text:
    Twilynn LINDSEY, On Behalf of the Minor, Garren LINDSEY, Plaintiff-Appellant v. The CADDO PARISH SCHOOL BOARD, John Webb, and Verdis Pruitt, Defendants-Appellees.
    No. 41,854-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2007.
    Rehearing Denied April 12, 2007.

      The Pesnell Law Firm, by William Alan Pesnell, Billy R. Pesnell, J. Whitney Pes-nell, Shreveport, for Appellant.
    Lemle & Kelleher, L.L.P., by Dale G. Cox, Shreveport, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   DREW, J.

pTwilynn Lindsey, on behalf of her minor son, Garren Lindsey, appeals a trial court judgment denying all relief for an alleged improper search of her son at school. Finding this a frivolous appeal, we affirm in all respects, assessing all court costs and additional legal fees against plaintiff.

FACTS

Stephanie Holland and Amber Dove, two Southwood High School students, were tutoring Garren Lindsey, 15 years of age at the time, in the counseling complex on campus. The girls left the complex to run errands for Mrs. St. Angelo, a school employee, leaving Garren alone at the table where the three students had been seated. Stephanie left her purse and wallet at the table.

When Stephanie returned, she discovered that $50 was missing from her purse. She reported this to Mrs. St. Angelo, who contacted:

• the school resource officer (“S.R.O.”), Caddo Sheriffs Office Deputy Michael McDaniel; and
• Southwood High School’s Security coordinator, John Webb, an employee of the Caddo Parish School Board.

Stephanie advised the authorities that Garren was a possible suspect, since the money went missing in the short time frame when she was out of the room.

McDaniel and Webb were unable to find the missing money during their searches of:

• the room, including Mrs. St. Angelo’s desk and trash cans;
• Stephanie’s purse;
• Amber’s purse; and
| ¡>» the pockets, shoes, socks, and back packs of all three teenagers.

At McDaniel’s suggestion, Webb took Garren into the boys’ bathroom and asked the young man to fold down his waist band, to which request Garren immediately complied, without objection. No currency was found. Webb never touched Gar-ren’s body during the search. Garren’s mother filed this suit on his behalf, complaining that her son had been embarrassed and humiliated because of this alleged unreasonable search and seizure, which was conducted without a warrant.

The learned trial court denied any relief to Mrs. Lindsey, terming this a frivolous lawsuit, expressing doubts as to Garren’s credibility. There is no way for this opinion to be written more succinctly than the trial court’s excellent oral ruling at the conclusion of the trial.

LAW

The people are protected from unreasonable searches and seizures. U.S. Const, amend. IV.

In Louisiana, the people are further guaranteed the right of privacy. La. Const, art I., Sec. 5. The subtle distinction has seldom made a difference in the disposition of search and seizure cases in recent years. See, for example, State v. Jackson, 2000-0015 (La.7/6/00), 764 So.2d 64; State v. Kelley, 2005-1905 (La.7/10/06), 934 So.2d 51; and State v. Sherman, 2005-0779 (La.4/4/06), 931 So.2d 286. Compare, State v. Tucker, 626 So.2d 707 (La.1993).

|3The Fourth Amendment applies to searches conducted by school authorities. New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).

Public high school students have a lesser expectation of privacy than the general public. However, students do not shed their constitutional rights at the schoolhouse door. Joy v. Penn-Harris-Madison School Corp., 212 F.3d 1052 (7th Cir.2000).

Students in schools have a lesser expectation of privacy than members of the population in general. Milligan v. City of Slidell, 226 F.3d 652 (5th Cir.2000).

The reasonableness of seizures must be determined in light of all of the circumstances, with particular attention being paid to whether the seizure was justified at its inception and reasonable in scope. Hassan v. Lubbock Independent School District, 55 F.3d 1075 (5th Cir.1995).

A warrant is not necessarily required before searching a student, and the burden for a reasonable search in a school setting is not probable cause, but the much lesser burden of reasonable suspicion. See Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).

What this case boils down to is the credibility call of the trial court, and the ultimate question as to whether the actions taken were reasonable. We find nothing in this record to dispute the learned trial court’s finding, and we wholeheartedly agree that the actions of the officers here were eminently reasonable.

|4Normally, to search a citizen for evidence would require that the officer has probable cause to believe the person possesses the evidence or contraband.

In a school setting, considering the lesser expectation of privacy, this action only requires a far lesser burden, reasonable suspicion, that the person possesses evidence or contraband.

The search must be reasonable at its inception, and reasonably carried out. Here, the search was proper in all respects. The brief searches conducted were effective, but only as intrusive as required by the circumstances.

Law officers are charged to choose a reasonable approach to, if possible, rule out alleged criminality and end the interaction. That is what the authorities did here.

Plaintiff complains that a search warrant should have been secured. Had the authorities chosen that course, then it is likely that the plaintiff would complain that the search process took hours to conclude, lasting into the late afternoon on a school day. Likewise, had the officer not removed Garren to the boys’ bathroom for the search, there likely would have been complaints about having his waistband searched in front of the ladies who were present.

| .FINDING

The gentlemen in question handled the situation appropriately, reasonably, and legally. They quickly defused the situation, showing discretion and tact in their dealings with all four persons involved.

Taking Garren into the boys’ bathroom for the peek within his waistband showed a sensitivity to his feelings, causing much less embarrassment than if the waistband check had been done in the presence of the three females.

This incident occurred late in the day. It would have been much more onerous an intrusion had the officers held Garren at school or in another confined place while they sought a search warrant, which would have extended the investigation unnecessarily. Instead, the officers concluded the entire matter in a matter of minutes.

We find the handling of this unpleasant situation to have been conducted reasonably, and thus, lawfully. We affirm the trial court, in all respects, and find that this was a frivolous appeal. Accordingly, we assess $750 against plaintiff for legal fees incurred in the defense of this appeal, in favor of counsel for the Caddo Parish School Board.

IMPEACHMENT

Ms. Lindsey complains that the trial court erred in refusing to allow her lawyer to utilize a withdrawn and replaced brief of counsel to cross-examine Deputy McDaniel. There is simply no authority for this type of impeachment. The trial court was correct to disallow usage of this creative, but illegal tactic.

| .DECREE

The trial court’s ruling is affirmed in all respects. We also award $750 against plaintiff for legal fees incurred in the defense of this patently frivolous appeal, in favor of counsel for the Caddo Parish School Board.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

      . The writer feels that reasonable suspicion amounts to something like a 25% probability, while probable cause amounts to a 50% + probability. Amazingly, there is jurisprudence that takes the stunning position that the standard of probable cause, required as a threshold for many criminal enforcement actions, can amount to less than a 50% probability. To the writer, who admittedly went to public schools, it is probable, that the word “probable " means that something is probable, which seems to indicate that something must be more likely than not. No judge in this state would sign an arrest warrant without being convinced that it is more likely than not that the defendant did the deed. Not gonna happen.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Kimberly LEE, Plaintiff-Appellant v. HERITAGE MANOR OF BOSSIER CITY, Defendant-Appellee.
    No. 41,828-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2007.

      Fischer & McMahon, by Mark Kenneth Manno, for Appellant.
    Rabalais, Unland & Lorio, by John Joseph Rabalais, Paul Eric Harrison, Cov-ington, Heather W. Blackburn, for Appel-lee.
    Before CARAWAY, DREW and SEXTON (Pro Tempore), JJ.
   DREW, J.

Iiln this workers’ compensation case, the employee appeals a judgment denying her claims for post-termination Supplemental Earning Benefits (“SEBs”), cervical disc surgery, and additional penalties and attorney fees.

We affirm the judgment in part and reverse the judgment in part.

FACTS

Kimberly Lee was employed as a Certified Nursing Assistant and van driver at Heritage Manor nursing home. Lee injured her cervical spine on April 27, 2004, when she moved a nursing home resident from his bed to a chair.

Following the incident, Lee was treated by her regular physician, Dr. Carter Boyd, on May 3, 2004. Dr. Boyd noted that Lee had injured her neck and was experiencing pain down her spine and numbness in both legs, with the right leg worse. A cervical spine MRI taken on May 11, 2004, revealed degenerative disc disease mostly at C5-6 and C6-7, with C5-6 as the most affected. A lumbar spine MRI was normal.

Dr. Boyd referred Lee to Cornerstone Rehabilitation, where she received a Functional Capacity Evaluation (“FCE”) on July 1, 2004, and was evaluated on July 15, 2004. The summary of findings from the FCE was that Lee was unable to do the lifting or carrying as noted in her job description, but was able to perform at a light to medium work level. Lee received therapy at Cornerstone through August 20, 2004. The discharge note from Cornerstone states that Lee only reported intermittent lower back pain every other day while at rest, had no complaints that day of pain in |2neck or back, and could perform her pre-injury job with minimal to no complaints. All physical therapy goals had been met.

Dr. Boyd’s notes from September 8, 2004, reflect that Lee’s cervical condition had resolved, but she continued to complain of back pain. Dr. Boyd recommended pain management.

Lee continued to work after the accident. However, Dr. Boyd took Lee off of work near the end of September of 2004. She began receiving indemnity payments the next month.

On October 15, 2004, Lee was examined by Dr. William Whyte on a referral from Dr. Boyd. According to Dr. Whyte’s records, Dr. Boyd had requested a non-surgical interventional spine consultation. Lee described pain in the neck that radiated into the left upper extremity, with the pain described as stabbing, burning, and sharp. Dr. Whyte’s diagnosis was left C6 radiculo-pathy, and left C5-6 “herniated nucleo-pulpsis extending into left neuroforamin [and] partially obstructing foramen.” Dr. Whyte wanted to pursue a C5-6 percuta-neous disc decompression (nucleoplasty).

On a referral from Dr. Boyd, Lee began treatment with orthopedic surgeon Dr. Pierce Nunley on November 11, 2004. Dr. Nunley prescribed physical therapy, which Lee began at Tri-State Physical Therapy on November 22, 2004. Physical therapy records from December 15, 2004 reflect that there was a decrease in complaints of neck pain.

EMG and nerve conduction studies were performed by Dr. David Adams on December 2, 2004, at the request of Dr. Nunley. There was no evidence of radiculopathy, neuropathy, or myopathy in either lower Lextremity. None of those conditions or ulnar neuropathy was found in either upper extremity.

After a rehabilitation conference, Dr. Nunely noted on December 29, 2004, that it was reasonable for Lee to be at light-duty work at that time. On January 3, 2005, Dr. Nunley wrote regarding Lee’s work status that she was to be restricted to light-duty desk-type work, with no lifting, pulling, or pushing more than 10 pounds either occasionally or on a repetitive basis. Lee was also not to do repetí-tive tasks and was to be allowed frequent position changes. Dr. Nunley also reviewed the MRIs from May 2004. He thought there was disc herniation at C5-6, and degenerative disc disease at C4-5, C6-7, L3-4, L4-5, and L5-S1. Regarding the lower back, Dr. Nunley thought that conservative management should be continued. Regarding the neck, Dr. Nunley recommended bilateral C6 nerve root blocks and, depending on their effectiveness, an Anterior Cervical Discectomy and Fusion (“ACDF”).

On January 12, 2005, Lee’s case manager wrote to Dr. Nunley about Lee’s modified job description. Her duties were to include, but not be limited to, answering phones, passing out dinner trays and snacks to residents, feeding residents, filling water pitchers, answering call bells, trimming residents’ nails, brushing residents’ teeth, checking closets for neatness, assisting with chart filing, cleaning wheelchairs, bathing residents, and pushing residents in wheelchairs. No duty required lifting, pulling, or pushing more than 10 pounds. Dr. Nunley approved the job description, Rexcept that he wanted no transferring of residents or duties which required supporting a resident’s weight.

Lee was involved in a motor vehicle accident on January 26, 2005. She stopped receiving indemnity payments the next day. When Lee was treated at Dr. Nunley’s office on February 3, 2005, she reported that the nerve blocks relieved some of the pain, but she was never pain-free. Lee also complained that her pain had increased after the recent motor vehicle accident.

An MRI of Lee’s cervical spine was performed on February 3, 2005. The radiologist’s impression was a very small central disc protrusion at C5-6 having minimal effect on the thecal sac, and mild to moderate degenerative disc changes at C4-5 without significant narrowing of the nerve root canals. Dr. Nunley believed this MRI showed disc bulge and spondylo-sis at C4-5, a herniated disc “eccentric to the left” at C5-6, and mild degenerative disc disease at C6-7.

Lee returned to light-duty work on February 10, 2005. On that date, Lee and Heritage Manor’s Administrator Joel Marsh signed off on her job restrictions. Her duties were largely identical to those listed in the January 12, 2005, modified job description, except that none of her duties were to include lifting anything weighing more than 10 pounds; lifting, transferring or pushing residents; or bathing, changing, or doing anything that required her to support any part of a resident’s weight.

Lee stopped receiving physical therapy at Tri-State on February 14, 2005. The notes from her last physical therapy session state that Lee was |Btolerating work duties, and that all complaints of pain had increased since her motor vehicle accident.

Lee reported to Dr. Nunley’s nurse on February 28, 2005, that the bilateral C6 selective nerve root block took away the majority of her symptoms, but that she still had occasional pain radiating to the right shoulder and primarily down the left shoulder. However, on March 24, 2005, Lee reported to Dr. Nunley’s nurse that three C6 selective nerve root blocks had not helped alleviate any of her symptoms and that she wanted surgery. She was having pain equally on both sides. The nurse stated that he was submitting for approval of an ACDF C4-5 and C5-6.

Lee was fired on April 13, 2005. The reasons given for her termination were excessive absenteeism and insubordination. According to her employment records, Lee was absent from work approximately 13 times in 2005, usually to care for her sick child. In the months of February and March of that year, Lee had worked approximately 16 days. Her employment records also reflect that Heritage Manor had instituted corrective actions plans for Lee several times when she returned to work in 2005. The reasons given for the corrective actions included not calling in daily to check with her supervisor, exhibiting lack of respect, insubordination, refusing to follow instructions, raising her voice, slamming a door shut, not doing her job, poorly performing her job, and having a poor attendance record.

On May 2, 2005, Lee was taken off of work by Dr. Nunley’s office because of neck and lower back pain. On May 18, 2005, Lee amended her | (¡earlier filed claim for compensation to seek SEBs from February 10, 2005, to April 15, 2005, post-termination SEBs with a zero earnings base from April 16, 2005, through May 1, 2005, and temporary total disability benefits beginning on May 2, 2005. Surgery, penalties, and attorney fees were sought in later amendments.

Lee’s complaints of pain continued. On June 2, 2005, she told Dr. Nunley’s nurse that she still had low back pain, but her neck was worse. On June 30, 2005, Lee reported to Dr. Nunley’s nurse that she had worsening symptoms in the base of her neck, radiating down her shoulders and into her hands. Lee also said that her back symptoms had worsened.

Dr. Gordon Mead, an orthopedic surgeon, evaluated Lee on June 20, 2005, for a second medical opinion. Dr. Mead disagreed with Dr. Nunley’s recommendation of surgery. Dr. Mead considered Lee to be at maximum medical improvement, and he recommended that she undergo a functional capacity evaluation and be returned to the workforce.

An independent medical examination was sought by Heritage Manor. This examination was conducted by orthopedic surgeon Dr. Karl Bilderback on January 16, 2006. He concluded that in the absence of evidence of cervical or lumbar radiculopathy or cervical or lumbar segmental instability, he would not recommend any type of spine operation on Lee. Dr.' Bilderback believed that Lee had reached maximum medical improvement regarding her April 2004 injuries, and that she could return to work in a medium work capacity and would likely advance to unrestricted work. He did not see any evidence of permanent impairment.

|7The WCJ rendered judgment finding that: (1) Lee was entitled to $188.97 in past-due benefits because Heritage Manor had underpaid benefits of $432.85 from October 15, 2004, through January 27, 2005, but had overpaid benefits of $243.88 from October 1, 2004, to October 15, 2004; (2) Lee is entitled to a penalty of $2,000.00 and attorney fees of $2,000.00 because of Heritage Manor’s failure to properly calculate the average weekly wage; (3) Lee is not entitled to the ACDF surgery recommended by Dr. Nunley; (4) although Lee was asked to perform job duties beyond her restriction, she is not entitled to post-termination SEBs because she did not make a prima facie case that she could not earn 90% of her pre-injury wages; (5) Lee waived her claim to pre-termination SEBs; (6) Lee was not entitled to temporary total disability benefits because the off-work slip dated May 2, 2005, did not rise to the level of clear and convincing evidence in light of other medical evidence that Lee’ was capable of employment; and (7) Lee was not entitled to penalties or attorney fees for Heritage Manor’s failure to approve the surgery or to obtain a second medical opinion within 60 days because Lee missed a scheduled second medical opinion examination.

Lee has appealed, arguing that the trial court erred in denying her claim for post-termination SEBs, failing to award penalties and attorney fees on the SEBs issue, ordering an independent medical exam, denying her claim for cervical disc surgery, failing to award penalties and attorney fees for a late second medical opinion examination, and in awarding only |s$2,000.00 in attorney fees as a result of Heritage Manor’s miscalculation of benefits.

DISCUSSION

Supplemental Earnings Benefits

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. When there is a conflict in the. testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

SEBs are awarded when a work-related injury prevents the employee from earning 90% or more of his pre-injury wages. La. R.S. 23:1221(3)(a). The employee has the initial burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra. “Th[is] analysis is necessarily a facts and circumstances one in which the court is |amindful of the jurisprudential tenet that workers’ compensation law is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). See Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, and Kahlden v. Horseshoe Entertainment, 30,277 (La.App.2d Cir.2/25/98), 709 So.2d 873.

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Daigle, supra. Actual job placement is not required. Banks, supra.

The trial court specifically found that Lee was unable to perform her pre-injury job and that after she returned to work in February of 2005, Lee was asked to perform job duties that were beyond her job restrictions. That was enough for Lee to establish her prima facie case of entitlement to post-termination SEBs, and to shift the burden to Heritage Manor. It is of no moment that Lee was fired from her adjusted position because that position required tasks that exceeded her job restrictions.

Once Lee established her prima facie case of entitlement to SEBs, the burden of proof then shifted to Heritage Manor. The supreme court has set forth a minimum standard that an employer must meet in order to defeat a claim for SEBs by establishing job availability:

|n[A]n employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

Banks, 96-2840 at pp. 10-11, 696 So.2d at 557.

Heritage Manor failed to meet its burden. Other than the nursing home position offered that ultimately exceeded her job restrictions, Heritage Manor presented no evidence at trial that Lee was physically able to perform a certain job and that the job was offered to her or that the job was available to the Lee in her or Heritage Manor’s community or reasonable geographic region. Accordingly, the trial court was clearly wrong in denying Lee’s claim for post-termination SEBs. See Wilson v. Grosjean Contractors, Inc., 28,831 (La.App.2d Cir.10/30/96), 682 So.2d 1264, writ denied, 97-0012 (La.2/7/97), 688 So.2d 510, where the claimant was entitled to SEBs when the record contained neither evidence that the claimant could perform his previous job duties nor evidence of any offered or available employment consistent with his capabilities and which paid at least 90% of his pre-injury wages. See also Hinton v. Scott Hydraulics, Inc., 614 So.2d 820 (La.App. 2d Cir.1993), writ denied, 618 So.2d 413 (La.1993).

The method of determining the amount of an award of SEBs is provided in La. R.S. 23:1221(3)(a):

For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.

The WCJ determined that Lee’s average weekly wage is $329.60, giving her an average monthly wage of $1,428.27. Heritage Manor presented no evidence as to the amount that Lee is able to earn in another position. Nevertheless, there is no evidence that Lee is unable to earn any wages. Therefore, her SEBs shall not be calculated based upon zero earning capacity. Instead, her SEBs are to be based upon the difference between her pre-injury monthly wage of $1,428.27 and the average monthly minimum wage of $892.66 ($5.15 per hour and assuming an average work week of 40 hours) that Lee would be capable of earning. See Wilson, supra, and Hinton, supra. We conclude that Lee is entitled to monthly SEBs of $357.00 beginning from April 13, 2005, her date of termination.

La. R.S. 23:1201(F) provides for the assessment of a penalty and reasonable attorney fees against the employer or insurer for the failure to timely commence or timely continue paying benefits unless the claim is | ^reasonably controverted or if the nonpayment results from conditions over which the employer or insurer had no control. The meaning of “reasonably controverted” in the context of this statute was addressed in Brown v. Texas-LA Cartage Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890:

In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right 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 nonfrivolous 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.

Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Williams, supra.

As noted above, other than medical records and providing a modified position to Lee, Heritage Manor failed to come forth with evidence to rebut Lee’s claim to SEBs. At the time that Lee became entitled to SEBs, she had yet to be examined by Dr. Mead or Dr. Bilderback, and Heritage Manor was only aware that Lee could work with restrictions. Thus, the claim was not reasonably controverted. We note that Dr. Mead’s recommendation was 11sthat a FCE be performed and Lee be returned to the workforce. Heritage Man- or did not take these steps. Accordingly, we conclude that as a result of Heritage Manor’s failure to pay SEBs, an additional penalty of $2,000.00 and additional attorney fees of $2,000.00 is appropriate.

Independent Medical Examination

La. R.S. 23:1123 states, in part, “If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director.” Lee argues that the WCJ erred in ordering an Independent Medical Exam (“IME”) when the dispute was not about Lee’s condition, but whether she needed surgery. Lee additionally contends that because the IME was improper, its conclusions should not have been considered by the WCJ.

Dr. Nunley noted on January 3, 2005, that Lee had a herniated disc with radicu-lopathy in her neck. As a course of treatment, he recommended C6 selective nerve root blocks, followed by an ACDF if the nerve root blocks were ineffective. According to the March 24, 2005, report from Dr. Nunley’s office, three nerve root blocks had not helped alleviate her symptoms. After that date, the ACDF was pursued.

Dr. Gordon Mead, an orthopedic surgeon, examined Lee on June 20, 2005. His conclusion in his report was that Lee lacked objective findings of nerve root impingement, and was at maximum medical improvement. Therefore, Dr. Mead felt that surgery was not indicated. Clearly, there was a dispute between the parties about both Lee’s condition and whether she 114needed additional treatment. The dispute was not solely based upon the surgery, although that was an aspect of the dispute. The trial court did not err in ordering the IME.

Request for Surgery

Lee argues that the WCJ was clearly wrong in denying her request for the ACDF surgery.

Filed into evidence were the report and deposition of Dr. Mead. When Dr. Mead evaluated Lee on June 20, 2005, he was not aware that Lee had been involved in a recent automobile accident, as she did not tell him about it. Dr. Mead agreed with the conclusions of the radiologist that the May 2004 MRI showed degenerative disease at C5-6 with a bulge at the C5 and C6 levels without any nerve root impingement. The lumbar spine looked normal. He also agreed with the radiologist’s interpretation of the February 2005 MRI as showing small central disc protrusion at C5-6 with mild degenerative changes at C4-5. No nerve root impingement was noted. Dr. Mead thought for all intents and purposes that the two cervical spine MRIs were identical.

Dr. Mead’s impression was that Lee had a pre-existing degenerative cervical disc disease, but did not have a lumbar disc disease. He believed that she most likely strained her neck, and possibly her back, at the time of injury, and that this temporary aggravation of the pre-existing degenerative disease should have taken three to six months to resolve. Because there was no objective finding of nerve root impingement, Dr. Mead did not feel that surgery was necessary to treat Lee’s pain, and he did not agree with Dr. | ^Nunley’s recommendation of an ACDF. Dr. Mead stated that cervical disc surgery can be successful in relieving symptoms from nerve root impingement, but not in relieving vague pain complaints. Dr. Mead considered Lee to be at maximum medical improvement, and he recommended that she receive a functional capacity evaluation and be returned to the workforce. Dr. Mead did not feel that additional medical treatment was necessary.

Dr. Mead does not perform cervical spine surgeries. He has a general orthopedic surgery practice. The lumbar surgeries he performed in the past were usually lumbar discectomy and lumbar laminectomy.

The IME was conducted by Dr. Karl Bilderback on January 16, 2006. Reviewing the cervical spine MRI from May of 2004, Dr. Bilderback found mild spondylo-sis at C4-5 with a tiny disc bulge, a slightly larger bulge and very mild exit foramen stenosis at C5-6, and a smaller bulge at C6-7 with no exit foramen stenosis. There was little change on the MRI taken in February of 2005. Dr. Bilderback decided that in the absence of evidence of cervical or lumbar radiculopathy or cervical or lumbar segmental instability, he could not recommend surgery for Lee. Dr. Bilderback also believed that Lee had reached maximum medical improvement for the injuries she received in April of 2004.

The opinion of the IME physician is not conclusive, and the WCJ must evaluate all of the evidence presented in making a decision as to the claimant’s condition. McKinney v. Coleman, 36,958 (La.App.2d Cir.3/14/03), 839 So.2d 1240. The record supports the finding that the ACDF |Uiis not a reasonable and necessary medical treatment. The WCJ was not clearly wrong in denying Lee’s claim for a ACDF.

Because Lee is not entitled to the ACDF, she is not entitled to an award of penalty and attorney fees relating to the timeliness of the second medical opinion. That medical opinion was the basis for the adjuster’s denial of the surgery request.

We note the request for surgery was received by the adjuster on April 11, 2005. The second medical opinion examination was scheduled for May 23, 2005, within 60 days of the receipt of the request for surgery, but Lee failed to show for the appointment.

Original Award of Attorney Fees

Lee urges that the original award of $2,000.00 in attorney fees is too low. The WCJ awarded attorney fees and a penalty because of Heritage Manor’s improper calculation of indemnity benefits.

A WCJ has great discretion in awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La.App.2d Cir.6/24/98), 715 So.2d 112. We find no abuse of the WCJ’s discretion in awarding attorney fees in the amount of $2,000.00 for that particular claim.

CONCLUSION

We amend the judgment to award SEBs in the amount of $357.00 per month commencing on April 13, 2005. We also amend the judgment to assess an additional penalty of $2,000.00, and to award additional attorney fees of $2,000.00. Therefore, Lee is awarded total penalties of $4,000.00 |17and total attorney fees of $4,000.00. In all other respects, the judgment is affirmed.

At Heritage Manor’s costs, the judgment is AFFIRMED IN PART and REVERSED IN PART.

      . La. R.S. 23:1201(E) requires that medical benefits be paid within 60 days after the employer or insurer receives written notice thereof.


author: SEXTON, J.

text:
    Carla WEST, Plaintiff-Appellee v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, Defendant-Appellant.
    No. 42,028-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 2007.

      Tracy L. Oakley, for Appellant.
    Joey W. Hendrix, Shreveport, for Appel-lee.
    Before BROWN, DREW & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

1 ^Defendant, Safeway Insurance Company, appeals the trial court’s judgment awarding Plaintiff, Carla West, damages, penalties and attorney fees regarding her claim for coverage on the theft of her insured vehicle. For the following reasons, we reverse the judgment of the trial court and render judgment in favor of Defendant.

FACTS

On July 29, 2003, Plaintiff completed an application for an automobile insurance policy to obtain coverage for her 1996 Chrysler Sebring. The application was made at the office of ABC Agency Network, Inc., an agent selling coverage for Safeway Insurance Company of Louisiana. The only operator of the vehicle listed on the application is Plaintiff. A statement directly above the operator section of the application states that the applicant warrants that no other persons of legal driving age reside in the household other than those listed in the application. Further down in the application, the applicant is asked to sign directly below a paragraph entitled APPLICANT’S STATEMENT-READ BEFORE SIGNING, which includes the following language:

The Applicant hereto, states that he/she read this application and attests that all answers given by him/her to the questions asked herein are truthful to the best of his/her knowledge and belief and that said answers were made as inducement to the insurance company to issue a policy ... Applicant further warrants that no individuals, other than those listed above, regularly operate the vehicle(s) described in this application. It is a special condition of this policy that the policy shall be NULL and VOID and of no benefit or effect whatsoever as to any claim arising thereunder in the event there are material misrepresentations made with an intent to deceive in this application ...

(Emphasis added.)

LOn or about January 8, 2004, Plaintiffs vehicle was stolen and vandalized. The vehicle was recovered, but it is undisputed that the amount of damage done to the vehicle made it a total loss. The loss was reported to Defendant by the completion of an Affidavit of Vehicle Theft, which was completed and signed by Plaintiffs sister, Pamela Vasher. Ms. Vasher signed Plaintiffs name on the form. Defendant had the claim investigated by Donald David, an investigator in its special investigation unit, after which Defendant denied the claim on the basis that Plaintiff made material misrepresentations in her application for coverage. Plaintiff filed suit for damages, penalties and attorney fees.

The matter came for trial on March 21, 2006, during which ample testimony was taken from both Plaintiff and Ms. Vasher. On direct examination, Plaintiff testified that, when she went into ABC Agency to apply for insurance, she provided the information to the agent who filled out the application ánd that she then signed the application. While she claimed at trial that she did not read the paragraph labeled “APPLICANT’S STATEMENT” word for word, she conceded that, during her deposition, she had testified that the statement was read aloud to her by the agent before she affixed her signature. Plaintiff testified that she purchased the vehicle from Long’s Auto Sales for $8,500, $3,500 of which was financed. She testified that she had new rims and a car alarm added to the vehicle before it was stolen. Once it was stolen, Plaintiff testified that she made a police report and that her sister called the insurance company to make a claim. She |sattempted to minimize her sister’s use of the vehicle, but failed to give a clear assessment of how often her sister used the car.

On cross-examination, Plaintiff admitted that the address provided on the insurance application was not her residence, but explained that it was the address where she received her mail. She testified that the agent had obtained it from her driver’s license, which was issued when she still lived at that address.

Plaintiff was extensively cross-examined on Ms. Vasher’s use of the vehicle. While she refused to confirm that Ms. Vasher used the vehicle more than she did, she reluctantly confirmed that she had made such a statement to Defendant’s investigator in a sworn statement. Plaintiff also testified that Ms. Vasher assisted her in paying the insurance, maintenance and repairs and in purchasing new rims, tires and a ear alarm. She denied that Ms. Vasher paid for any portion of the car itself and only assisted her by delivering payments to Long’s Auto Sales.

Plaintiff further testified that Ms. Vasher filled out the Affidavit of Vehicle Theft for the insurance claim, but stated that she had done so with Plaintiffs permission. Plaintiff, however, vacillated on this point when questioned about her earlier statement to Defendant’s investigator claiming that she had been unaware that the affidavit had been sent to her or completed by Ms. Vasher.

Ms. Vasher testified that she was the one who found the Chrysler Sebring on the car lot and brought it to her sister’s attention, but that the vehicle was bought and paid for by Plaintiff. On cross-examination, |4however, she was confronted with her earlier sworn statement in which she made the following remark to the investigator regarding the car note, “Well, we still owed Mr. Martin $805, I think.” Ms. Vasher evasively refused to confirm either that she made the statement or that the statement was true. She stated that she drove the vehicle occasionally and admitted that she had helped pay for the insurance, maintenance and repairs and helped pay to add the new rims, tires and car alarm. She also stated that she was the one who took the vehicle to have the new rims, tires and car alarm installed. She admitted that she had no driver’s license because it had been suspended after her 1999 conviction for a felony.

According to Defendant’s claims supervisor, Melissa Fuslier, the claim was denied because Plaintiff gave the wrong address for where the car would be garaged and failed to list her unlicensed sister as a regular operator of the vehicle. Prior to denying the claim, Ms. Fuslier testified that an investigation was conducted by one of its investigators who had taken sworn statements from Plaintiff and Ms. Vasher reflecting that the insured’s sister had possession of the vehicle more than 50 percent of the time. She also stated that, because Ms. Vasher is an unlicensed individual, Defendant would never have written the policy if Ms. Vasher had been disclosed as a regular operator of the vehicle. On cross-examination, Ms. Fuslier admitted that the application does not expressly ask where the vehicle was to be garaged.

Donald David testified that he was first assigned to investigate the claim on January 19, 2004. During the course of his investigation, he | ^discovered that, when the vehicle was recovered, it contained numerous papers bearing the name of Pam Vasher, the car dealer who sold the vehicle identified it as “Pam’s car,” and the claim form on the theft had been completed by Ms. Vasher. Accordingly, he testified that he took the sworn statement of Plaintiff and Ms. Vasher wherein they both admitted that Ms. Vasher used the vehicle approximately 50 percent of the time. These sworn statements of Plaintiff and Ms. Vasher were introduced into evidence without objection. Testimony was also taken as to the value of the car at the time of loss.

At the conclusion of the trial, the court agreed that there were material misrepresentations made, but that the risk for which Plaintiff was currently making a claim, i.e., total loss of the vehicle as a result of theft and vandalism, was unrelated to these misrepresentations. Accordingly, the trial court awarded Plaintiff $4,116 for the loss of her vehicle. Finding that the denial of the claim was arbitrary and capricious, the trial court also awarded Plaintiff $5,000 in penalties and $1,750 in attorney fees. On motion for new trial, the damage award was subsequently amended to $4,160 less the $500 deductible. The instant appeal followed.

DISCUSSION

Defendant argues that the trial court erred in requiring that the material misrepresentations made by Plaintiff be related to the risk of loss due to theft, in finding that Defendant was arbitrary and capricious in its denial of the claim and in awarding attorney fees.

La. R.S. 22:619 provides:

IbA. Except as provided in Subsection B of this section and R.S. 22:692, and R.S. 22:692.1, no oral or written representation or warranty made in the negotiation of an insurance contract, by the insured or in his, behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

In interpreting this statute, this court has held that an insurer must prove that: (1) the insured made a false statement, (2) the false statement was material, and (3) it was made with intent to deceive. Dye v. Walker, 36,482 (La.App.2d Cir.10/23/02), 830 So.2d 429, writ denied, 02-2868 (La. 1/31/03), 836 So.2d 72. The insurer has the burden of proving both misrepresentation and an intent to deceive. Benton v. Shelter Mutual Insurance Com pany, 550 So.2d 832 (La.App. 2d Cir.1989). In articulating the standard of proof for determining whether an insured has the intent to deceive, the supreme court in Johnson v. Occidental Life Insurance Co. of California, 368 So.2d 1032 (La.1979), adopted the following language from the first circuit’s opinion in Watson v. Life Ins. Co. of La., 335 So.2d 518 (La.App. 1st Cir.1976):

Strict proof of fraud is not required to show the applicant’s intent to deceive, because of the inherent difficulties of proving one’s intent. The intent to deceive must be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that [7the insured recognized the materiality of the misrepresentations.

“Material” means that the statement must have been of such a nature that, had it been true, the insurer either would not have contracted or would have contracted only at a higher premium rate. Martin v. Security Indus. Ins. Co., 367 So.2d 420 (La.App. 2d Cir.1979), writ denied, 369 So.2d 1364 (La.1979). Importantly, the jurisprudence requires no causal relation between the misrepresentation and the loss for the insurer to avail itself of this defense. Jamshidi v. Shelter Mut. Ins. Co., 471 So.2d 1141 (La.App. 3d Cir.1985). In the instant case, the trial court found that any material misrepresentations made by Plaintiff were not causally related to the risk Defendant was being called upon to insure, i.e., the theft of the vehicle, and, therefore, could not operate to void the contract. We conclude that the trial court erred in so finding because such a causal relationship between the misrepresentation and the loss is not required. Jamshidi, swpra.

The testimony at trial establishes that, at least, Plaintiff was read the paragraph asking her to attest to the fact that she was the only regular operator of the vehicle, before she signed thereunder. All evidence points to the fact that, at all times pertinent hereto, her unlicensed sister, Ms. Vasher, was also a regular operator of the vehicle. As testified to by Defendant’s claims supervisor, Defendant established that it would not have issued insurance if Plaintiff had disclosed Ms. Vasher as a regular operator.

As to whether the representation, or lack thereof, was made with the intent to deceive, the attendant circumstances create a reasonable assumption that Plaintiff recognized the materiality of the | ^misrepresentations. Plaintiff testified that she was aware an unlicensed driver cannot get insurance on a vehicle. Ms. Vasher’s uninsurability, her more than frequent use of the vehicle and Plaintiffs and Ms. Vasher’s evasive testimony at trial all indicate their knowledge of the consequences regarding Ms. Vasher’s owner-like access to the vehicle.

Accordingly, we hold that Plaintiff made misrepresentations with the intent to deceive and that her misrepresentations materially affected the risk assumed by the insurer. Therefore, the insurance policy was void. Borer’s Estate v. Louisiana Health Service & Indemnity Co., 398 So.2d 1124 (La.1981); Breaux v. Bene, 95-1004 (La.App. 1st Cir.12/15/1995), 664 So.2d 1377; Jamshidi, supra.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is hereby reversed in its entirety. We render judgment in favor of Defendant and dismiss all of Plaintiffs claims. Costs herein are assessed to Plaintiff, Carla West.

REVERSED AND RENDERED.


author: STEWART, J.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Kevin D. WHITE, Defendant-Appellant.
    No. 41,802-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    March 28, 2007.

      David R. Cook, Haughton, for Appellant.
    Robert R. Smith, for Assistant District Attorney Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   STEWART, J.

| ¶ Kevin White appeals the trial court’s judgment increasing his [child support obligation arguing that the juvenile court did not have jurisdiction ov^r the proceedings because the matter was subject to an order from the district court and that the matter was abandoned. Finding no merit in either argument, and for the reasons outlined below, we affirm the judgment of the trial court.

FACTS

In this proceeding for child support, an order of support was rendered in Terrie Lassetter v. Kevin White, Case No. 88,555 in the 26th Judicial District Court. The State obtained a judgment for medical insurance against the Mr. White on May 13, 1996 in the Judicial District Juvenile Court Case No. 10,072. Ms. Lassetter (also referred to in the record as Terrie Shaw), who is the custodial parent, qualified for State services as a non-AFDC Medicaid recipient. The State then sought to transfer the child support proceedings from civil district court to juvenile court and have the State named as payee. A judgment was obtained pursuant to the defendant’s waiver of a court appearance.

The State later requested an increase in child support. Following a series of exceptions, amended rules, amended judgments, and hearings, the trial court entered an interlocutory judgment on October 26, 1998, ordering the defendant to pay $550.00 per month in child support plus medical support for one year. Mr. White filed exceptions of lis pendens and no right of action. However, the hearing officer overruled these exceptions and on October 26, 1999, ruled that the matter was transferred from civil court to Ljuvenile court and the interim order was to continue. Mr. White appealed this ruling to the juvenile court judge. On February 4, 2000, the trial judge affirmed the recommendations óf the hearing officer. The defendant continued to pay the child support pursuant to the court’s order in the sum of $550.00 per month. Other than the payment of support, the record does not reflect any activity between February 4, 2000 and January 25, 2006. However, on January 25, 2006, the State filed a rule for an increase in child support. Mr. White filed an ex parte motion for dismissal on the grounds of abandonment. An ex parte order dismissing the State’s order collecting $550 per month was entered on June 13, 2006. The State filed a motion for contradictory hearing challenging the ex parte order, and the ex parte order was overturned by the district court on July 26, 2006. The instant appeal followed.

DISCUSSION

Abandonment

In his first assignment of error, Mr. White asserts that the trial court erred by denying his motion for dismissal for abandonment. He argues that the state’s rule for child support was abandoned on February 7, 2003. Abandonment is governed by La. C.C.P. art. 561, which provides:

A.(1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order Lin the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(3) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(4) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court.

La. C.C.P. art. 561 sets forth three requirements: (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court on the record of the suit, with the exception of formal discovery; and (3) that the step be taken within three years of the last step taken by either party. James v. Formosa Plastics Corp. of Louisiana, 01-2056 (La.4/3/02), 813 So.2d 335; Bryant v. City of Monroe, 37,811 (La.App.2d Cir.10/29/03), 859 So.2d 907.

In Jones v. Phelps, 95-0607 (La.App. 1st Cir.11/9/95), 665 So.2d 30, writ denied, 95-2907 (La.2/2/96), 666 So.2d 1104, the court stated:

Two exceptions to the rule of abandonment have been recognized by the courts: (1) when the failure to prosecute was caused by circumstances beyond the plaintiffs control and (2) when the defendant waived his right to plead abandonment by Ltaking action in the case inconsistent with an intent to treat the case as abandoned.

The purpose of child support is to secure the maximum amount of support for the child. State ex rel K.L. v. Leeds, 38,245 (La.App.2d Cir.4/7/04), 870 So.2d 450. The obligation to support their children is conjoint upon the parents and each must contribute in proportion to his or her resources. Stogner v. Stogner, 98-3044 (La.07/07/99), 739 So.2d 762; Hogan v. Hogan, 549 So.2d 267 (La.1989); Harper v. Harper, 33,452 (La.App. 2d Cir.06/21/00), 764 So.2d 1186. The overriding factor in determining the amount of support is the best interest of the children. Bagwell v. Bagwell, 35,728 (La.App.2d Cir.3/08/02),812 So.2d 854; State v. Baxter, 33,188 (La.App.2d Cir.05/10/00), 759 So.2d 1079.

Child support is a debt or legal obligation that is subject to prescription. La. C.C. art. 3498 provides:

Actions on instruments, whether negotiable or not, and on promissory notes, whether negotiable or not, are subject to a liberative prescription of five years. This prescription commences to run from the day payment is exigible.

However, prescription is interrupted by acknowledgment of the debt. La. C.C. art. 3464. Payment on the debt constitutes an acknowledgment which interrupts prescription. Ford Motor Co. v. Brown, 32,995 (La.App.2d Cir.04/05/00), 756 So.2d 654; Chaisson v. Chaisson, 29,-243 (La.App.2d Cir.2/26/97), 690 So.2d 899; Marr v. Johnson, 204 So.2d 806 (La.App. 2d Cir.1967). If prescription of a debt is interrupted by the payment of said debt, it must follow that the uninterrupted and unchallenged payment of a child support obligation for over five years must defeat an action for | .^abandonment. Thus, the trial court was correct in its determination that the action was not abandoned because of Mr. White’s payment of the obligation.

The case of Griffin v. Campbell, 2000-00468 (La App.3d Cir. 11/2/00), 772 So.2d 370, relied upon by the defendant is distinguishable on it facts. The plaintiff in Griffin had received an order for an increase in child support that was reversed by the appellate court and failed to have the matter reset for hearing following remand. In that case the defendant paid the increased support obligation although he was no longer under order to do so. The Third Circuit did not discuss whether the defendant’s payment of the amount due constituted a step in prosecution. The court also noted that the child at issue had now reached the age of majority and the plaintiff was no longer able to receive child support on his behalf, so a motion for increase in child support was without merit. In the instant case, there was an order in place to pay the child support obligation of $550 that was unchallenged by the defendant and the child at issue has not reached the age of 19. Thus, we find no merit in this assignment.

Lis Pendens/No Cause of Action

The defendant contends that the district court retained jurisdiction over its original order of child support; therefore, the trial court’s judgment overruling his exception of lis pendens should be reversed. He also contends that the Department of Social Services has no cause of action to create a second judgment of support.

| ^However, the action taken by the trial court is supported by this Court’s decision in State in the Interest of P.M.I. v. Irion, 25,838 (La.App.2d Cir.1/19/94), 631 So.2d 28. In Irion, we stated:

La. R.S. 46:236.1(F) authorizes the state to obtain an order of support against the responsible person in any ease in which the department is providing services under that Section. The statute provides further, in pertinent part, that:
A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding.
Juvenile courts are vested with exclusive original jurisdiction in proceedings brought by the district attorney to establish or enforce support pursuant to the provisions of LSA-R.S. 46:236.1(F). La. Ch.C. Art. 311; State in the Interest of M.S.S. v. Thomas, 606 So.2d 1353 (La.App. 2d Cir.1992). Children’s Code Article 311 provides in Section B:
A support order rendered pursuant to an action brought under this Article shall not modify a prior judgment of a district court or be modified by a district court having appropriate jurisdiction over support. Upon proof thereof, amounts paid for a particular period pursuant to a support order rendered by either court shall be credited against the amounts accruing or accrued for the same period under any support order rendered by the other court.
Additionally, Comment (b) notes that the article clarifies the independent nature of juvenile and civil court support awards, allowing coexistent orders under which payment to one may serve as a set-off for the order.

As a result, the Irion court recognized that the State did have a separate and distinct cause of action in cases where a prior order of child support existed in the district court.

No Right of Action

The defendant argues that the Department has no right of action to institute suit because the custodial parent, Ms. Las-setter, has not proven that 17she is eligible to receive support services under La. R.S. 46:236.1.2 from the Department of Social Services because she has not demonstrated a need qualifying her for the services under the statute.

This action was brought by the Department of Social Services under the provisions of La. R.S. 46:236.1.2 which reads, in pertinent part, as follows:

A. The department is hereby authorized to develop and implement a program of family support in FITAP cases, Title IV-E Foster Care cases, Medicaid only cases, and any other category of cases to which the state is required by federal law or regulation to provide services, designed to do the following:
(1) Enforce, collect, and distribute the support obligation owed by any person to his child or children and to his spouse or former spouse with whom the child is living if a support obligation has been established with respect to such spouse or former spouse.
(4) Obtain and modify family and child support orders.
* * *
D. (1) The department, except when it is not in the best interest of the child, may without the necessity of written assignment, subrogation, tutorship proceedings, or divorce proceedings take direct civil action, including actions to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section, in any court of competent jurisdiction, to obtain an order, judgment, or agreement of support against the responsible person in any case in which the department is providing services under this Subpart. The amount of such support shall be set only by order of the court or by the consent of the parties, but in either case the department shall be designated as payee. Additionally, the department may take direct action to modify an order or judgment of support, including actions to increase or decrease support, in any case in which the department is providing services pursuant to this Sub-part. A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding.

hWe note that the Department is prevented under La. R.S. 46:236.1.2(D)(1) from obtaining a child support order “when it is not in the best interest of the child.” State ex rel H.B. v. Blair, 40,140 (La.App.2d Cir.4/17/05), 909 So.2d 710.

Here, the trial court made a best interest determination in the custody proceeding to name the mother as the custodial parent. The State’s interest for support enforcement was subject to this initial custody determination, which was not contested by the defendant in this action as being against the best interest of the child. The child support obligation of $550 a month was established in 2000, and any action to collect support would be based on that determination of need. There is nothing in the record that suggests that the trial court’s order of support was no longer in the best interests of the child. The matters of record demonstrate that the custodial parent was qualified as a non-AFDC Medicaid recipient and the defendant was ordered to provide medical insurance on May 13,1996.

In this case, the custodial parent qualified in 1996 because she was receiving Medicaid. In 1998 the State sought to be named as payee when the instant proceedings began. Therefore this assignment is without merit.

CONCLUSION

Based on the above, we affirm the ruling of the trial court overturning the ex parte order and denying the defendant’s motion for dismissal for | (¡abandonment and exceptions of lis pendens and no right of action. Costs assessed to the appellant.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Richard P. JONES, Appellant.
    No. 41,880-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 28, 2007.

      Richard P. Jones, Pro Se.
    James E. Beal, Louisiana Appellate Project, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny W. Douciere, John M. Lancaster, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, WILLIAMS, and CARAWAY, JJ.
   BROWN, Chief Judge.

hOn March 10, 2003, Tracey Duprey, Bobby McCall, and Jonathan McCandlish set out on a night of drinking alcohol, smoking marijuana, and committing mischief in rural West Carroll Parish. At one point they stole the street sign for Little Creek Road. Tracey’s ex-sister-in-law, Shawn Morrow, lived with defendant, Richard P. Jones, on Little Creek Road. Tracey had visited in defendant’s home on several occasions. After taking the street sign, the trio decided to pull up defendant’s mailbox. According to Tracey, their first attempt failed, and they tried again. Both McCall and McCandlish got out of the truck to reattach a chain to the mailbox. This occurred after midnight, and defendant, who was awakened by the noise, grabbed his 30/30 rifle, went outdoors, and fired off at least one round. McCall and McCandlish jumped back into their truck and left at a high rate of speed. At this point, defendant fired at the vehicle and hit it at least three times. One round went through the wheel well and passenger side seat. A fragment from this round struck Jonathan McCandlish. Tracey and Bobby took McCandlish to the Delhi Hospital where he died.

Defendant was indicted for second degree murder. A jury, however, found him guilty of manslaughter. The trial court imposed the minimum term of 20 years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant appealed his conviction and sentence. We affirm.

\2Discussion

Defendant’s appellate counsel’s only assignment of error was that defendant’s sentence was excessive; however, defendant filed a pro se brief adding two other assignments of error.

Sufficiency of the Evidence

In his first pro se assignment of error, defendant alleges that the evidence presented was insufficient to support his conviction for manslaughter. In particular, defendant contends that his girlfriend, Shawn Morrow, gave perjured testimony and varying accounts of events which prejudiced and tainted the jury’s verdict.

Shawn Morrow and her daughter, Jessica Gary, were living with defendant at the time of the incident. Jessica’s boyfriend, Leo Cantou, had stayed over at defendant’s house on the night of the shooting. Ms. Morrow testified that she knew the three people who attempted to pull down the mailbox at defendant’s house. Tracey Duprey was her former sister-in-law and had visited with Shawn at defendant’s home. On the night of the shooting, Ms. Morrow went to bed at approximately 9:30 p.m. She was awakened when she heard a truck outside the residence peeling out on Little Creek Road. Ms. Morrow saw defendant get out of bed, put on his pants, then fumble at the wall where he kept his guns. Ms. Morrow observed defendant leave the room with a gun.

Ms. Morrow testified that she heard the truck drive by, then turn around and again stop outside the house. Ms. Morrow stated that she heard the truck idling outside the house and heard defendant holler, “Hey |-¡m- f-, what the hell do you think you’re doing?” She then heard a gunshot, followed by running and the truck leaving at a high rate of speed, throwing gravel. She then heard several gunshots.

Defendant came back in the house yelling for Ms. Morrow to call 911. Defendant said that a tall, skinny, white guy had gotten out of a red truck, put a chain around the mailbox, and started pulling it out of the ground. That’s when he hollered at them and shot at the tailgate. Defendant said that he had only seen one person in the truck. Defendant also stated that he believed he had hit the tailgate of the truck so he could identify it later. Defendant said that he thought it had been Tracey Duprey in the truck.

Ms. Morrow noted that she had purchased the mailbox, and she and defendant had installed it across from the residence. That morning several hours after the shooting, Ms. Morrow saw the mailbox and pole lying in the middle of the street.

On cross-examination, Ms. Morrow acknowledged that within a month of the incident there had been several acts of vandalism at the house, including someone “keying” defendant’s son’s truck, doors to the house being left open, horses being released, someone “cutting donuts” in their yard, as well as an attempt to hot wire defendant’s four wheeler. She also testified that during that period they were getting a lot of phone calls late at night.

Jessica Gary testified that she was living with her mother and defendant at the time of the shooting. Leo Cantou had stayed overnight on |4the couch in the living room. Both Jessica and Leo’s testimony was the same as that of Shawn Morrow, éxcept to add that defendant said that he knew he got one of them and hoped he did.

Defendant gave statements to Louis Russell, chief criminal deputy for West Carroll Parish Sheriffs Office, after being informed that the victim had died. According to Deputy Russell, defendant got sick and vomited upon hearing the news. Defendant’s statements were recorded and played for the jury. In the statements defendant referred to “they,” “the boy that was driving,” and “the one that got out.” During a second statement, defendant admitted that he didn’t shoot into the air as he had said at first, but he aimed at the vehicle.

Tracy Duprey testified as to what occurred and stated that the entire incident was just a practical joke. Bobby McCall had died in an unrelated accident prior to trial. The investigating officers also testified, as well as a forensic pathologist and crime lab expert.

At the close of the prosecution, the defense rested without calling any witnesses.

Defendant claims that Shawn Morrow lied but has pointed to nothing in support of this claim. In fact, most of what Ms. Morrow testified to was in agreement with defendant’s statement to the investigating officers. The evidence shows that defendant fired into a truck which he knew was occupied. Defendant claims that he did not intend to shoot anyone; however, manslaughter does not require an intent to kill or cause great bodily harm if the offender was engaged in certain felonies or any Isintentional misdemeanor directly affecting the person. See La. R.S. 14:31(A)(2)(a). The evidence was sufficient to prove all the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Denial of Motions for Mistrial

In his second pro se assignment of error, defendant alleges that the trial court erred in failing to grant a mistrial after the prosecution made prejudicial remarks concerning defendant’s failure to testify and that the trial court should have granted a mistrial when a state witness, Tracey Du-prey, was hospitalized after giving direct testimony, causing a break or delay before cross-examination.

Failure to grant a mistrial for comment by prosecution

Defendant takes issue with the following statement made by the prosecutor during rebuttal closing arguments:

I agree with (defense counsel), this is a tragedy, a terrible tragedy. But some times we have to pay for tragedies. He said (defendant) was sympathetic to Jonathan’s family. You’ve heard him talk twice on statements that were played before you. Did you hear sympathy towards Jonathan? Did you hear sympathy for Jonathan’s family? Or did you hear a man that knew what he was facing?

A mistrial shall be ordered, upon motion of a defendant, when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to, inter alia, the failure of the defendant to testify in his own defense. La. C. Cr. P. art. 770(3).

lfiWe find no error in the trial court’s denial of defendant’s motion for a mistrial. Defense counsel stated during closing arguments, “My sympathy and Richard’s sympathy goes to the family of Jonathan.” The prosecutor’s remark simply asked whether the jury detected any sympathy in the recordings that they had heard. The remark was not a comment on defendant’s failure to testify.

Failure to grant a mistrial for unavailable witness

La. Constitution article I, § 16 provides in part that an accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.

Following direct examination, Tracey Duprey began having problems with acid reflux disease and was hospitalized. Upon being released from the hospital, Tracey returned and completed her testimony. Claiming that this interruption interfered with his presentation, defense counsel moved for a mistrial. We note that the delay allowed defense counsel more time to prepare an effective cross-examination. Regardless, there is no showing of prejudice or denial of the right of cross-examination. The fact that the witness was ill was adequately explained to the jury.

Excessive Sentence

Defendant argues that his sentence is excessive because the trial court failed to adequately consider mitigating factors. The trial court, however, did consider defendant’s age, which was 44 years, and defendant’s prior three felony convictions (simple burglary and two counts of theft). The 17court also mentioned that defendant was remorseful, took into account defendant’s social history, and stated that it had read letters submitted on defendant’s behalf.

La. R.S. 14:31(B) provides in part that whoever commits manslaughter shall be imprisoned at hard labor for not more than 40 years.

La. C. Cr. P. art. 893.3(E) provides in part that:

(l)(a) Notwithstanding any other provision of law to the contrary, if the defendant commits a felony with a firearm as provided for in this article, and the crime is considered a violent felony as defined in this paragraph, the court shall impose a minimum term of imprisonment of ten years. In addition, if the fírearm is discharged during the commission of such a violent felong, the court shall impose a minimum term of imprisonment for twentg gears.
(b) A “violent felony” for the purposes of this paragraph is: second degree sexual battery, aggravated burglary, car jacking, armed robbery, second degree kidnapping, manslaughter, or forcible rape.
(2) A sentence imposed under this paragraph shall be without benefit of parole, probation, or suspension of sentence. (Emphasis added).

Defendant’s 20-year sentence is the minimum term provided by La. C. Cr. P. art. 893.3(E). A sentencing judge must start with the presumption that a mandatory minimum sentence is constitutional and may only depart downward if he finds clear and convincing evidence that, under the facts and circumstances, the minimum sentence is excessive. State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672. The trial court did not so find and the record does not support such a departure.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.