (7) he can work anywhere else he chooses other than Tulane.

Mize asserts that the facts presented in this case do not show that Dr. Ehlenber-ger was an independent contractor. Moreover, she submits that a determination of the applicability of the doctrine of respon-deat superior is largely a question of fact; and, therefore, summary judgment is not appropriate.

|7In opposition to the summary judgment, Mize introduced the deposition of Tulane’s corporate representative, Kimberly Ryan. Ms. Ryan testified that Tulane considered the physicians supplied by VMA to be employees of VMA. She stated that VMA, through its medical director, Mike Kolinsky, scheduled all of the shifts for the emergency room physicians. Ms. Ryan further testified that if there was a problem with one of the physicians supplied by VMA, Tulane would go first to Mike Kolinsky. Moreover, she stated that Tulane did not have the authority to fire one of the VMA doctors without first going to VMA.

Mize argues that the cases cited by VMA, i.e., Prater and Jones, are neither relevant nor persuasive because they involve allegations of medical malpractice on the part of the emergency room physician while the allegations in this case stem solely from Dr. Ehlenberger’s social behavior toward a non-patient.

We find no merit in the argument that VMA would not be vicariously liable for an emergency room physician who commits medical malpractice (as determined in Jones and Prater) but would somehow be vicariously liable if that same physician committed a tort against a non-patient while working in the emergency room. The issue of VMA’s right to control Dr. Ehlenberger while working in the Tulane emergency room would be the same in either case. We also note that Mize has presented no legal authority in support of this position.

Mize also contends that Dr. Ehlenberger is not an independent contractor of VMA pursuant to the guidelines set forth in Hickman, supra, because the contract between VMA and Dr. Ehlenberger allows for his termination without cause. The Hickman court stated that: “[t]his right to terminate the relationship without cause, where no term of employment is prescribed, is characteristic of the master and servant or employer-employee relationship. The right is at the same time ^antagonistic to the independent contractor relationship.” Hickman, 262 La. at 119, 262 So.2d at 391.

The contract between Dr. Ehlenberger and VMA does not allow for termination without cause. To the contrary, the contract provides for termination if the physician engages in certain unprofessional conduct.

Finally, Mize argues that Dr. Ehlenber-ger is not an independent contractor using the Hickman analysis because the duration of the contract with VMA is open ended. We disagree. It is evident that the contract provided for a specific term, which would be automatically renewed unless the physician was terminated by written notice 90 days prior to the term date. Again, the contract does not provide for termination without cause.

The jurisprudence dictates that independent contractor status must be determined from a totality of the circumstances. In the present case, we find that the evidence presented demonstrates, without question, that VMA did not have the right to control Dr. Ehlenberger while working as an emergency room physician at Tulane.

After our de novo review of the record, and considering this court’s decision in Jones and the Third Circuit’s decision in Prater, we find no error on the part of the trial court in granting summary judgment in favor of VMA and Travelers based upon a finding that VMA was not vicariously liable for Dr. Ehlenberger. Accordingly, we affirm.

AFFIRMED.


author: COOKS, Judge.

text:
    Kenneth L. JARRELL, et al. v. TOWN OF NEW LLANO.
    No. 2007-787.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 28, 2007.

      Michael D. Hebert, Milling, Benson, Woodward, L.L.P., Lafayette, LA, for Ap-pellees, Kenneth L. Jarrell, et al.
    John M. Sharp, Stephen H. Shapiro, Sharp Dooley, L.L.C., Baton Rouge, LA, for Appellant, Town of New Llano.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

|, The Town of New Llano appeals the judgment of the trial court which held two ordinances it passed seeking the annexation of property were without effect because of its failure to comply with statutory requirements. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 6, 2005, the Town of New Llano (hereafter “the Town”) passed two “Ordinances of Annexation” pursuant to the provisions of Title 33 governing the expansion of boundaries by a political subdivision of the State of Louisiana.

Ordinance Number One was an attempt by the Town to annex a portion of U.S. Highway 171 under La.R.S. 33:180(B) and (C) into the corporate limits of the Town. The Town contends that statute allows a public body to annex the paved portion of a highway and its accompanying right of ways without the necessity of annexing any private property upon the mere consent of the State and without the necessity of public hearings and other requirements as stipulated under La.R.S. 33:172. The portion of Hwy. 171 in question extended from the existing southerly limits of the Town south approximately two and one quarter miles to the intersection of Hwy. 171 and Perkins Road. The Louisiana Department of Transportation and Development granted its consent to the annexation as required by La.R.S. 33:180.

Ordinance Number Two was an attempt by the Town to annex private property adjacent to U.S. Highway 171 on both sides under La.R.S. 33:172, which contemplates annexation of private property that is not contiguous to the municipality’s corporate limits. To annex private property by petition and ordinance, La.R.S. 33:172(A)(l)(a) requires:

No ordinance enlarging the boundaries of a municipality shall be valid unless, prior to the adoption thereof, a petition has been presented to the ^governing body of a municipality containing the written assent of a majority of the registered voters and a majority in number of the resident property owners as well as twenty-five percent in value of the property of the resident property owners within the area proposed to be included in the corporate limits, all according to the certificates of the parish assessor and parish registrar of voters.

In May 2005, a Petition for Annexation requesting the Private Property Annexation was submitted to the Parish of Registrar of Voters and the Parish Assessor in order to verify and certify that consent of the requisite number of registered voters and resident property owners was represented in the Petition. Later that month, the Town published notices of the two proposed Ordinances in the local newspaper as required by statute. According to the notices, a public hearing was scheduled for June 6, 2005 to discuss the proposed Ordinances. This was to be followed by a Board of Aldermen meeting to vote on the Ordinances.

At the public hearing, several people voiced objections to the proposed ordinances. Upon conclusion of the hearing, the Town’s Board of Aldermen voted unanimously to adopt the two Ordinances. As required by La.R.S. 33:173, Ordinances One and Two were published in the local newspaper.

Louisiana Revised Statutes 33:174 allows thirty days for any individual party desiring to object to file suit contesting the proposed ordinances. Within that time period, suit was filed by the plaintiffs against the Town contesting the proposed annexations. Plaintiffs alleged that the Certificates of the Assessor and the Registrar of Voters did not comply with the statutory requirements set forth in R.S. 33:174. Plaintiffs also alleged the annexations were unreasonable.

The Town filed a Motion for Summary Judgment, contending it met all statutory requirements and there were no genuine issues of material fact as to whether the annexations were reasonable. The trial court denied summary judgment, finding there were genuine issues of material fact as to whether the Certificates of the | ^Assessor and the Registrar of Voters were valid.

At trial, the parties agreed to stipulate that all issues pertaining to whether the annexations were unreasonable would be submitted on the record. The trial court found the two Ordinances were without effect because of the Town’s failure to comply with the statutory requirements of La.R.S. 33:172 and 33:180. The trial court set forth the following written reasons for its judgment:

The issues presented for decision are governed by statute under La.R.S. 33:172 and La.R.S. 33:180 which state the law applicable to annexation of property by a public body. The Town of New Llano adopted two ordinances to annex property that would include an approximate 2 mile stretch of Highway 171 located south of the present corporate limits.
The court finds that New Llano has failed to comply with the statutory requirements of La.R.S. 33:172 and La. R.S. 33:180 and as a result the annexations must fail.
Ordinance Number Two was an attempt to annex the property in question under La.R.S. 33:172. The court finds that the certificate submitted by the Vernon Parish Tax Assessor does not meet the statutory requirements of R.S. 33:172(A)(1) in that it does not certify, as required by the statute, the number of resident property owners who signed an annexation petition, or the percentage in value of resident property owners who signed an annexation petition. This court further finds that the certificate submitted by the Registrar of Voters does not accurately reflect the written assent of a majority of the registered voters of the property to be annexed. The court herein adopts the reasons for its findings as cited in the post trial memorandum of the plaintiffs.
Ordinance Number One was an attempt by New Llano to annex the property in question under La.R.S. 33:180(B)(C) under the theory that the statute allows a public body to annex the paved portion of a highway and its accompanying right of ways without the necessity of annexing any private property upon the mere consent of the State without the necessity of public hearings and other requirements as stipulated under R.S. 33:172.
The court finds that R.S. 33:180(B) does not permit the annexation of the paved portion of a roadway without the annexation of all property adjacent to at least one side of the road. The Town of New Llano argues that “all property” under the terms of the statute means public right of way property and does not include private property. The court finds that the clear language of the statute stipulates nothing less than all property, whether public or private, adjacent to at least one side 14of the road, must be included in the annexation. The court notes that the statute makes a distinction between annexation of the right of way as a corridor and annexation of the paved portion of the roadway by providing different means to accomplish the end result within the statute. Common sense dictates that if “all property” should mean “public property” then a simple substitution of the word “public” for “all” would have been appropriate. In that the court has found the attempt to annex private property under Ordinance Number Two to be invalid, the attempt to annex under R.S. 33:180(B)(C) is also invalid. To annex property under R.S. 33:180(B), the requirements of R.S. 33:172 must be met.
In that the court has found both attempts at annexation to be in contravention of law, it is not necessary for the court to decide whether or not the annexations are reasonable. The court further notes that it had in prior court proceedings addressed the issue of standing and ruled in favor of the plaintiffs.

The Town appealed the trial court’s judgment, asserting the following assignments of error:

(1) The trial court erred in holding that plaintiffs proved by abundant evidence that the certificates issued by the Registrar of Voters and the Assessor did not satisfy the applicable statutory requirements, and that therefore the Town’s annexations were invalid;
(2) The trial court erred in holding that the Town’s annexation of U.S. Highway 171 pursuant to La.R.S. 33:180(B) was invalid; The trial court erred in denying the Town’s Exception of No Right of Action, finding that plaintiffs had standing to contest the Town’s annexation of a portion of U.S. Highway 171 pursuant to La.R.S. 33:180(B);
(3) The trial court erred in denying the Town’s Exception of No Right of Action, finding that plaintiffs had standing to contest the Town’s annexation of a portion of U.S. Highway 171 pursuant to La.R.S. 33:180(B);
(4) The trial court erred in imposing all costs incurred by plaintiffs.

ANALYSIS

In its first assignment of error, the Town argues the Plaintiffs did not prove by abundant evidence that the certificates issued did not satisfy the applicable statutory requirements.

We find the record supports the trial court’s conclusion that the certificate | ^submitted by the Vernon Parish Tax Assessor does not meet the statutory requirements of R.S. 33:172(A)(1). The trial court specifically noted the certificate did not certify, as required by the statute, the number of resident property owners who signed the annexation petition, or the percentage in value of resident property owners who signed the annexation petition. The only matter attempted to be certified by the Vernon Parish Assessor was the total number of property owners in the area sought to be annexed. Plaintiffs additionally note the Assessor’s certificate includes the name of “Kenneth Jarrell,” who is one of the plaintiffs in this matter and who did not even sign the petition.

A reading of the text of the Assessor’s “certificate” shows it does not address the issue of resident property owners, as it is required to do by statute. The word resident is absent from the “certificate”:

I, James A. Johnson, Assessor for Vernon Parish, State of Louisiana do hereby certify that in as much as Mary Gui-dry/Guidry Investments, Co., Rupert White and Kenneth Jarrell are the owners and therefore represent the majority of the property owners as well as 25% of the value of the property proposed to be included in the corporate limits of the Town of New Llano, Louisiana as described in the attached Petition for Annexation.

At trial, the Assessor, James Johnson (who signed the certificate), and his Deputy Assessor, Nancy Lewis (who prepared the certificate), both testified they were not asked to determine who the resident property owners were, nor did they determine which signors of the annexation petition were resident property owners. This testimony establishes the certificate of the Vernon Parish Assessor did not comply with the requirements of La.R.S. 33:172(A)(1). The Town was required to obtain the necessary certificate from the Vernon Parish Assessor “prior to the adoption” of the ordinance. On this issue alone, the annexation attempted by Ordinance Number Two fails.

| (¡The Town next contends the trial court erred in holding that the Town’s annexation of U.S. Highway 171 pursuant to La.R.S. 33:180(B) was invalid. The trial court held the clear language of R.S. 33:180 stipulates that all property, public or private, must be included in the annexation. The court noted that the statute makes a distinction between annexation of the right-of-way as a corridor and annexation of the paved portion of the roadway by providing different means to accomplish the end result within the statute.

The Town declared that Ordinance Number One was an annexation of roadway pursuant to R.S. 33:180(C), which provides as follows:

C. A municipality may annex a portion of the right-of-way of a public road as a corridor connecting other property which is not contiguous to the municipality but which is to be annexed without including the property adjacent to the corridor. Any annexation pursuant to this Subsection shall be in accordance with the following:
(1) The municipality shall, by certified mail, notify the state agency or political subdivision which owns the road proposed to be annexed at least thirty days prior to the introduction of the ordinance proposing such annexation.
(2) The petition or written consent of the state agency or political subdivision must be received by the municipality prior to the adoption of the ordinance.

(Emphasis added.)

In this case, the Town attempted to annex the right-of-way of a public road that is directly adjacent to other property attempted to be annexed at the same time. By its plain wording, R.S. 33:180(C) does not provide for that scenario.

Further, even if the proposed annexation fit under R.S. 33:180(C), it becomes inapplicable when the annexation of the property adjoining the right-of-way (Ordinance Number Two) is invalidated. That situation is governed by R.S. 33:180(B), which states:

B. No municipality may annex the paved portion of a public road |7without including in such annexation all property adjacent to at least one side of the road, the paved portion of which is included in the annexation.

Without the territory attempted to be annexed in Ordinance Number Two, the roadway attempted to be annexed by Ordinance Number One plainly violates R.S. 33:180(B). It is an invalid annexation of the “paved portion of a public road without including in such annexation all property adjacent to at least one side of the road.” In its third assignment of error, the Town argues the trial court erred in finding Plaintiffs had standing under La.R.S. 33:180 to contest the attempted annexation of U.S. Highway 171 in Ordinance Number One. The Town attempts to graft the standing requirements of La.R.S. 33:174(A) into La.R.S. 33:180, arguing that because none of the Plaintiffs are residents of the roadway sought to be annexed, they have no standing to challenge the annexation.

This issue was directly addressed in Parish of Jefferson v. City of Kenner, 96-73 (La.App. 5 Cir. 5/15/96), 675 So.2d 1177, writ denied, 96-1563 (La.9/27/96), 679 So.2d 1346. In that case, the Parish of Jefferson contested a proposed annexation by the City of Kenner, which was attempted pursuant to La.R.S. 33:180. As the Town of New Llano did here, The City of Kenner field an Exception of No Right of Action stating the Parish of Jefferson had no right to contest the annexation because it was not within the class of persons authorized by La.R.S. 33:174 to contest the annexation. The court specifically rejected this argument, stating as follows:

After reviewing the provisions for annexation, we conclude that Section 180 is not governed by Section 174. Sections 171-179 refer to the inhabitants and owners of an area to be annexed. Thus, it follows that an “interested citizen” of the municipality or territory to be annexed should be provided a right to contest the annexation. However, Section 180 is solely concerned with the annexation of territory owned by a public body. No limitation on the right of action is provided in this section. It is a separate and special annexation provision. If we were to agree with Kenner that Section 174 applies, and that Section 174 excludes a municipality because it is not an “interested citizen”, no one | ¿would be able to contest annexation of an area in which there are no residents, which is the alleged case here. We conclude that the legislature neither intended that result, nor did it intend to exclude a parish or municipality from contesting an annexation of publicly owned territories. Without a right of action to contest annexation, the parish or municipality might be subject to an invalid or illegal “land-grab.” Thus, we find that the Parish has stated a right of action under the Revised Statutes.

Id. at 1180.

Thus, under Parish of Jefferson, even litigants who do not meet the test of R.S. 33:174 still have standing to contest the attempted annexation of Highway 171. As recognized in that ease, the Town’s position would result in no one being able to contest the Town’s attempted highway annexation, because the only possible litigant would be DOTD, who already “consented” to the annexation.

The second circuit reached a similar result in Caldwell Parish Police Jury v. Town of Columbia, 40,865 (La.App. 2 Cir. 3/15/06), 930 So.2d 65, writ denied, 06-1565 (La.10/6/06), 938 So.2d 75. There, the court overruled an exception of no right of action granted against a plaintiff who did not meet the definition of “interested citizen” as set forth in La.R.S. 33:174. The court held “the cause of action asserted herein does not arise under the provisions of La. R.S. 33:174 and therefore is not subject to the limitations provided for therein.” Id. at 69. The court agreed with the trial court that Caldwell Parish Police Jury had an actual interest in the action because the annexation impacts the parish’s tax base. We, therefore, find the trial court did not err in finding Plaintiffs had standing to contest the Town’s attempted annexation of U.S. Highway 171.

Lastly, the Town argues the trial court abused its discretion in casting it with all costs below, in the amount of $3,370.74. The Town argues the political subdivisions are generally exempt from paying court costs according to La.R.S. 13:4521, which provides in pertinent part:

| flA. (1) Except as provided in R.S. 13:5112, R.S. 19:15 and 116, and R.S. 48:451.3, and as hereinafter provided, neither the state, nor any parish, municipality, nor other political subdivision, public board, or commission, nor any officer or employee of any such governmental entity when acting within the scope and authority of such employment or when discharging his official duties shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state, or any such parish, municipality, or other political subdivision, board, or commission, in any court of this state or any municipality of this state....

In this case, however, La.R.S. 13:5112, provides an exception:

A. In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court, after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may grant in favor of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, an award of such successful party’s court costs under R.S. 13:4533 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.
B. In accordance with Section 10 of Article XII of the Constitution of Louisiana, neither the state nor any department, board, commission, agency, or political subdivision thereof shall be required to pay any such award of court costs, pursuant to this Section, until the judgment rendered against the state, department, board, commission, agency, or political subdivision shall become final and definitive under the provisions of Articles 2166 and 2167 of the Code of Civil Procedure or otherwise nonap-pealable or nonreviewable beyond the delays set by law for same and the funds have been appropriated therefor in a specific dollar amount.

As set forth above, political subdivisions are generally exempt from paying court costs according to La.R.S. 13:4521. However, the subsequent statute creates an exception to this general rule when, upon the discretion of the trial judge, the political subdivision is ordered to pay. La.R.S. 13:5112. The trial court set forth the specific dollar amount the political subdivision is to pay as required by law. Therefore, as the Town did not prevail on any substantive issue in the lawsuit, we find no abuse of discretion in the trial court’s assessment of costs.

ImDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against appellants, the Town of New Llano.

AFFIRMED.