author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Ingrid HAMILTON.
    No. 2007-KA-0582.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 28, 2007.
    Eddie J. Jordan, Jr., District Attorney, Kevin P. Guillory, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendani/Ap-pellee.
    Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR.
   PATRICIA RIVET MURRAY, Judge.

11 This is a criminal case. The sole issue presented is whether the trial court erred in granting the motion to quash filed by the defendant, Ingrid Hamilton. For the reasons that follow, we reverse and remand.

STATEMENT OF THE CASE

On September 3, 2004, in case number 451-700, the State filed a bill of information charging Ms. Hamilton with possession with intent to distribute cocaine in violation of La. R.S. 40:967. On September 8, 2004, Ms. Hamilton was arraigned, pled not guilty, and a hearing on motions was set for September 22, 2004. After several continuances, on January 12, 2005, the parties argued Ms. Hamilton’s motion to suppress evidence and motion for preliminary hearing. At the close of the motion hearing, the trial court denied the motion to suppress evidence, found that the State had probable cause to substantiate the charges, bound Ms. Hamilton for trial, and set a March 7, 2005 trial date. The March 7, 2005 minute entry provides that the trial court reset the trial to April 6, 2005, because another trial was in Rprogress. On April 6, 2005, the trial court reset the trial to May 25, 2005, again because another trial was in progress. On May 25, 2005, the trial court reset the trial to July 14, 2005, because the sheriff failed to bring Ms. Hamilton to court. On July 14, 2005, the trial was continued on the State’s motion to September 26, 2005.

On August 29, 2005, Hurricane Katrina struck the New Orleans area. On May 16, 2006, a pre-trial conference was held, and trial was set for June 27, 2006. Although the record contains no June 27, 2006 minute entry, the docket master entry for that date indicates that trial was reset by the court to August 14, 2006. On August 14, 2006, the trial was continued on the State’s motion to September 11, 2006. On August 15, 2006, Ms. Hamilton filed a motion for speedy trial. On September 11, 2006, the trial was continued on joint motion of the State and co-defendant, Jovan L. Bass, to September 25, 2006. On September 25, 2006, the trial was continued on the State’s motion to November 8, 2006.

Although the record contains no November 8, 2006 minute entry, the docket master entry for that date provides that the trial was continued upon motion of the defendants to December 6, 2006. The transcript of the December 6, 2006 proceedings reveals that Ms. Hamilton’s co-defendant, Mr. Bass, requested the continuance. On December 6, 2006, the trial was continued on the State’s motion to February 7, 2007. On February 7, 2007, Ms. Hamilton made an oral motion to quash seeking to have the trial court dismiss the State’s case. The trial court set a hearing on the motion to quash |sfor February 13, 2007. On March 7, 2007, Ms. Hamilton filed a written motion to quash. Also, on March 7, 2007, after several continuances of the hearing date, a hearing was held on the motion to quash, and the trial court granted it. The transcript from the March 7, 2007 hearing reflects that the trial court rejected the State’s argument that circumstances beyond its control prevented it from bringing its case against Ms. Hamilton to trial.

STATEMENT OF THE FACTS

The facts are not relevant to the issue raised by the State on appeal. Nevertheless, the police report, a copy of which is in the record, indicates the circumstances surrounding Ms. Hamilton’s arrest. On July 31, 2004, several officers were conducting surveillance of the corner of South Liberty Street and Martin Luther King Boulevard in Orleans Parish when they observed Mr. Bass engage in what they thought to be a narcotics transaction with Ms. Hamilton. After detaining Mr. Bass and Ms. Hamilton, the officers conducted a search of their persons and found $136.00 in Mr. Bass’s pants and a substance the officers believed to be crack cocaine in Ms. Hamilton’s shorts. Ms. Hamilton was arrested for violating La. R.S. 40:967, possession with intent to distribute cocaine.

DISCUSSION

In its sole assignment of error, the State contends that the trial court erred when it quashed the State’s bill of information based upon speedy trial considerations. The State argues that the trial court erred in granting the motion to quash because the time delays for the institution of prosecution had not run by virtue of application of La. C.Cr.P. arts. 578, 579, 582, and 583. The State also relies upon this Court’s prior opinion in State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333, which held that the Leffects flowing from Hurricane Katrina served to interrupt the tolling of time limitations pursuant to La. C.Cr.P. art. 579. Ms. Hamilton counters that the State failed to introduce any evidence in support of its assertion that the destruction wrought by Hurricane Katrina’s aftermath on the criminal district courts in Orleans Parish amounted to a “cause beyond its control” under La. C.Cr.P. art. 579.

A review of the applicable statutory provisions and jurisprudence supports the State’s position that the trial court erroneously granted Ms. Hamilton’s motion to quash. La.C.Cr.P. art. 536 provides that a motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court, and La.C.Cr.P. art. 536 provides that the motion shall specify the grounds upon which it is based. La.C.Cr.P. art. 532 provides that a motion to quash may be based, among other things, upon an assertion that the time limitation for the commencement of trial has expired. In this case, Ms. Hamilton’s motion to quash asserts that dismissal of the State’s case is warranted because the State failed to bring its case against her to trial within the statutory time limitations. La.C.Cr.P. arts. 578-82.

Under La.C.Cr.P. art. 578(A)(2), the State initially had two years from September 3, 2004, the date it filed its bill of information, within which to bring Ms. Hamilton to trial in this case involving a non-capital felony. It is well settled that when, as here, the defendant moves to quash because the two year period has lapsed, the State bears a heavy burden to establish prescription was either interrupted or suspended. State v. Rome, 93-1221, p. |s3 (La.1/14/94), 630 So.2d 1284, 1286. In Rome, the Supreme Court explained the mechanics of interruptions and suspensions as follows:

An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute, in this case two years. The Louisiana Code of Criminal Procedure article 579(A)(2) provides in pertinent part that the two-year period of limitation will be interrupted if the defendant “cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.” Once the cause of interruption disappears, the two-year time limit begins anew. See La.Code Crim.Proc.Ann. art. 579(B). In contrast, the prescriptive period is merely suspended, until the trial court rules on the filing of preliminary pleas. The relevant period is simply not counted, and the running of the time limit resumes when the motions are ruled on. Note, however, that “in no case shall the state have less than one year after the ruling to commence the trial.” La.Code Crim.Proc.Ann. art. 580.

630 So.2d at 1287.

Although trial in this matter was set for September 26, 2005, the trial was canceled due to the destruction caused by Hurricane Katrina. The State asserts that prescription was interrupted due to the effects of Hurricane Katrina upon the Orleans Parish Criminal District Court. As previously noted, La.C.Cr.P. art. 579 indicates that the time limit to commence trial shall be interrupted if the defendant cannot be tried for any cause beyond the State’s control. The State asserts that trial in the present matter was impossible for the following Hurricane Katrina-related reasons: (i) criminal district courts were closed as a result of the hurricane; (ii) court eventually resumed at the Orleans Parish prison but there were no juries, courtrooms, or deputies to allow for adequate security; (iii) in early 2006 court was held at the federal courthouse in Orleans Parish, but each section was only able to hold sessions approximately once every two to three weeks, and there were no juries; and, (iv) throughout this period the parties were often unable to procure or even ascertain the state of water-soaked records and evidence. | ^Further, the State asserts that it was unable to bring its case against Ms. Hamilton to trial until June 5, 2006, when the criminal district courthouse reopened and the jury commission was able to compile and seat juries for trials. Thus, the State argues that the time limitations for bringing its case against Ms. Hamilton to trial were interrupted until June 5, 2006. Accordingly, the State argues that the time limitations began to run anew on June 5, 2006, its case against Ms. Hamilton has not prescribed, and thus the trial court erred when it granted Ms. Hamilton’s motion to quash.

Ms. Hamilton responds to the State’s argument by asserting that the State put on no evidence in support of its assertion that the prosecution of this matter was interrupted by the after-effects of Hurricane Katrina upon the Orleans Criminal District Court. Moreover, the transcript of the motion hearing reveals that the trial court rejected the State’s argument on this point and disagreed with the State’s assertion that jury trials could not have been held before June 5, 2006. Instead, the trial court asserted that the jury commission was ready to seat juries as early as April 2006.

Irrespective of when juries could have been seated, we have acknowledged in at least one other case that the effects flowing from Hurricane Katrina served to interrupt the tolling of time limitations pursuant to La.C.Cr.P. art. 579. Brazile, supra. In Brazile, the State filed its bill of information against Mr. Brazile on March 23, 2004. Over the course of the matter, various motions were made, and the trial date was continued and reset several times. Trial in the matter was eventually set for September 8, 2005. Following Hurricane Katrina, trial was reset for September 19, 2006. Mr. Bra-zile filed a motion to quash which argued that the time limitations had run on the State’s prosecution. The trial court granted the motion to |7quash, and the State appealed. On appeal, this Court reversed the trial court, reasoning as follow:

This Court acknowledges that the State was prevented from trying Mr. Brazile on September 19, 2005 and for some time thereafter while the court was not in operation due to Hurricane Katrina. An application of article 579 allows for the two-year limitation period imposed by article 578 to commence anew once the causes preventing the State from trying the defendant were removed and the court reconvened. This court need not determine exactly when this occurred as the motion to quash was granted after only a little more than one year had elapsed since Hurricane Katrina struck the Gulf Coast. At that point, the State still had at least a year in which to commence trial. Although the renewal of the entire two-year period could be construed as extremely prejudicial to the defendant, the constitutionality of article 579 was not raised in this matter and therefore is not currently before this court. As a court of review, we are restricted by the contents of the record. Thus, this Court must determine that the trial court erred in granting defendant’s motion to quash.

Brazile, 06-1611 at pp. 4-6, 960 So.2d at 335-36.

As in Brazile, the record in this case reflects that trial was set for September 26, 2005, and was postponed as a result of the effects of Hurricane Katrina. Because of Hurricane Katrina, the State was prevented from trying Ms. Hamilton on September 26, 2005, and for some time thereafter while the criminal district court was not in operation. Further, as in Brazile, we find it unnecessary to determine exactly when the causes preventing the State from trying Ms. Hamilton were removed or when a jury could have been seated because the motion to quash was granted within two years of the anniversary of Hurricane Katrina. At the time the trial court granted the motion to quash, March 7, 2007, the State still had approximately five months and three weeks to bring its case against Ms. Hamilton to trial. Likewise, as in Brazile, the defendant in the present case has not challenged the constitutionality of La.C.Cr.P. art. 579. Thus, the |strial court erred when it held that the State failed to bring its case against Ms. Hamilton to trial within the limitation allowed by law.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The same bill of information also charged Jovan L. Bass with violating La. R.S. 40:967. The record indicates that Mr. Bass pled guilty to the charge on January 10, 2007, and the trial court sentenced him to five years at hard labor with the Department of Corrections.

      . Ms. Hamilton asserts that Mr. Bass’s request for a continuance of the November 8, 2006, trial date should not serve to suspend the running of the applicable time limitations on the State's case against her because the continuance was requested over her objections by a co-defendant. We find it unnecessary to address Ms. Hamilton's assertion in order to decide the State's appeal. Rather, as discussed elsewhere in this opinion, we find the holding in State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333, dis-positive.

      . The defendant in Brazile has filed a writ application with the Louisiana Supreme Court (07-K-1339), which was still pending as of the date this opinion was handed down.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. Genaro B. GONZALEZ.
    No. 2007-KA-0532.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 28, 2007.
    Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, and Judge MAX N. TOBIAS, JR.)
   MAX N. TOBIAS, JR., Judge.

hThe defendant/appellant, Genaro B. Gonzalez (“Gonzalez”), was charged on 18 May 2005 with one count of attempted second-degree murder. He entered a not guilty plea on 24 May 2005. On 22 July 2005, Thomas “Tommy” Williams appeared as an interpreter for Gonzalez, and a preliminary hearing was conducted. The court rendered its ruling on 28 July 2005, finding probable cause. Following a jury trial on 8 November 2006, Gonzalez was found guilty as charged. He was sentenced on 20 November 2006 to serve forty years at hard labor without benefit of parole and without benefit of good time eligibility. A motion to reconsider sentence was denied; a motion for appeal was granted.

The victim, Camille Tarver (“Tarver”), received three stab wounds, one of which was described as life threatening. The life threatening wound was just below her breast bone and was so large that her liver and stomach could be seen at the base of the wound. The other wounds were on her hand and thigh.

12Todd Belott, M.D., who performed surgery on Tarver, testified that substantial force is required to penetrate all of the layers of the abdomen. Here, in addition to all of the layers being penetrated, the knife also penetrated the back wall of her stomach and injured her pancreas and liver. A major artery was severed, and Dr. Belott opined that Tarver probably would have died from hemorrhaging had she not been taken timely to the hospital. He additionally felt that the large size of the wound was caused by repeated stabbing in the area.

Tarver testified that she and Gonzalez dated for a few months and that she broke up with him in the early part of December 2004. In January 2005, she was working two separate jobs. On 9 January 2005, Ms. Tarver was waiting for the streetcar after leaving her job at Money Mart on Canal Street in New Orleans when Gonzalez approached her to talk. He upset her, and when the streetcar came, she just turned around and boarded the Canal Street streetcar, leaving him behind. She was heading to her second job at Haagen-Dazs in the French Quarter where her shift began at 8:00 p.m. and ended at 12:00 a.m. She boarded the Canal Street streetcar to head home, and she exited the streetcar at Jefferson Davis Parkway. Tarver was walking along her usual route to her home that was located on Orleans Avenue when Gonzalez jumped from behind some bushes and attacked her. She was thrown to the ground with him on top of her. Tarver stated that the defendant appeared very angry. Initially, she thought that he was going to rape her and then she saw the knife. He stabbed her. She believed that he was trying to kill her. Tarver was able to push him and the knife away from her, and she ran into the street screaming. She could see that she was covered in blood. A car stopped, and Tar-ver jumped into the car and told the | smale driving that the defendant had just stabbed her. The man took her to Lindy Boggs Hospital where she was attended to by Dr. Belott. Prior to her surgery, she spoke to a police officer, giving the officer Gonzalez’s name and address. Tarver also informed the officer that Gonzalez had family in New York.

Sergeant Christian Hart of the New Orleans Police Department went to the address given by Tarver and verified through the landlord that Gonzalez lived at that address. He was not at home at the time; hence, the sergeant secured a search warrant that was executed on 11 January 2005. Upon entering the apartment, the sergeant observed that the apartment looked as if no one lived there. He found only debris and some paperwork. Among the paperwork was Gonzalez’s Honduran passport, social security card, and resident alien card. The sergeant did not find a knife or the towel that he allegedly wore around his neck during the attack. After seizing the identifications, Sergeant Hart obtained a warrant for Gonzalez’s arrest and issued a bulletin regarding the warrant to all other law enforcement agencies.

Both the search and arrest warrants were admitted into evidence along with two pictures of Tarver’s injuries taken after her surgery.

ERRORS PATENT/ASSIGNMENT OF ERROR NUMBER TWO

A review of the record reveals one errors patent. Neither La. R.S. 14:30.1 nor La. R.S. 14:27 provide for a restriction of the right to earn good time. Thus, Gonzalez’s sentence must be amended to delete any restriction as to good time.

\ ¿ASSIGNMENT OF ERROR NUMBER 1

By this assignment of error, Gonzalez asserts that the district court erred in permitting him to go to trial without the assistance of a qualified language interpreter.

La. C.E. art 604 provides: “An interpreter is subject to the provisions of this Code relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.”

In State v. Rodriquez, 93-0461 (La.App. 4 Cir. 3/29/94), 635 So.2d 391, this court found that an interpreter, whose competence was stipulated to and who translated with general accuracy, was sufficient to show that the interpreter was qualified. Here, Gonzalez complains, inter alia, that the record is devoid of any evidence of Mr. Williams’ qualifications as an interpreter or a stipulation to that effect.

As indicated above, Mr. Williams first appeared as the defendant’s interpreter at the preliminary hearing conducted on 22 July 2005. Seemingly, his qualifications would have been reviewed at that time. However, whether this was done is unknown because the transcript from the hearing is not part of the record on appeal. The minute entry from that day does not show that his qualifications were addressed, nor does it reflect an objection regarding his qualifications. In fact, the record does not reflect that any objection was lodged until Gonzalez pro se noted his concerns on the morning of trial.

| .¡Prior to the start of trial, Gonzalez produced a note written in English by someone from the prison in which he stated that he felt that his interpreter was not providing him “with specifics of information relayed by state attorney or judge.” He stated further that he was not prepared to go to trial because his attorney had not attempted to bring forth his alibi witness, taken any statements from him, or provided him with any medical reports. Gonzalez requested appointment of a bilingual attorney. The request was denied.

Besides the general assertion made by Gonzalez that Mr. Williams was unqualified as an interpreter, the main thrust of his complaint when read in context is that he, Gonzalez, observed Mr. Williams speak to a police officer. The court resolved this matter by questioning Mr. Williams. Mr. Williams denied being derelict in his duty to the defendant, and he noted that any conversation that he may have had with a police officer was strictly on a friendly basis and did not deal with the case.

Aside from this one alleged instance of prejudice that does not involve Mr. Williams’ ability to translate, Gonzalez does not point to any specific instances in which Mr. Williams’ translation was inept during trial or otherwise or that an objection was lodged; the record on appeal fails to show that any problems arose during the translations. .It is well-established that an irregularity or error cannot be argued after a verdict unless there was an objection at the time it occurred. La. C.Cr.P. art. 841. Because Gonzalez has not assigned any specific prejudice arising out of Mr. Williams’ translations, he has not shown that his substantial rights were violated. We find no abuse of discretion or error in the rulings on the trial court relating to |nthe translator or the translations. Accordingly, the assignment of error is without merit.

Accordingly, we affirm the conviction, amend the sentence to delete any restriction as to good time credit, and affirm the sentence as amended.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED, AFFIRMED.

MURRAY, J., concurs in the result.

      . The parties stipulated that Dr. Belott was an expert in general surgery.

      . Gonzalez was arrested in New York. Because the officer involved in the arrest did not testify, this information was not presented to the jury.

      . Counsel for Gonzalez refers to federal statutes and rules in her effort to show that Mr. Williams was unqualified as an interpreter. The statutes and rules used by the federal courts to which she refers include 28 U.S.C. §§ 1827-28 and Fed.R.Evid. 604 that require an interpreter to either be certified or qualified as an expert. Reference to these statutes is unnecessary in light of La. C.E. art. 604. The official comment notes to La. C.E. art. 604 states that the Article follows Fed.R.Evid. 604 and is intended to clarify Louisiana Law. Both parties refer to a case that predates La. C.E. art. 604 that became effective on 1 January 1989, in which the court declared that Louisiana had yet to determine the necessary qualifications for interpreters. See State v. Tamez, 506 So.2d 531 (La.App. 1 Cir. 1987).

      . The trial court addressed Gonzalez about his concerns, including a medical report about him. Apparently, he thought that a DNA test had been performed; however, neither the state nor the defense was aware of any such test being performed on Gonzalez.


author: STEWART, J.

text:
    Rosemary STILLS, Individually and on Behalf of her Minor Child, LeWilliam Stills, Plaintiffs-Appellants, v. Tal MIMS, Tommie Lee Mims and Tal’s Custom Landscaping, Inc., Defendants-Appellants.
    No. 42,799-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Kammer & Huckabay by Charles H. Kammer, III, Shreveport, for Appellants, Rosemary Stills and LeWilliam Stills.
    Klotz, Simmons & Brainard by Eron J. Brainard, Shreveport, for Appellants, Tal Mims and Tal’s Custom Landscaping, Inc.
    Hubley, Marcotte, Rhodes & Hussey, by Michael S. Hubley, Shreveport, for Appel-lee, State Farm Mutual Ins. Co.
    Before BROWN, STEWART and GASKINS, JJ.
   STEWART, J.

liThe trial court granted a summary judgment in favor of State Farm Fire and Casualty Company (“State Farm”), upon finding no coverage under the homeowner’s policy issued to defendant, Tal Mims, for the claims of plaintiff, Rosemary Stills, on behalf of her son, LeWilliam Stills. Both Stills and Mims appeal the trial court’s judgment. Finding the business pursuits/rental exclusion applicable to the claim, we affirm.

FACTS

On December 14, 2005, Rosemary Stills, individually and on behalf of her minor son, LeWilliam Stills, filed suit for damages against defendants, Tal Mims, Tal’s Custom Landscaping, Inc., and Tommie Lee Mims. Her petition alleges that in April of 2005, a tree fell on the home she was leasing from Tal Mims and Tommie Lee Mims. The leased home is located at 604 Central Avenue in Shreveport, Louisiana. The petition states that Stills contacted Tal Mims and informed him of damage to the home.

The petition further alleges that, “acting as the landlord, the property owner and/or through TAL’S CUSTOM LANDSCAPING, INC.,” Mims came to the home to remove the tree on April 9, 2005. According to the petition, when Tal and his crew cut the tree, they allowed pieces to fall to the ground. A large branch fell on top of LeWilliam, pinning him to the ground and severely injuring him. He sustained a broken femur.

Tal Mims and Tal’s Custom Landscaping, Inc., filed an answer denying the allegations in the plaintiffs petition, but admitting that Tal had been contacted by Stills about the fallen tree.

| PIn an amended petition, Stills added State Farm as a defendant. She alleged it had in effect at the time of the accident a policy covering the actions of the defendants. State Farm filed an answer in which it asserted that it had issued a policy of homeowner’s insurance to Tal Mims, the named insured, but that coverage for the plaintiffs claims was excluded under the policy on two grounds. First, State Farm alleged that the injury sustained by LeWilliam arose from a “business pursuit” of Tal Mims. Second, it alleged that the incident arose out of premises owned by the insured that was not the insured location.

After answering, State Farm filed a motion for summary judgment asserting no coverage under its policy. The motion alleged that the homeowner’s policy issued to Tal Mims was for his personal residence at 2508 Lindholm Street in Shreveport, and that State Farm never issued a policy for 604 Central Avenue where the accident occurred. State Farm asserted that the liability and medical payments coverages provided in the policy excluded bodily injury and property damage “arising out of the rental or holding for rental of any part of any premises by any insured” and “arising out of premises owned or rented to any insured, which is not an insured location.” State Farm argued that the accident arose out of conditions associated with the rental of the Central Avenue house, which was not an insured location. In support of its motion, State Farm offered a certified copy of the policy; affidavits by underwriting managers, Betty Evers and Greg Manley, asserting that State Farm was unable to locate any record of having issued a homeowner’s policy or rental dwelling policy to |sTal Mims for 604 Central Avenue; and an affidavit by Barbara Meyers, a State Farm claim representative, attesting that the only policy issued to Tal Mims was the homeowner’s policy covering 2508 Lindholm Street and that no policy was in effect at the time of the accident covering the Central Avenue house.

Arguing that the exclusions did not apply, both the plaintiff and Tal Mims opposed State Farm’s summary judgment motion. Stills argued that her claim was based on Mims’ negligence in cutting the tree and not on any property defect. For this reason, the insured location issue was not relevant. Both asserted that the business pursuit exclusion did not apply, because Mims’ actions fell under the exception for activities ordinarily incident to nonbusiness pursuits. Mims’ affidavit was offered in support of the opposition to summary judgment. He declared that a large limb fell onto the roof of the house during a storm and that the limb did not fall because of any ruin or decay. While he was cutting the limb on April 9, 2005, it fell on LeWilliam. Mims denied being in the business of renting homes. He claimed that he was acting on his own behalf at the time of the accident and that he was not engaged in any business pursuit or employment.

The trial court granted State Farm’s motion for summary judgment, upon concluding that the policy excluded rental coverage. Motions for rehearing by Mims and Stills were denied. Their appeals followed.

DISCUSSION

Summary judgments are subject to a de novo review on appeal using the same criteria as the trial court to determine whether summary judgment |4is appropriate. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191; Bumgardner v. Terra Nova Ins. Co. Ltd., 35,615 (La. App.2d Cir.1/23/02), 806 So.2d 945. If the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law, then summary judgment is appropriate. La. C.C.P. art. 966(B); Bumgardner, supra. See also La. C.C.P. arts. 966-967.

The summary judgment procedure may be used to resolve questions of law pertaining to the interpretation of insurance contracts. Id. However, summary judgment declaring no coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when considered in light of the undisputed material facts, under which coverage could be provided. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; Bumgardner, supra.

An insurance policy is an agreement between the parties and is interpreted according to ordinary contract principles. Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, judgment amended, 95-0809 (La.4/18/96), 671 So.2d 915. The contract is enforced as written when the language is clear and unambiguous. La. C.C. art.2046; Mag-rión, supra.

Insurance companies are free to limit coverage so long as the limitations do not conflict with statutory provisions or public policy. Bumgardner, supra. But exclusions must be strictly construed against the insurer with any ambiguities construed in favor of the insured. Id. The | ¡^insurer bears the burden of proving the applicability of an exclusion to a claimed loss. Id.

Stills seeks coverage for her claim under the personal liability (Coverage L) and medical payments to others (Coverage M) parts of the policy. State Farm, which bears the burden of proving that the policy excludes coverage, claims there are two applicable exclusions to these coverages. The first policy exclusion raised by State Farm provides:

1. Coverage L and Coverage M do not apply to:
* * *
b. bodily injury or property damage arising out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured. This exclusion does not apply:
(1) to activities which are ordinarily incident to non-business pursuits.

The business pursuits exclusion in a homeowner’s policy is intended to exclude risks that should be covered under different policies. Richard v. Milazzo, 2001-2233 (La.App. 1st Cir.11/8/02), 831 So.2d 1055. For example, the commercial risks of a business would typically be covered by a commercial liability policy, whereas the risks associated with a rental dwelling would typically be insured by rental property insurance. Id. The removal of the risks associated with business enterprises or rental properties helps to lower the rates of homeowner’s insurance by eliminating non-essential coverages. Jackson v. Frisard, 96,0547 (La.App. 1st Cir.12/20/96), 685 So.2d 622, units denied, 97-0193 (La.3/14/97), 689 So.2d 1386 and 97-0201 (La.3/14/97), 689 So.2d 387; Blue Ridge Ins. Co. v. \ ¡Newman, 453 So.2d 554 (La.1984). Also, the phrase “arising out of,” as used in the exclusion, implies an element of causality rather than the proximate cause. Elorza v. Massey, 00-313 (LaApp. 5th Cir.3/14/01), 783 So.2d 453. Thus, there must be some causality between the business pursuit or rental of property and the bodily injury or property damage for the exclusion to apply.

The plaintiff and Mims argue that her claim does not arise from any business pursuit by Mims; rather, the claim is based on his personal liability and involves activities that are ordinarily incident to nonbusiness pursuits. Both parties cite Blue Ridge, supra, as dispositive of the coverage issue.

In Blue Ridge, supra, Willie Dixon sued for damages after a tree on neighboring property fell and damaged his home. Robert Newman owned the neighboring property, which was insured under a homeowner’s policy issued by Cambridge Mutual Fire Insurance Company. The property had been Newman’s family home since his parents purchased it in 1965, and had only been rented out to a friend for a short period in the year prior to when the tree fell. The home was vacant when the incident occurred. Cambridge sought to deny coverage based on an exclusion for “bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits.” The policy defined the term “business” to include “the rental or holding for rental of the whole or any portion of the premises by any insured.” Both the trial court and appellate court found the exclusion applicable. However, the |7supreme court determined that the exception to the exclusion applied under the facts of the case.

The supreme court examined whether “the maintenance of a tree on rental property is an activity ordinarily incident to nonbusiness pursuits,” and determined that it was in this case. The existence of the tree on the property was not a necessary incident of renting the house, it was not related in any way to the “business character of the property,” and it did not affect Newman’s ability to rent the house. The tenant had moved out before the tree fell and had done nothing to cause it to fall. If Newman had been living there, the tree would have still fallen, and coverage would have been provided under the policy. The supreme court concluded, “Newman’s maintenance of the tree on the property which had been used by his family as a residence since 1965 was an activity ordinarily incident to nonbusiness pursuits.” Id.

At first glance, Blue Ridge, supra, appears on point, but it is not. Several factors distinguish it from the present case. First, Newman’s property on which the tree was located was insured under the Cambridge homeowner’s policy. Here, the Central Avenue house leased by Stills is not insured under the State Farm homeowner’s policy issued to Mims for his Lin-dholm Street residence. Mims is not seeking coverage for an accident that occurred on his insured residence. Rather, he is seeking to have his |shomeowner’s insurance cover an incident that occurred on an unrelated rental location that should be insured by some other policy. The very purpose behind the business pursuits exclusion supports a finding of no coverage.

Second, Newman’s property had been his family’s home since 1965, and had only been rented to a friend for less than a year prior to when the accident occurred. Here, there is no indication that the Central Avenue residence is anything other than a rental property. Third, Newman’s house was vacant when the tree fell, whereas Stills and her son were residing in the Central Avenue home when the tree fell on it. Fourth, the damage in Blue Ridge, supra, arose when the tree from Newman’s property fell on a neighboring property. Here, the existence of the tree on the property and its falling during the storm did not cause the damage; rather, LeWilliam’s injury arose from Mims’ removal of the tree from the roof of the rental dwelling.

Fifth, the supreme court’s major consideration was that the mere existence of the tree on the property had no bearing on the use of the property as a rental. The fact that a tree fell on the roof of the rental home in this matter, particularly if left there, would likely affect its suitability as a rental dwelling. While the existence, or maintenance, of a tree on Newman’s family property is an activity ordinarily incident to nonbusiness pursuits, the removal of a fallen tree from the roof of a rental dwelling by the lessor after being called by the lessee, as in this case, is clearly not. The situations differ and lead to different results regarding coverage.

lain this matter, the parties have pointed to no genuine issue of material fact. The facts are that Stills rented her home from Tal Mims and Tommie Lee Mims. A storm caused a tree to fall on the roof of the home. Stills informed Tal Mims of the damage, and he came to remove the tree. In doing so, a limb fell from the roof onto the ground and injured LeWilliam Stills. Under these facts, there is a causal connection between the rental of the dwelling and the bodily injury. LeWilliam’s bodily injury arose from the rental of the Central Avenue premises by Stills from the insured, Tal Mims. The business pursuits exclusion is intended to apply in this type of incident. Tal Mims would not have removed the limb but for it having fallen on his rental property. Moreover, he acted at his tenant’s request.

The fact that Mims’ personal actions resulted in the injury to LeWilliam does not preclude application of the business pursuits exclusion. This exclusion is not tied to a defect in the property as is the exclusion for bodily injury or property damage “arising out of any premises owned or rented to any insured which is not an insured location.” See Dufrene v. Duncan, 93,0408 (La.App. 1st Cir.3/11/94), 634 So.2d 19; Kitchens v. Brown, 545 So.2d 1310 (La.App. 1st Cir.1989); Am. States Ins. Co. v. Guillermin, 108 Ohio App.3d 547, 671 N.E.2d 317 (Ohio App. 2 Dist. Jan.17, 1996), appeal not allowed, 76 Ohio St.3d 1409, 666 N.E.2d 569 (Ohio Jul. 03,1996). Under the business pursuits exclusion, the noncovered |inbodily injury or property damage arises out of the business pursuit, rental, or holding for rental of any premises by the insured. Application of the business pursuits exclusion depends on the purpose of the activity at the time of the accident. LeBlanc v. Brousssard, 396 So.2d 535 (La.App.3d 1981). This is determined from the facts and circumstances of each case. The facts and circumstances of this case show that the damages claim arose from the rental of the Central Avenue dwelling by Mims to Stills. Coverage is precluded under the business pursuits exclusion as it pertains to the rental or holding for rental of a premises by the insured.

CONCLUSION

For the reasons explained, we affirm the trial court’s summary judgment dismissing the plaintiffs claims against it. Costs are to be divided equally between the appellants, Rosemary Stills and Tal Mims.

AFFIRMED.

      . From reviewing the facts in Blue Ridge, supra, we understand the court's reference to "maintenance of the tree” to mean the existence of the tree on the property rather than any work, such as pruning or cutting down, done on the tree by Newman. The facts do not suggest that any action of Newman’s caused the tree to fall and damage the neighboring property. However, in this case, it was Mims’ actions in removing the fallen tree from the roof that resulted in injury to LeWil-liam.

      . We note that Mims’ affidavit states that he is "not in the trade, profession or occupation of renting homes .... and was acting on his own behalf and was not engaged in any business pursuit or working in the course and scope of any employment” at the time of the accident. However, he has not asserted an issue of fact as to whether Ms. Stills rented the residence from him and Tommie Lee Mims. His arguments belie such an assertion.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Tommy HAWTHORNE, Appellant.
    No. 42,735-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.
    Louisiana Appellate Project by G. Paul Marx, Lafayette, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, John W. Montgomery, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   LOLLEY, J.

|, The defendant, Tommy Hawthorne, appeals a judgment by the Twenty-Sixth Judicial District Court, Parish of Webster, State of Louisiana, following his guilty plea of aggravated burglary. He was sentenced to eight years’ imprisonment at hard labor. Hawthorne’s appellate counsel has filed a motion to withdraw, along with an Anders brief in support of the motion. The state has filed an appellate brief in this matter concurring that there are no non-frivolous issues to raise on appeal. On July 23, 2007, this court notified Hawthorne that he may file a brief in this appeal within 30 days of its order; however, Hawthorne has not requested the record and has not filed any brief. Accordingly, the motion to withdraw is granted, and Hawthorne’s conviction and sentence are affirmed.

Facts

On May 2, 2006, Hawthorne made an unauthorized entry into Willie Menden-hall’s residence by kicking in the door to the house. He then stole money and a firearm from the residence. Following his arrest, Hawthorne was originally charged by bill of information with aggravated burglary and possession of a firearm by a convicted felon, violations of La. R.S. 14:60 and La. R.S. 14:95.1, respectively. As part of a plea bargain agreement, Hawthorne pled guilty to one count of aggravated burglary with a pre-sentence investigation report in exchange for dismissal of the charge for possession of a firearm by a convicted felon-there was no agreement as to his sentence. Hawthorne was subsequently sentenced to serve eight years’ imprisonment at hard labor with credit for time served. This appeal ensued.

1 ¡¿Discussion

Hawthorne was appointed appellate counsel, which has filed an Anders brief seeking to withdraw on the grounds that after “a conscientious and throrough [thorough] review of the trial court record,” he could find no non-frivolous issues to raise on appeal. See Anders, supra; State v. Mouton, 1995-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). As necessary, Hawthorne’s appellate counsel’s brief outlines the facts and procedural history of the case. See State v. Jyles, 1996-2669 (La.1997), 704 So.2d 241. Hawthorne’s appellate counsel further verifies that he has mailed copies of the motion to withdraw and his brief to Hawthorne in accordance with applicable jurisprudence.

We have thoroughly reviewed Hawthorne’s appellate record. First, we note that no errors patent were found. Next, we have reviewed the transcript from Hawthorne’s sentencing hearing, where the trial court noted that the potential sentencing range for aggravated burglary is imprisonment at hard labor from one to thirty years. See La. R.S. 14:60. The trial court did note the mitigating circumstances as well as the aggravating circumstances in concluding that a “fair and appropriate sentence” for Hawthorne would be eight years’ imprisonment at hard labor. We feel that the record supports the trial court’s sentence of eight years’ imprisonment at hard labor, which, notably, was far below the maximum for this crime. Therefore, our review disclosed no non-frivolous issues and no rulings which arguably support an appeal.

| ¡¡Conclusion

So considering, the motion to withdraw is granted, and Tommy Hawthorne’s conviction and sentence are affirmed.

MOTION GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . Anders v. State of Cal., 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Jimmy Allen JAMES, Plaintiff-Appellant, v. EXPRESS MARKETING, INC., Defendant-Appellee.
    No. 42,740-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Street & Street by C. Dan Street, Monroe, for Appellant.
    Borrello & Dubuclet by Kathleen W. Will, Mark A. Ackal & Associates by Mark Ackal, Lafayette, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   LOLLEY, J.

| plaintiff, Jimmy Allen James, appeals a judgment from the Office of Workers’ Compensation, District 1-E, Parish of Ouachita, State of Louisiana, in favor of Express Marketing, Inc. For the following reasons, we reverse.

FACTS

On December 20, 2005, 26-year-old Jimmy James, a field service technician for Express Marketing, Inc., was installing a satellite dish on a second floor porch at a home in West Monroe, Louisiana. While he was drilling in bolts to secure the equipment, the drill got caught and twisted his body, causing a tingling sensation in his back. James finished the job, and rested the next day-his day off. The following day he went back to work and reported the injury to his manager, Jason Henry. On December 29, 2005, James saw Dr. Richard Frieden, a chiropractor, who recommended that James be restricted to fight duty and wrote a note to that effect, which James gave to Henry.

On January 1, 2006, while working light duty at a house in Monroe, Louisiana, James attempted to raise a window when his back “popped,” and his “knees gave out” causing him to fall. James was unable to move. His coworker on the job with him and the homeowner helped place him into the company car. James eventually went to the emergency room where the doctor advised him to see an ortho-paedic doctor. The orthopaedic doctor took James off work, and wrote a note to that effect which James gave to Henry. A subsequent MRI showed that James suffered a “moderate superiorly migrated central-left posterior disc extrusion at L4-5.” A | ¿neurosurgeon, Dr. Bernie McHugh, recommended surgery. Express Marketing, Inc. (“Express”) denied the claim based on its belief that: the accident may not have occurred; the alleged accident was not timely reported; and, citing La. R.S. 23:1208.1, James failed to truthfully answer previous injury questions at the time of being hired.

James filed his disputed claim for compensation and brought this instant lawsuit. Prior to trial, the parties agreed that James was an employee and agreed to the weekly rate of $454.00. The matter was tried and the Workers’ Compensation Judge (“WCJ”) found that James was injured by an accident in the course and scope of his employment and that his back injury and ruptured disc were caused by the events described above. However, the WCJ dismissed James’ claim with prejudice, concluding that he violated La. R.S. 23:1208.1 warranting a forfeiture of benefits. This appeal ensued.

LAW AND DISCUSSION

Standard of Review

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Nelson v. City of Grambling, 31,303 (La.App.2d Cir.12/09/98), 722 So.2d 358, writ denied, 1999-0073 (La.02/26/99), 738 So.2d 588. The question of whether the claimant is entitled to compensation benefits is ultimately a question of fact, and the WCJ’s resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880 |a(La,1993); Lee v. Heritage Manor of Bossier City, 41,828 (La.App.2d Cir.03/14/07), 954 So.2d 276, writ denied, 2007-736 (La.05/18/07), 957 So.2d 157.

Background

Louisiana R.S. 23:1208.1 provides: Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

The purpose of La. R.S. 23:1208.1 is to allow employers to ask prospective employees about prior injuries. The supreme court has provided guidance on this very issue and explained that this statute was designed to “encourage the employment of physically handicapped employees who have a permanent, partial disability by protecting employers ... from excess liability for workers’ compensation for disability when a subsequent injury to such an employee merges with his preexisting permanent physical disability.” Nabors Drilling USA v. Davis, 2003-0316 (La.10/21/03), 857 So.2d 407, 413. Under certain circumstances, a work injury subsequent to a known permanent partial disability entitles an 14employer to seek reimbursement from the statutorily created Second Injury Fund.

To effectuate the purpose of La. R.S. 23:1208.1, employers give a “Second Injury Fund Questionnaire” which inquires into conditions that may establish a permanent partial disability (“PPD”). Louisiana R.S. 23:1378(F) defines a PPD as “any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become injured.” Thirty conditions listed under La. R.S. 23:1378(F) are presumed permanently partially disabling. Any other questions asked must be narrowly tailored for the purpose of determining the existence of PPDs. See King v. Grand Cove, 1993-779 (La.App.3d Cir 03/09/94), 640 So.2d 348, writ denied, 1994-0865 (La.05/13/94, 641 So.2d 204).

An employee/claimant’s untruthful answers on the questionnaire regarding his permanent partial disability which prejudices his employer’s ability to seek reimbursement from the Second Injury Fund gives rise to an affirmative defense under La. R.S. 23:1208.1, whereby the injured employee forfeits all compensation benefits. Wise v. J.E. Merit Constructors, Inc., 1997-684 (La.01/21/98), 707 So.2d 1214. However, not every untruthful statement on a medical history questionnaire will result in the forfeiture of | ¡¡workers’ compensation benefits for a subsequent work-related injury. Nabors, supra.

Post-Hire Medical History Questionnaire

In his first assignment of error, James argues that the Post-Hire Medical History Questionnaire should not have been admissible as evidence because the questions contained therein were not narrowly tailored and that the warnings contained in the document were wrong and inaccurate.

Louisiana R.S. 23:1317(A) states, in pertinent part:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.

The WCJ is not bound by technical rules of evidence or procedure, but all findings of fact must be based on competent evidence. G.N.B., Inc. v. Jones, 29,779 (La. App.2d Cir.08/20/97), 699 So.2d 466.

Here, in addition to a “Second Injury Fund Questionnaire,” Express created a “Post-Hire Medical Questionnaire” with 86 additional medical-related questions which employees were made to fill out. While we are in serious doubt that this additional questionnaire is in compliance, we need not determine that issue for admissibility purposes. Since this 1 ¡¡questionnaire was the crux of Express’ argument, the WCJ did not err in allowing it into evidence.

Forfeiture of Benefits

At the outset, we note that the WCJ did find that James was injured in the course and scope of his employment with Express. That determination is not in dispute. The limited issue before us is whether the WCJ erred in finding that James forfeited his right to receive benefits due to the false statement that he made on the Post-Hire Medical Questionnaire. A forfeiture of benefits is conditioned upon the presence of three factors that the employer must prove: 1) an untruthful statement; 2) a direct relationship between the answer elicited and the claim for benefits or ability to receive reimbursement from the Second Injury Fund; and, 3) compliance with the statutory notice requirements. Williams v. Fibrebond Corporation, 27,401 (La.App.2d Cir.09/27/95), 661 So.2d 662. So considering, we must first determine whether James made an untruthful statement by indicating “no” on the questionnaire to “back pain” and “back ache.”

After a review of the record, we find that the WCJ committed manifest error in finding that James made an untruthful statement for purposes of La. R.S. 23:1208.1. There is no medical evidence in the record regarding any previous back injury that would rise to the level of a permanent partial disability that hindered James in obtaining employment. The record is clear that James never missed work for “back ache” at any of his previous employment, nor at Express up until this incident. In fact, all of the witnesses testifying at trial stated that James was able to fulfill all the ^physical responsibilities his job required prior to the work-related injury. Express points to medical notes from the various doctors James visited as a result of his back injury. James informed the doctors about his general back pain stemming from when he worked as a waiter at a restaurant and a childhood injury that he thought may be relevant. James, as any patient would, gave the doctors a complete history to aid in his diagnosis and treatment.

At trial, the WCJ made much of James’ response of “rarely” when he was asked about prior back pain. The WCJ believed that “rarely” meant “yes” and James should have indicated the same on the questionnaire. Clearly, the answer is indicative of the fact that James did not have an injury that rises to the level of a permanent partial disability. For purposes of La. R.S. 23:1208.1, general back pain is not covered by the Second Injury Fund. Because we find that James did not submit an untruthful answer to the questionnaire, we pretermit further analysis. Express has failed to prove the first element needed for its affirmative defense. In light of this finding, forfeiture of benefits is not warranted. We reverse and remand for a determination of workers’ compensation indemnity and medical benefits.

Penalties and Attorney Fees

James submits that Express should pay penalties and attorney fees for its failure to reasonably controvert his claim. While La. R.S. 23:1201(F) does provides for penalties and attorney fees, it “shall not apply if the claim is reasonably controverted ....” A claim for workers’ compensation is reasonably controverted if the employer has some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the Isdaimant’s right to benefits has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Balsamo v. Jones, 28,885 (La.App.2d Cir.12/11/96), 685 So.2d 1140. Attorney’s fees should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. J.E. Merit Constructors, Inc., v. Hickman, 2000-943 (La.06/02/00), 762 So.2d 1114.

Here, the WCJ implicitly denied penalties and attorney fees; however, after a review of the record, we reverse. At trial, the senior claims adjuster, Cindy Ca-sarez, explained that she conducted the investigation into James’ claim. She stated that one reason she denied the claim was that Henry, James’ manager, indicated to her that James did not report the injury according to their company policy which entails reporting injuries “immediately.” Casarez agreed that James reported his injury within 48 hours of the incident but that a claim may be denied for this reason as it “depends on the situation.” Casarez was unaware of the statute that governs the timeliness of reporting an incident to the employer, La. R.S. 23:1301, which allows for a report to be made within 30 days after the date of injury. Clearly, denial of the claim based on untimeliness is not supported by the record.

RNext, Casarez explained that James admitted to having previous back pain from standing for long periods of time when he worked in the restaurant business and considered this a “pre-existing condition.” However, after noting key symptoms that could be present when an individual has a ruptured disc (e.g., pain down the legs), she agreed that James did not have any of these symptoms prior to December 20, 2005. Casarez also seemed to believe that answering “no” to back pain on the questionnaire, when one had general back pain, was per se an untruthful statement for the purposes of La. R.S. 23:1208.1. She admitted that she was unaware of other factors that must be looked into if an employee was thought to have made a “false statement” on the Post-Hire Medical Questionnaire before forfeiting benefits.

Casarez also explained that the claim was denied based on the fact that the December 20, 2005 incident was “an unwit-nessed accident,” causing her to question if the accident occurred at all. However, she did admit to having information on James’ visit to the chiropractor soon after the incident. In addition, she was aware of the events that occurred on January 1, 2006, when a homeowner and a coworker helped James out of the house being worked on, and that James subsequently went to the emergency room. Casarez also admitted reading the medical record from the hospital where James differentiated between his sporadic lower back pain and the pain he felt after the accident.

The record bears out that at every instance James qualified that his previous back pain was a result of standing for long hours, a common occurrence for many. James stated he never needed to go to a doctor for his |inback prior to this incident; as a result, there are no references in his medical record to previous symptoms indicative of a ruptured disc. Nothing in the record supports Express’ belief that this claim was reasonably controverted, nor does it reflect that a bona fide dispute existed. Accordingly, we reverse the WCJ’s failure to award penalties and attorneys fees. We assess $2,000.00 in penalties and award $2,000.00 in attorney’s fees.

CONCLUSION

For the foregoing reasons, we affirm the judgment insofar as it held that James was injured in a work-related accident. In all other respects the WCJ is reversed and the matter is remanded for a determination of benefits and medical expenses Jimmy James is entitled to receive in addition to the penalties and attorney fees. Costs of this appeal are to be borne by Express Marketing, Inc.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . The workers' compensation statutes provides two separate anti-fraud forfeiture provisions the employers may use to de fend against paying a claim, La. R.S. 23:1208 and La. R.S. 23:1208.1. As explained by the supreme court in Wise v. J.E. Merit Constructors, Inc., 1997-684 (La.01/21/98), 707 So.2d 1214, La. R.S. 23:1208 applies to situations where, during a pending claim, a claimant has made a false statement for the specific purpose of obtaining workers' compensation. On the other hand, La. R.S. 23:1208.1, at issue in the instant case, is applied when a falsity was made on an employer’s medical questionnaire, before the accident or injury.

      . The notice portion of Express’ Post-Hire Medical History Questionnaire states that a fine of not more than $500.00 and/or imprisonment for not more than 12 months AND a forfeiture of compensation may result for failure to answer truthfully. Clearly, La. R.S. 23:1208.1 does not call for fine or imprisonment, while La. R.S. 23:1208 does. As explained above, these two statutes serve different purposes. Therefore, we question whether Express’ "notice” combining the two penalties is truly in compliance. In addition, it is highly unlikely that all 86 additional questions would be considered narrowly tailored as is required for the determination of a PPD.


author: CARAWAY, J.

text:
    Judge WILSON, Plaintiff-Appellant, v. BROWN BROTHER, Defendant-Appellee.
    No. 42,748-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.
    Judge Wilson, pro se.
    Johnson, Stiltner & Rahman by Thomas D. Travis, Baton Rouge, for Appellees, Player’s Building & Remodeling and LWCC.

      Rabalais, Unland & Lorio by John J. Rabalais, Janice B. Unland, Robert T. Lo-rio, Covington, for Appellee, Pro Build Construction.
    Zelda W. Tucker, for Appellee, Caddo Parish School Board.
    Before CARAWAY, DREW and MOORE, JJ.
   CARAWAY, J.

_JjThe plaintiff in this workers’ compensation action had his claims against a party who was not the direct employer dismissed after failing to make discovery responses. The plaintiff was unrepresented by counsel and was given various opportunities to respond by multiple orders compelling discovery. The plaintiff appeals the dismissal. Finding no abuse of discretion by the workers’ compensation judge (“WCJ’”), we affirm.

Facts

i

In May 2006, the plaintiff, Judge Wilson (“Wilson”), was working on a construction job for Timothy Brown (d/b/a Brown Brothers) when Wilson injured his hand. A month later, Wilson filed this Form 1008 workers’ compensation claim in proper person. He listed Timothy Brown as his employer. In blank number 13 on the Form 1008 entitled “Dependent/ HCP/ Other,” Wilson circled “Other” and included Pro Build Construction (“Pro Build”) as another “contractor” involved in the dispute. Pro Build subcontracted with Brown Brothers for work on the project. Pro Build eventually filed an answer and initiated incidental claims against Brown Brothers and Player’s Building and Remodeling, L.L.C. (“Player’s”).

Over the course of approximately ten months between Pro Build’s answer and March 2007, Pro Build attempted discovery in various inquiries made on Wilson. Because of Wilson’s failure to respond, Pro Build filed motions to compel discovery and eventually, after insufficient discovery responses, a motion to dismiss the action. The WCJ rendered three separate | «.orders directing Wilson’s compliance. The final order dated February 15, 2007, directed Wilson to show cause why a dismissal should not be granted. After a March 2007 hearing with no response by Wilson and discovery still unsatisfied, the WCJ dismissed Wilson’s claims “in their entirety, with prejudice.”

Wilson now appeals.

Discussion

Patiently, over a lengthy period of time, the WCJ ordered Wilson’s responses to discovery. Upon Pro Build’s second motion to compel, Wilson attended a hearing and was directed to act by the WCJ. Thereafter, Wilson continued in his delinquency and also failed to appear for a scheduled medical evaluation. At the final hearing scheduled in March 2007, despite notice, Wilson failed to attend.

Although dismissal of the action is a harsh penalty which should be applied only in extreme circumstances, Article 1471 of the Code of Civil Procedure authorizes such dismissal. La. C.C.P. art. 1471(3); Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199. Dismissal is a sanction of last resort only to be imposed where a party has failed to comply with a court order of discovery and only after an opportunity to be heard has been afforded the litigant. Hutchinson v. Westport Ins. Corp., 04-1592 (La.11/8/04), 886 So.2d 438.

[sIn the present action, as in the Hutchinson case, the plaintiff was unrepresented by counsel. Nevertheless, Wilson appeared at multiple hearings on the motions to compel and was heard by the WCJ, who gave him additional time for compliance. From our review of the Hutchinson ruling and the particular instances of noncompliance with discovery in this case, the WCJ did not abuse his discretion in the dismissal of Wilson’s claims against Pro Build.

Accordingly, the ruling of the WCJ is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . The defendant is incorrectly referred to as "Brown Brother" on the initial pleading filed by Wilson.

      . We need not address the scope of the dismissal in regard to Wilson’s claim against his employer. Nevertheless, the dispute appears to pertain only to Pro Build’s discovery actions. Additionally, since Wilson made no claim against Player’s, the dismissal of Wilson's principal demand against Pro Build would also end Pro Build’s third party claim.


text:
    Joe Ann HOLLAND, Plaintiff-Appellee v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 42,753-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Hayes, Harkey, Smith & Cascio by John C. Roa, Monroe, for Appellants.
    Anthony Bruscato, Monroe, for Appel-lee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

h State Farm Mutual Automobile Insurance Company (“State Farm”) and Robert J. Allan (“Allan”) appeal a judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, in favor of Joe Ann Holland. For the following reasons, we affirm.

Facts

On May 16, 2005, Holland was driving her vehicle on Highway 15 in Ouachita Parish, Louisiana. Immediately prior to the collision at issue, Holland was following her friend, Shanika Caldwell, on Highway 15 in route to take Holland’s vehicle to a repair shop on Miller Road, which runs off of Highway 15. Neither woman knew the exact location of Miller Road, and Caldwell actually passed it up; however, immediately upon passing it, she turned on her turn indicator, alerting Holland to turn right on Miller Road. Caldwell, having passed up Miller Road, pulled off on the shoulder of Highway 15 and observed Holland make the right turn onto Miller Road. Immediately after turning right onto Miller Road, Holland’s vehicle was struck in the rear by Allan, who was following behind her and who was also attempting a right turn onto Miller Road from Highway 15. Following the accident, Holland was transported to the hospital by ambulance. She was diagnosed with muscle strain of the left shoulder, neck, and chest and was treated for her injuries.

Holland filed this lawsuit against Allan and his insurer, State Farm. After a trial of the matter, the trial court rendered judgment in favor of Holland and it awarded her the following: general damages in the amount 12of $15,000.00; medical special damages in the amount of $2,821.89; property damage of $2,918.45; and, $1,250.00 for the loss of use of her vehicle. State Farm and Allan appeal the judgment.

Discussion

The appellants raise three assignments of error on appeal, the first two of which are related. In their first assignment of error, appellants argue that the trial court committed manifest error in rendering a judgment that was contrary to the law and evidence presented. Their second assignment of error is related to the same issue, with the appellants urging that the trial court committed manifest error by not finding all, or at least some comparative fault, on the part of Holland. Specifically, they argue that Holland’s actions created a sudden emergency that was unavoidable to Allan, thus, some fault should have been assessed to her. We disagree.

A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State through Dept, of Tramp, and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989); Barnes v. Reed, 32,380 (La.App.2d Cir.10/29/99), 743 So.2d 936. Under the manifest error standard, the linchpin is whether the trial court’s findings are reasonable; even if the appellate court feels its own evaluation of the evidence is more reasonable, the trial court’s findings cannot be reversed if they are in fact reasonable. Lewis v. State through Dept, of Transp. and Development, 1994-2370 (La.04/21/95), 654 So.2d 311. In other words, |3the appellate court may not reverse simply because it is convinced that had it been sitting as the trier of fact it would have ruled differently. Lewis, supra. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra. Moreover, where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra; Wilhite v. Thompson, 42,-395 (La.App.2d Cir.08/15/07), 962 So.2d 493.

Additionally, the manifest error rule also regulates a trial court’s finding regarding the allocation of fault. Clement v. Frey, 1995-1119 (La.01/16/96), 666 So.2d 607. The trier of fact is owed great deference in its allocation of fault and may not be reversed unless clearly wrong or manifestly erroneous. Buchignani v. Lafayette Ins. Co., 41,384 (La.App.2d Cir.08/23/06), 938 So.2d 1198.

The duty of a following motorist is governed by La. R.S. 32:81(A), which provides:

A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

The following motorist in a rear-end collision is presumed to be at fault. Taylor v. Voigtlander, 36,670 (La.App.2d Cir.12/11/02), 833 So.2d 1204; Wheelis v. CGU Ins., 35,230 (La.App.2d Cir.12/07/01), 803 So.2d 365. ] 4To rebut the presumption and avoid liability, the following motorist must prove that he had his vehicle under control, he closely observed the lead vehicle, and he followed it at a safe distance under the circumstances. Id. Alternatively, the following motorist must show that the lead driver negligently created a hazard which could not reasonably be avoided. Id. This alternative exception to the presumption is known as the sudden emergency doctrine. Under the sudden emergency doctrine, a person 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 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. Linnear v. Mutual Service Cas. Ins. Co., 35,152 (La.App.2d Cir.10/31/01), 799 So.2d 634; Jackson v. Scott Truck and Tractor, Inc., 31,933 (La. App.2d Cir.05/05/99), 736 So.2d 987.

In the case sub judice, the trial court found Allan to be completely at fault in the rear-end collision with Holland. As stated, State Farm and Allan maintain that the ruling was contrary to the law and evidence, and that Holland should have been assessed some portion of fault for the collision. Here, the trial court was faced with a “he says, she says” scenario. Allan claims that Holland negligently created a hazard which he could not avoid when she swerved to the left as she completed her turn onto Miller Road. As a result of her alleged actions, appellants state that Holland should share in the fault. However, Holland disputes his assertion regarding her actions |5in making her right turn. Instead, she asserts that Allan was simply driving too fast and following too closely and thus, rear-ended her vehicle. Caldwell corroborates Holland’s version of the events. There were no other witnesses to the collision. Notably, the testimony of the investigating officer or the accident reconstructionist experts did little, if anything, to give more or less credibility to either side. Moreover, the trial court also had the admission by Allan that he bore some fault for the accident. Considering the record before us, the trial court was clearly within its province in assessing the credibility of the witnesses in this case and reaching the conclusion that Allan, as the driver of the vehicle following Holland’s, was completely at fault in this rear-end collision. It was not unreasonable for the trial court to conclude that the only reason for the collision was that Allan was traveling too closely to Holland’s vehicle. The trial court’s judgment on this issue was not manifestly erroneous.

In its third assignment of error, State Farm and Allan maintain that the trial court’s general damage award of $15,000.00 was excessive. In assessing general damages in tort cases, much discretion is left to the judge or jury. Before an appellate court may disturb such an award, 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. Brown v. Brookshire’s Grocery Co., 38,216 (La. App.2d Cir.03/12/04), 868 So.2d 297. Only after an articulated analysis of the facts discloses an abuse of discretion, is it appropriate for a reviewing court to resort to prior awards in similar cases. O’Brien v. |fiRemington Arms Co., Inc., 601 So.2d 330 (La.App. 2d Cir.1992), writ denied, 604 So.2d 1003 (La.1992). If the award is abusively high, it is reduced to the highest amount the trier of fact could have awarded. Jones v. Super One Food s/Brook-shires Grocery Co., 33,683 (La.App.2d Cir.08/23/00), 774 So.2d 200. For an award to be considered excessive and an abuse of discretion, it must be so high in proportion to the seriousness of the injury that it shocks the conscience. Id.

In the present case, the trial court made no findings in connection with its general damage award made to Holland. However, after reviewing the record in its entirety as well as the applicable jurisprudence, we cannot say that the general damages award in this case is abusively high. At trial, Holland testified that she experienced neck and back pain and migraine headaches after the collision. She stated that the pain did decrease gradually three to four months after the accident; however, she further explained that at the date of trial, fifteen months after the collision, she had not reached her pre-collision condition and was continuing to experience some level of pain. Other than presenting examples of lower general damage awards in cases where generieally similar facts existed, the appellants have not urged any argument on appeal to persuade us that such a comparison of prior awards should be undertaken and a decrease in the general damages award should be made in the particular case. Therefore, we conclude that the trial court’s general damage award, although somewhat high, was not an abuse of discretion.

|7Conclusion

For the foregoing reasons, the trial court’s judgment in favor of Joe Ann Holland is affirmed. All costs of this appeal are assessed to State Farm Mutual Automobile Insurance Company and Robert J. Allan.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    Lottie WILLIAMS, Plaintiff-Appellant v. A & M OPERATING COMPANY, INC., d/b/a Restaurant First/Popeye’s and XYZ Insurance Company, Defendants-Appellees.
    No. 42,754-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      S. Douglas Busari & Associates, LLC, by S. Douglas Busari, for Appellant.
    Theus, Grisham, Davis & Leigh, LLP by Phillip D. Myers, Monroe, for Appellees.
    Before BROWN, STEWART, and GASKINS, JJ.
   BROWN, Chief Judge.

| t Plaintiff, Lottie Williams, appeals from a judgment in favor of defendant, A & M Operating Company, Inc. d/b/a Restaurant FirsVPopeye’s, based upon the court’s finding that defendant did not breach its duty to plaintiff. Because we find that the trial court did not commit manifest error, we affirm.

Facts and Procedural Background

On July 10, 2003, plaintiff purchased fried chicken from the Popeye’s restaurant at 410 East Green Street in Tallulah, Louisiana. Plaintiff, dining with three other police officers at the police station, bit into a piece of chicken and sustained an injury when a staple embedded in a chicken wing stuck in her gum. She did not see the staple prior to biting into the chicken wing because it was covered in batter. As a result of the incident, plaintiff contends that she sustained serious personal and emotional injuries and that she had to be on medication for those injuries through February 2004.

Upon conclusion of the trial, the trial court rendered judgment in favor of defendant, finding that it did not act unreasonably in selecting, preparing, and cooking the food. The trial court’s determination was based on its findings that no employee of Popeye’s inserted the staple into the chicken wing, and that there was little that Popeye’s could have done to eliminate this risk. From this adverse ruling plaintiff has appealed.

Discussion

Our supreme court has determined that a restaurant is not strictly liable for the food it serves. In Porteous v. St. Ann’s Café efe Deli 97-0837 12(La.05/29/98), 713 So.2d 454, a restaurant-harmful food product case, the supreme court found that the proper analysis to determine a defendant’s liability is the traditional duty risk tort analysis. To determine whether a defendant acted negligently, the plaintiff must prove the existence of five elements: (1) duty; (2) breach of duty; (3) cause-in-fact: (4) scope of liability or scope of protection: and (5) damages. Porteous, supra; Roberts v. Benoit, 605 So.2d 1032 (La.1991) (on rehearing).

In addressing the issue of a commercial restaurant’s duty to serve food free of injurious substances, the supreme court in Porteous, supra at 457, stated that:

A food provider, in selecting, preparing and cooking food, including the removal of injurious substances, has a duty to act as would a reasonably prudent man skilled in the culinary art in the selection and preparation of food.

In the case sub judice, the scope of defendant’s duty and whether there was a breach of duty are at issue. Plaintiff contends that Popeye’s had a duty to remove injurious substances from its food and that by failing to remove the staple from the chicken wing it breached that duty. Defendant, however, asserts that its procedures for preparing and cooking the Ischicken — visual inspection, cleaning, marinating, battering and frying — were those of a reasonable man skilled in the culinary arts.

In support of defendant’s position, Melissa Martin, general manager of the Popeye’s in Tallulah at the time of the incident at issue, testified that in the seven years that she worked at the Popeye’s in Tallulah there were never any reports of a staple or any other foreign object being found in a piece of chicken. When questioned about the preparation process of the chicken, Ms. Martin testified that the outside of each piece of chicken is inspected during the seasoning process, but that the pieces are not cut open to search for any possible foreign objects since the chicken is delivered pre-cut and pre-washed to the restaurant by Montgomery Poultry.

Plaintiff, however, asserts the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur allows for negligence to be inferred when: (1) the circumstances surrounding the event are such they would not normally occur in the absence of negligence on someone’s part; (2) the instrumentality was in the exclusive control of the defendant; and (3) the negligence falls within the duty of care owed the plaintiff. Poplar v. Dillard’s Dept. Stores, Inc., 03-1023 (La.App. 5th Cir.12/30/03), 864 So.2d 789.

Based on the aforementioned testimony of Ms. Martin, it is clearly evident that the doctrine of res ipsa loquitur is not applicable in the present case. Ms. Martin testified that the chicken was plucked, pre-cut, prejwashed,4 packaged, and delivered by someone other than Popeye’s. Thus, the chicken was not in the exclusive control of defendant and, accordingly, the doctrine of res ipsa loquitur does not apply.

Defendant’s duty was to act as a reasonably prudent man skilled in culinary arts in the selection and preparation of food. The trial court’s determination, that defendant did not breach its duty to act in a reasonably prudent manner in selecting, preparing and cooking the food, was not manifestly erroneous.

Conclusion

For the foregoing reasons, the judgment of the trial court is hereby affirmed.

      . Plaintiff also named as defendant "XYZ Insurance Company.”

      . Prior to Porteous, supra, the Louisiana Courts of Appeal had been applying the common law foreign-natural test and/or the reasonable expectation test in restaurant-harmful food product cases. Under the foreign-natural test, as applied by Louisiana courts, if the injurious substance was "foreign” to the food then the restaurant was strictly liable, but if the injurious substance was "natural” to the food then recovery was barred, unless the restaurant was negligent in failing to discover and remove the injurious natural substance. Under the reasonable expectation test, liability would be imposed on a restaurant if the customer had a reasonable expectation that the injurious substance would not be found in the food product, but recovery would be barred if the customer should have reasonably expected the injurious substance in his food. The supreme court in Porteous, supra, declined to adopt either of these tests and instead decided that the traditional duty risk tort analysis would be employed to determine liability, with the foreign-natural test and the reasonable expectation test as factors to be considered.

      . In Poplar, supra, the Fifth Circuit found that the doctrine of res ipsa loquitur applied when the plaintiff bit into a shrimp po-boy and broke her teeth on a hard foreign object. Unlike the case currently before us, the court in Poplar determined that all three elements of the res ipsa loquitur doctrine were present.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Jackie Otis LLOYD, Appellant.
    No. 42,793-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Spencer Hays, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Andrew C. Jacobs, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   GASKINS, J.

|! Originally charged with manslaughter in the shooting death of his brother, the defendant, Jackie Otis Lloyd, pled guilty to negligent homicide. He was sentenced to five years at hard labor with all but three years suspended and with supervised probation for the last two years of the sentence. The defendant appeals his sentence as excessive. We affirm.

FACTS

On September 4, 2006, the defendant and his brother, Kenneth Lloyd, were at a family gathering when a verbal dispute arose between them. As the defendant and his family were leaving the event, the brother threw a stepladder which broke out the rear window of the defendant’s truck. The defendant armed himself with a gun from his vehicle. He pointed the gun at his brother and shot him in the chest. The defendant claimed that it was an accident. The brother died.

The defendant was originally charged with manslaughter. Pursuant to a plea bargain, the defendant was allowed to plead guilty to an amended charge of negligent homicide. The trial court ordered a presentence investigation (PSI) report.

At a sentencing hearing, the mother of the defendant and the victim testified that the defendant lived with her and was gainfully employed. She stated that he financially supported her and the victim’s children, who also lived with her. She, the victim’s daughter, and the defendant’s wife all testified that the defendant’s incarceration would cause great hardship to their family. The defense introduced letters requesting leniency.

| j,The trial court sentenced the defendant to five years at hard labor, all but three years of which was suspended. The court also imposed active supervised probation for two years.

The defendant’s timely motion to reconsider sentence was denied. This appeal followed.

LAW

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. 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 trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance "with its provisions. 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. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La. App.2d Cir.1/28/04), 865 So.2d 284, units denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); \^State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, unit denied, 2004-2606 (La.6/24/05), 904 So.2d 728. 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, 2000-1467 (La.2/2/01), 783 So.2d 385.

Second, 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. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonan-no, 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; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Robinson, 40,983 (La. App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La. App.2d Cir.12/13/06), 945 So.2d 267; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of |4manifest abuse of that discretion we may not set aside a sentence as excessive. State v. June, 38,440 (La. App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, unit denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

Deterrence is a legitimate sentencing object, State v. Howard, 262 La. 270, 263 So.2d 32 (1972), even though a defendant has demonstrated efforts to reform. State v. fully, 430 So.2d 124 (La. App. 2d Cir.1983), unit denied, 435 So.2d 438 (La.1983); State v. Dagenhart, 39,874 (La.App.2d Cir.8/17/05), 908 So.2d 1237, writ denied, 2005-2421 (La.4/24/06), 926 So.2d 539.

The original charge of manslaughter carried a sentencing exposure of up to 40 years at hard labor. The amended charge to which the defendant was allowed to plead, negligent homicide, has a potential penalty of imprisonment with or without hard labor for not more than five years, a fine of not more than $5,000, or both.

DISCUSSION

The defendant argues that the trial court failed to give adequate consideration to the accidental nature of the incident, his work history, and his family’s need for his financial support. He contends that the trial court should have suspended the entire sentence.

Before imposing sentence, the trial court articulated its reasons. It expressed great concern about the “volatile combination” of guns and alcohol. The court focused on the defendant’s use of a dangerous weapon while under the influence of alcohol and the ensuing loss of his own |5brother’s life. In mitigation, the trial court considered the 31-year old defendant’s status as a first felony offender, his remorse, and his work history. However, the court found that a lesser sentence would deprecate the seriousness of the offense.

Negligent homicide is the killing of a human being by criminal negligence. La. R.S. 14:32. Criminal negligence exists when there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. La. R.S. 14:12. The trial judge was appropriately concerned that the defendant armed himself with a dangerous weapon designed to kill, intentional conduct reflecting a gross disregard for the safety of others.

We note that the defendant received great benefit from the plea bargain which reduced his sentencing exposure from a maximum of 40 years to five years. Also, we find the sentence is not out of line with similar cases. In State v. McFerson, 583 So.2d 516 (La.App. 3d Cir.1991), writ denied, 588 So.2d 113 (La.1991), the defendant brought a gun to a nightclub and while moving the gun from his pants pocket to the front of his pants, someone bumped the defendant and the gun went off, killing the victim. The defendant was convicted of negligent homicide and sentenced to three years at hard labor. In that case, the sentencing judge found that 19-year old McFerson was “a good man” with no criminal history but, | ^nonetheless, concluded that “guns, whiskey, and honkey tonks are a deadly formula.”

We find that the trial court was within its discretion in imposing the sentence given in this case. The sentence is tailored to both the offender and the offense and does not shock the sense of justice.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . We note that, according to the PSI report, the defendant in the instant case had a misdemeanor criminal history.


text:
    STATE of Louisiana, Appellee, v. Johnny Preston STEPHENS, Jr., Appellant.
    Nos. 42,796-KA, 42,797-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Annette Fuller Roach, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Dale N. Montgomery, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW, and LOLLEY, JJ.
   BROWN, Chief Judge.

h Defendant, Johnny Preston Stephens, Jr., was charged by bill of information with three counts of aggravated incest. Pursuant to a plea agreement, defendant pled guilty to one count of aggravated incest, another count was reduced to molestation of a juvenile, and the third charge was nolle prossed. The trial court subsequently imposed the maximum sentence in each case, 20 years at hard labor for aggravated incest and 10 years at hard labor for molestation of a juvenile with the sentences to run consecutively. A timely motion for reconsideration of sentence was denied and this appeal followed. For the following reasons, we affirm defendant’s convictions and sentences.

Facts

In January 2006, the father of three young girls reported to police that his daughters had been sexually assaulted by their step-grandfather, Johnny Stephens, Jr. According to the father of the girls, defendant fondled the oldest child (14 years old) and the youngest child (7 years old). The middle child denied ever having been touched by defendant. During the course of the investigation of the crime, the victims’ mother was contacted. The victims’ mother informed police that her sister had also been abused by defendant.

Following up on this information, police interviewed this victim, who reported that defendant began abusing her shortly after moving in with her and her mother in 1998. When the victim was 15 or 16 years old, she became pregnant with defendant’s child. At defendant’s insistence, the pregnancy was aborted. Protestations of the abuse were ignored by the ^victim’s mother (who by this time was defendant’s wife). The abuse continued from 1999-2001, which is when the victim moved from the home to live with her sister.

In a statement to the police, defendant admitted that he had sexual intercourse with his stepdaughter which he alleged began when she was 16 years old. According to defendant, the victim was curious about sexual matters and he believed their acts to be consensual. Defendant denied abusing his two step-granddaughters in any way. As a result of the investigation, defendant was arrested for three counts of aggravated incest.

Discussion

Defendant contends that the trial court erred in failing to find or consider any mitigating factors in determining the sentences in these consolidated cases. He also alleges that the sentences imposed are excessive.

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. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Square, 433 So.2d 104 (La.1983); State v. McCall, 37,442 (La.App.2d Cir.08/20/03), 852 So.2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So.2d 858. 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.05/31/96), 674 So.2d 957, cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). 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.

The record shows that the trial court considered the appropriate factors in determining defendant’s sentences. During an on-the-record review of the pre-sen-tence investigation report, the trial court discussed defendant’s background, including his age, family ties, employment history, and criminal history. The court noted that the 51-year-old defendant was a college graduate and a former band director for Bossier Parish Community College who worked various jobs throughout his employment history. Defendant was found to be a third felony offender with prior convictions for possession of cocaine and sexual battery. Significantly, the sexual battery charges were originally billed as aggravated rape and involved two acts of anal intercourse with defendant’s then 10-year-old stepson. The court observed that defendant spent time in prison for these offenses and was paroled three times on the charges. Twice his parole was revoked and he was returned to custody. Apparently defendant was on parole when he began the sexual exploitation of his stepdaughter. The trial court, contrary to defendant’s assertion, was not required to give any factor more weight, including defendant’s current health conditions and/or the length of time between the current offenses and his previous felony convictions.

As for constitutional excessiveness, 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 |4suffering. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dortkey, 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, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La. App.2d Cir.01/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

In the instant case, defendant, a third felony offender (and repeat sex offender), received a substantial benefit by gaining a reduction in his potential sentencing exposure by way of his plea agreement. Defendant’s potential sentencing exposure was three maximum terms of 20 years had he been convicted of all of the offenses with which he was charged. In light of the facts of this case, we find no constitutional error in the trial court’s imposition of consecutive terms of 20 years at hard labor on the aggravated incest charge and 10 years on the molestation charge Defendant had a pattern of abusing his young victims after establishing relationships with the children’s mothers. The instant offenses are even more egregious when his prior conviction for the same type of activity is considered.

Conclusion

For the reasons set forth above, defendant’s convictions and sentences are AFFIRMED.

      . This was from an earlier marriage and is not related to the children involved in the present case.