text:
    STATE of Louisiana v. Tracy A. SEGURA.
    No. 07-KA-685.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| ¡Un December 11, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Tracy Segu-ra, with theft of goods valued at $500.00 or more, a violation of LSA-R.S. 14:67.10. On April 10, 2007, the matter proceeded to trial before a six person jury. After considering the evidence presented, the jury returned a verdict of guilty of the lesser included offense of attempted theft of goods valued at $500.00 or more, a violation of LSA-R.S. 14:27 and 14:67.10.

On April 13, 2007, defendant filed a motion for post verdict judgment of acquittal or a new trial. The trial court denied the motion and then sentenced defendant to two years at hard labor. The court suspended the sentence, placed defendant on active probation for two years, and imposed a $300.00 fine. Defendant now appeals.

UFACTS

At trial, Barbara Quates, the customer service manager for the Harvey Wal-Mart store, testified that on November 14, 2006, she saw a customer walk across in front of the registers and proceed to the grocery door to exit. According to Ms. Quates, the customer, whom she identified in court as defendant, was pushing a shopping cart that contained a 32-inch television set. Ms. Quates saw defendant stop and show the door greeter a piece of paper that appeared to be a store receipt. Ms. Quates then approached defendant and looked at the receipt. She saw that it was not for the television he had in the shopping cart, but for a 42-inch plasma television purchased the previous day at the Marrero Wal-Mart store. Defendant told her he had left the 42-inch television at the customer service counter, and that he was exchanging it for the 32-inch set.

At that time, Deputy Kevin Ridge, who was working a security detail at the store, stayed with defendant while Ms. Quates went to the customer service counter. When Ms. Quates learned that no one had attempted to exchange a 42-inch plasma television there, the parties involved relocated to the store’s loss prevention office. According to Deputy Ridge, defendant then changed his story and claimed his wife was at the store with the 42-inch set and also produced credentials that identified him as a deputy with the Orleans Parish Criminal Sheriffs Office. After the surveillance videotape confirmed that defendant did not enter the store with a television, Officer Ridge allowed defendant the opportunity to contact his wife and produce the larger television. Defendant was still unable to produce the television and now claimed that his wife was at the Wal-Mart store in Marrero.

At trial, the surveillance videotape was introduced into evidence as well as the receipt that defendant had in his possession. Ms. Quates testified the receipt 14defendant had, dated November 13, 2006, was for a purchase in the amount of $1,397.00, and the television defendant had in the cart was priced at $847.00. Kortney Rodgers, a protection coordinator with Wal-Mart and custodian of the surveillance tapes, testified that the tape showed defendant entering Wal-Mart at 3:57 p.m. Defendant walked to the electronics department in the back of the store. He then attempted to leave the store with the television at 4:03 p.m. through the side opposite the entrance he used. The surveillance tape was played for the jury.

After the prosecution rested its case, defendant testified on his own behalf. He said he and his wife bought a 42-inch plasma television set for their home at the Wal-Mart store in Marrero on November 13, 2006. This television was too large to fit in their entertainment center, so they decided to exchange it for a smaller one. According to defendant, on November 14, 2006, he and his wife agreed to meet at Wal-Mart to exchange the television. They went in separate cars, and Mrs. Seg-ura took the 42-inch television in her car because it would not fit in defendant’s car. When defendant arrived at the Manhattan store, he went to the electronics department and found a 32-inch television. The store employee in that department told him he could take the set to the front of the store himself. As he walked to the front of the store with the television, his wife called him on his cellular telephone to tell him she was in front of the store with the larger set. Defendant testified that he approached the greeter at the exit and showed her the cashier’s receipt for the larger television. He asked the greeter if she would hold the 32-inch television while he went outside to meet his wife. At that point, the store manager and employees from the loss prevention department approached and accused him of attempting to steal the television.

Defendant testified he was taken to the store’s loss prevention office. The store manager and Mr. Rodgers told defendant that if he would admit to stealing |Bthe television they would let him go, with the understanding that he would no longer be allowed in the store. Defendant told them he would not admit to something he did not do. They then told defendant he was going to jail.

Defendant said his wife called him on his cellular telephone, and he had a female employee from the loss prevention department explain the situation to her. It was then that defendant learned his wife had gone to the Marrero Wal-Mart, and not the one on Manhattan. Mrs. Segura offered to bring the 42-inch television to the Manhattan store. The store manager said he did not want to talk to Mrs. Segura, and that defendant was going to jail.

Mrs. Segura also testified at trial, and her testimony basically corroborated her husband’s version of events.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant contends the trial court erred in denying his motion for post verdict judgment of acquittal or new trial. In that motion defendant argued that the State failed to prove he had the intent to fraudulently deprive Wal-Mart of merchandise. Defendant now argues, as he did in his motion, that the State did not produce sufficient evidence to support his conviction for attempted theft of goods.

In reviewing the sufficiency of evidence, an appellate court must determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tilley, 99-0569 (La.7/6/00), 767 So.2d 6, 24, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001).

| (¡Under LSA-R.S. 15:438, “[t]he rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This requirement does not establish a standard separate from the Jackson standard, but provides a helpful methodology for determining the existence of reasonable doubt. State v. Arceneaux, 05-338 (La.App. 5 Cir. 12/27/05), 930 So.2d 44, 48. In assessing other possible hypotheses in circumstantial evidence cases, the appellate court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Instead, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

Defendant was convicted of attempted theft of goods. Theft of goods is defined in LSA-R.S. 14:67.10 A as “the misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations.” That subpart further provides that “[a]n intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking is essential[.]”

Attempted theft requires specific intent to commit the crime of theft and an act tending toward accomplishment of the theft. A person who has specific intent to commit a theft and who does or omits an act for purposes of accomplishing the same is guilty of attempted theft regardless of whether, under the circumstances, he |7would have accomplished his purpose. LSA-R.S. 14:27; State v. Pittman, 368 So.2d 708, 710 (La.1979).

Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Whether a criminal defendant possessed the requisite intent is for the trier of fact, and a review of the correctness of that determination is guided by the Jackson standard. State v. Tran, 97-640 (La.App. 5 Cir. 3/11/98), 709 So.2d 311, 317.

In the present case, we find that the State sufficiently proved defendant had specific intent to commit a theft and performed an act tending toward accomplishment of the theft. At trial, Wal-Mart employee Kortney Rodgers testified that the store’s surveillance video showed that defendant entered Wal-Mart at 3:57 and approached the exit at 4:03 p.m. When defendant reached the grocery store exit, he presented the greeter with a receipt from a larger television purchased the day before from a different Wal-Mart. Ms. Quates, the customer service manager, then approached defendant and looked at the receipt. Defendant told her he had left the 42-inch television at the customer service counter, and that he was exchanging it for the 32-inch set. Ms. Quates said defendant was still inside the store, but he looked like he was exiting, and the shopping cart he was pushing was pointed toward the door. Ms. Quates further testified that when she checked with employees in customer service, she was told that no one had come to them to exchange a 42-inch plasma television. Defendant was then relocated to the loss prevention office where he started to change his story. He claimed that his wife was at the store with the television, and then later claimed his wife was at the Marrero Wal-Mart. Deputy Ridge gave defendant the opportunity to produce the television, but he was unable to do so.

|sAfter listening to this evidence presented by the state, the jury heard the testimony of defendant and his wife. Defendant denied attempting to steal the television and maintained that the whole incident was a big misunderstanding. Both defendant and his wife testified that she was waiting outside the store with the 42-inch television. However, neither of them could explain why defendant went to the Harvey store while his wife went to the Marrero location. Both defendant and his wife also testified that store management and police would not allow Mrs. Segura to come to the store to return the larger television after defendant was apprehended.

In the present case, the jury’s verdict came down to a credibility determination. In finding defendant guilty, the jury obviously rejected defendant’s version of events. On appeal, it is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. State v. Gordon, 06-8 (La.App. 5 Cir. 3/30/06), 928 So.2d 689, 694, writ denied, 06-2319 (La.4/20/07), 954 So.2d 159. Considering the evidence in the light most favorable to the prosecution, we find that there was sufficient proof for a rational trier of fact to conclude beyond a reasonable doubt that defendant committed an attempted theft of goods from Wal-Mart.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant contends that his sentence is illegal and excessive based upon the penalty range set forth in LSA-R.S. 14:27(D)(2).

Under LSA-R.S. 14:67.10 B(l), the crime of theft of goods valued at $500.00 or more is punishable by up to ten years imprisonment, with or without hard labor, a fine of not more than $3,000.00, or both. In arriving at defendant’s sentence, the trial judge apparently read this subpart in conjunction with the sentencing provision in LSA-R.S. 14:27 D(3), which states:

| ;,D. Whoever attempts to commit any crime shall be punished as follows:

(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

Under those two subparts, defendant’s two-year suspended sentence and $300.00 fine were legal, since defendant was subject to no more than five years imprisonment or a fine of up to $1,500.00, or both.

However, defendant asserts that the trial judge applied the wrong sentencing provision. Defendant asserts that LSA-R.S. 14:27 D(2) was applicable in his case. That subpart provides in pertinent part: “If the offense so attempted is theft, and is punishable as a felony, he shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both[.]” Defendant argues that because his offense was a felony theft, this subpart dictates that the maximum sentence to which he was exposed was one year. The State responds that subpart D(2) refers only to general theft (LSA~R.S.14:67), and that it does not apply to theft of goods under LSA-R.S. 14:67.10. We agree with the State’s argument.

A review of the jurisprudence revealed no published Louisiana cases directly addressing the question of which sentencing provision in the attempt statute should be applied where the defendant has been convicted of attempted theft of goods under LSA-R.S. 14:67.10. However, in the past, this court has cited subpart D(3) as the applicable sentencing provision of the attempt statute in cases where the defendants were convicted of attempted theft of goods. See State v. Behre, 03-896, (La.App. 5 Cir. 12/9/03), 864 So.2d 668, 670, n. 1; State v. Duncan, 601 So.2d 374, 376 (La.App. 5 Cir.1992), writ denied, 604 So.2d 1317 (La.1992).

| inBased on the foregoing discussion, we find that defendant’s sentence was legal and within the proper sentencing range.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that the trial court failed to advise defendant of the two year prescriptive period for applying for post-conviction relief under LSA-C.Cr.P. art. 930.8. Therefore, we remand the matter and instruct the trial court to inform defendant of the prescriptive period, set forth by LSA-C.Cr.P. art. 930.8, by sending written notice to defendant within ten days of the rendition of this opinion and to file written proof in the record that defendant received such notice. State v. Fazande, 05-901 (La.App. 5 Cir. 3/28/06), 927 So.2d 507, 513-514.

We further note the commitment shows defendant was found guilty of theft of goods valued at $300.00 or more, when he was actually found guilty of attempted theft of goods valued at $500 or more. On remand, we direct the trial court to correct this error.

For the reasons set forth herein, we affirm defendant’s conviction and sentence and remand the matter with instructions.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The question of sufficiency of evidence is properly raised in the trial court by a motion for post verdict judgment of acquittal under LSA-C.Cr.P. art. 821. State v. McGinnis, 04-1286 (La.App. 5 Cir. 10/6/05), 917 So.2d 471, 479, writ denied, 05-2469 (La.4/28/06), 927 So.2d 283.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Latanya THOMPSON on Behalf of her minor Daughter, Amariana HERNANDEZ, Individually and for the Estate of her Deceased Father, Juan Hernandez v. Jerry BELLOW, James Powe, Continental Insurance Company, and Imperial Fire and Casualty Insurance Company.
    No. 07-CA-591.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.

      George B. Recile, Attorney at Law, Me-tairie, LA, for PlaintifPAppellant.
    P.M. Donovan, Christopher P. Lawler, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

|?Following a jury trial in this automobile accident/wrongful death action, judgment was rendered in favor of defendant, Encompass Insurance Company of America (“Encompass”). Plaintiff now appeals on the basis of a single assignment of error relating to the testimony of the state trooper who investigated the automobile accident in this case. For the reasons assigned herein, we affirm the judgment of the trial court.

Facts and Procedural History

On March 27, 2004, Juan Hernandez was traveling on U.S. 61 South in St. Charles Parish when he veered to avoid a collision with a vehicle being driven by Jerry Bellow. This evasive action caused Mr. Hernandez to cross the highway median and slide into the path of oncoming traffic where 13his vehicle struck a vehicle operated by defendant, James Powe. Mr. Hernandez died as a result of the injuries he sustained in this accident.

The present lawsuit was subsequently filed by Mr. Hernandez’ girlfriend, Latan-ya Thompson, individually and on behalf of the minor child, Amariana Hernandez. Named as defendants were Jerry Bellow and his insurer, Continental Insurance Company, and James Powe and his insurer, Encompass. On the morning of trial, plaintiff settled with Bellow and Continental. Plaintiff also agreed to dismiss James Powe in his personal capacity and proceed against the insurance company up to the limits of the liability coverage provided.

The evidence presented at trial indicates that on the date of the accident, James Powe and his wife, Margaret Powe, residents of Norco, Louisiana, were planning to drive to Baton Rouge, Louisiana. After stopping for gas, Mr. Powe crossed the southbound lanes of U.S. 61 and was attempting to merge into oncoming traffic in the northbound lanes of U.S. 61. Mr. Powe testified that he was driving slowly in the left-turn lane of the highway while looking in his side mirror to attempt a safe entry into the travel lane. Mr. Powe testified that he traveled in the turning lane for approximately 350 feet while he attempt to merge into traffic. At this point, the vehicle driven by Mr. Hernandez spun out of control from the southbound traffic lanes and collided with the Powe vehicle. Neither Mr. Powe nor Mrs. Powe saw the Hernandez vehicle prior to the impact, but recalled only “a red flash and a thud.” Mr. and Mrs. Powe sustained serious | ¿injuries in this accident and both endured lengthy hospitalization. Mr. Hernandez died as a result of the injuries he sustained in the accident.

The trial transcript also contains the testimony of Olga Fourroux, a police officer with the St. Charles Parish Sheriffs Office, who was driving her personal vehicle on U.S. 61 at the time of the accident herein. Officer Fourroux stated that after she drove off of the spillway bridge, she noticed a green truck come from the spillway road and turn east on U.S. 61. She stated that as the truck pulled out, the truck’s tires squealed and the truck passed her vehicle. Officer Fourroux further stated that she also saw a maroon vehicle lose control after the green truck passed her vehicle. She assumed that the actions of the green truck had caused the maroon vehicle to lose control, and she followed the green truck and obtained its license plate number. Officer Fourroux stated that she did not actually see the accident occur, but she heard the crash. The record further shows that the green truck was driven by Jerry Bellow and the maroon vehicle was driven by Juan Hernandez.

On the second day of trial, counsel for plaintiff made a motion in limine outside the presence of the jury to exclude any testimony from Trooper Vittitoe regarding his opinion as to how the accident occurred or whether or not Mr. Powe had an opportunity to avoid the accident or did anything improper. Following argument of counsel, the trial court ruled that unless Trooper Vittitoe was qualified as an expert in accident reconstruction, questions and testimony regarding his conclusions as to the ultimate question of causation and liability in this accident would be excluded.

Master Trooper Robert Vittitoe of the Louisiana State Police was then called as a witness by the plaintiff. Trooper Vittitoe stated he had been |Bemployed by the State Police for 27 years, and that on March 27, 2004, he was called at approximately 5:43 p.m. to investigate a fatal automobile accident in St. Charles Parish near the spillway bridge. He stated that when he arrived on the scene, he found two heavily damaged vehicles in the left northbound lane of the highway and he determined that the point of impact occurred there. He stated that the driver and the passenger of the first vehicle, a Chevy Tahoe, had been transported to River Parish Hospital and the driver of the second vehicle, a maroon Crown Victoria, was pronounced dead on the scene by the coroner. Trooper Vittitoe also stated that he obtained the license plate number of a vehicle that had left the scene from Officer Fourroux. Trooper Vittitoe identified two documents which he prepared depicting the movement of the vehicles prior to the crash and their location after the crash. He stated he relied on physical evidence to prepare these diagrams, specifically the yaw marks and the statement of Officer Fourroux.

Trooper Vittitoe testified that it was improper for a motorist to travel in the turn lane to attempt to merge into the travel lane. Trooper Vittitoe stated that he was not an accident reconstruction expert, although he had been previously qualified in Jefferson Parish as an accident investigation expert. He stated that when he made calculations regarding the speed of Mr. Powe’s vehicle, he conferred with an accident reconstruction expert in the State Police office.

On cross-examination by defense counsel, Trooper Vittitoe testified that he conducted a complete investigation into the cause of this accident and interviewed numerous witnesses. During the course of the investigation, he determined that Jerry Bellow was driving under the influence of alcohol | fiat the time of the accident. The investigation further indicated that Mr. Bellow’s truck pulled out likely causing Mr. Hernandez to swerve and lose control of his vehicle. The cross-examination continued as follows:

BY DEFENSE COUNSEL:
Did you do a thorough investigation in your opinion from way [sic] you normally do investigations?
BY THE WITNESS:
Yes.
BY DEFENSE COUNSEL:
You did not feel as if Mr. Powe at [sic] done anything improper based upon your investigation?
BY PLAINTIFF’S COUNSEL:
Your Honor, I would object to any opinion testimony as to the ultimate or one of the ultimate issues to be resolved in this trial. The law is clear that Trooper Vittitoe is not an accident reconstruction expert and as such he’s precluded from giving testimony as it relates to those issues.
BY THE COURT:
I’m going to overrule the objection and allow him to answer this one question. Okay.
BY DEFENSE COUNSEL:
Would you like me to ask it again?
BY THE WITNESS:
Yes.
BY DEFENSE COUNSEL:
You did not feel as if Mr. Powe had done anything improper based upon your investigation?
BY THE WITNESS:
No.

On redirect examination, plaintiffs counsel asked the following question to Trooper Vittitoe:

Trooper Vittitoe, if we were to tell you that prior to today Mr. Powe testified in this court that he was traveling down the turn lane at a speed of approximately four to five miles per hour for a distance of some three hundred and fifty feet before the impact occurred, would he, do you consider that to have been improper?
Trooper Vittitoe responded, “Yes.”

Plaintiff then presented the testimony of Herman Hill, who was qualified by the court as an expert in the field of traffic engineering and |7accident reconstruction. Mr. Hill testified that he reviewed the accident report, the available deposition testimony, photographs of the accident scene and that he visited the accident scene immediately prior to trial. His review of this information indicated that Mr. Hernandez lost control of his vehicle due to the sudden emergency of attempting to avoid Mr. Bellow’s truck which suddenly came into his path. He found that Mr. Hernandez could not have avoided traveling into the opposite lane of travel after he lost control of the vehicle. However, Mr. Hill testified that based on his calculations and the physical evidence, Mr. Powe would have been able to avoid the accident if he had seen the Hernandez vehicle lose control. He also testified that it is improper to travel in the turn lane while attempting to merge into a travel lane. He further stated that if Mr. Powe would not have improperly traveled in the turn lane, he would have avoided the accident. Mr. Hill stated that his opinion of the cause of this accident was the inattention on behalf of Mr. Powe as he traveled westbound toward the spillway road.

Following trial, the jury returned a verdict by interrogatories finding that defendant, James Powe, was not at fault in the accident of March 27, 2004. By judgment rendered in October 11, 2006, the trial court determined that the jury found in favor of defendants and therefore dismissed plaintiffs suit with prejudice.

Plaintiff now appeals from this judgment on the basis of one assignment of error: the trial court erred in allowing Trooper Vittitoe to give his opinion as to whether Mr. Powe did anything improper, since Trooper Vittitoe was not an accident reconstruction expert. Defendant responds that the officer is permitted to give opinion testimony even if he is not qualified | Sas an expert, and that plaintiff waived any objection to this testimony by asking the same question of the witness.

Law and Discussion

Louisiana Code of Evidence article 701 allows a lay witness to provide opinion testimony if (1) “[r]ationally based on the perception of the witness; and (2)[h]elpful to a clear understanding of his testimony or the determination of a fact in issue.” The testimony of an investigating officer not qualified as an accident reconstruction expert is limited to opinions based upon his rational perception of the facts and recollections pertaining to the scene of the accident. Jaffarzad v. Jones Truck Lines, Inc., 561 So.2d 144 (La.App. 3rd Cir.), writ denied, 565 So.2d 450 (La.1990) It is prejudicial error to allow a non-expert investigating officer to give opinions on crucial fact determinations concerning liability when the officer did not witness the accident. Fontenot v. Cooper, 599 So.2d 883 (La.App. 3 Cir.), writ denied, 604 So.2d 1305 (La.1992). See also, Maricle v. Liberty Mut. Ins. Co. 04-1149 (La.App. 3 Cir. 3/2/05), 898 So.2d 565, 574. The question of whether article 701 was violated is a determination within the discretion of the trial court. Wingfield v. State ex rel. Dept. of Transp. and Development, 01-2668 (La.App. 1 Cir. 11/8/02), 835 So.2d 785, 802.

Trooper Vittitoe testified that he had been with the Louisiana State Police for 27 years and had attained the rank of master trooper. He had participated in several classes relating to accident reconstruction, including advanced accident investigation. He also stated he had been previously qualified as an expert in accident reconstruction. He stated that he conducted a thorough investigation in this case, including speaking to witnesses and reviewing physical evidence and he consulted with an | ^accident reconstruction expert when making calculations outside of his expertise.

During direct testimony, plaintiffs counsel questioned Trooper Vittitoe regarding his opinion regarding the actions of Mr. Powe in traveling in the turning lane and the witness stated that such an action is improper. There were no objections to this testimony. On cross-examination, defense counsel asked whether, based on his investigation, he found the actions of Mr. Powe to be improper. Although there was an objection and the trial court was aware that Trooper Vittitoe had not been qualified as an expert, he allowed the witness to answer this question. At.this point, the trooper stated he found nothing improper in Mr. Powe’s action. On redirect examination, plaintiffs counsel again asked whether traveling in a turning lane was improper, and the trooper responded that it was.

The majority of Trooper Vittitoe’s testimony related to pertinent facts about the accident scene. For the most part, the portion of the testimony that could be seen as opinion testimony met the requirements of Code of Evidence article 701. Trooper Vittitoe stated that the evidence indicated that Mr. Powe was improperly traveling in the turning lane, but he testified that based on his investigation, Mr. Powe did not do anything improper. Trooper Vitti-toe did not testify as to his opinion as to the cause of this accident, and his testimony is largely based on reasonable perceptions of the accident scene based on his thorough investigation. Further, although Trooper Vittitoe was not qualified as an expert in accident reconstruction, the records supports a finding that he was qualified to respond to the question posed by defense counsel. We fail to find that the trial court abused its discretion in allowing this witness’ testimony.

|inFurther, even assuming the testimony was improperly allowed, we find any such error to be harmless. Plaintiff argued at trial that had Mr. Powe not traveled improperly in the turning lane, he would not have been in the path of travel of the Hernandez vehicle as it traveled across the highway and the accident would have been avoided. However, the jury evidently rejected this argument and determined that even if Mr. Powe’s actions were improper, such actions did not cause the accident in this case.

The record contains the testimony of Officer Ferroux, who stated she saw the Hernandez vehicle spinning out of control after it attempted to avoid a collision with an erratic driver. In addition, plaintiffs expert testified that Mr. Hernandez was reacting to a sudden emergency when he swerved and traveled into the opposite travel lane. Mr. and Mrs. Powe both testified that they did not see the Hernandez vehicle before the collision, and the photographs of the scene show that the accident occurred shortly after Mr. Powe pulled away from the gas station.

Based on ample evidence in the record, the jury evidently concluded that the accident was caused by the actions of the Bellow vehicle and Mr. Hernandez’ evasive actions as a result thereof. This factual determination is supported by the testimony and evidence in the record, and any improper opinion testimony regarding Mr. Powe’s actions at the time of the impact between the vehicles would not have affected the result. For these reasons, we find no reversible error on the part of the trial court in this case.

Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed. Plaintiff is to bear all costs of this appeal.

AFFIRMED.

      . The testimony in the record refers to the direction of the highway as both north/south and east/west. For the most part, U.S. 61 is a north/south highway, but it was configured in an east/west direction at the location of this accident.

      . Mr. Powe’s recollection of the speed he was traveling immediately prior to the accident varied. In a statement made immediately after the accident, Mr. Powe stated he was driving approximately 30 mph. At his deposition, he stated that he was "creeping” up the highway in the turning lane at approximately 4-5 mph. At trial, he stated he may have been going a little faster, perhaps 20 mph or less.


author: CLARENCE E. McMANUS, Judge.

text:
    Lisa W. Wall Wife of/and Guy E. WALL v. HMO LOUISIANA INC.
    No. 07-CA-744.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.

      Jonathan R. Cook, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    Charles A. O’Brien, III, Attorney at Law, Baton Rouge, Louisiana, for Defen-danVAppellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

[¡.Plaintiffs filed a petition for damages for negligence, intentional and/or negligent misrepresentation, breach of contract, breach of fiduciary duty and unjust enrichment, alleging that defendant failed to cancel an individual health insurance policy and continued to take premiums for two years, despite the fact that the same company had also issued a group plan under which she was insured. Subsequently plaintiffs’ petition was amended to allege additional claims of unfair and deceptive trade practices in violation of R.S. 51:1201 et seq. Named as defendants were HMO Louisiana Inc. and its agent, Kim Pellegrin Broussard.

Testimony at trial established plaintiff had an individual insurance policy that covered herself and her family and that she paid the premiums by monthly automatic bank draft. Thereafter, HMO Louisiana was contacted on behalf of Wall and Wall (the law firm of plaintiffs husband) in order to obtain a group policy. Ms. Wall testified that she informed HMO Louisiana’s agent, Kim Broussard that she wished to cancel her individual policy, and was told that it would be taken care of. In applying for the group policy, Ms. Wall filled out several forms including a form indicating prior continuing coverage. On that form, Ms. Wall listed her [¡¡individual policy, and recited a prospective termination date (in order to avoid a lapse in coverage). That form was dated and signed.

For the next two years, HMO Louisiana continued to withdraw the premiums for the individual policy. Plaintiff testified that she knew the funds were being withdrawn, but she thought that they were for her family coverage under the group policy. Plaintiff admitted that she received a renewal notice after the first year, but she placed it into her files unopened, believing that it too related to the group policy. When she received the renewal notice the second year, she first noticed that it was for the individual policy, and not the group policy. She contacted Ms. Broussard, who told her that her payments would be refunded. When HMO Louisiana refused to reimburse her, she filed this suit.

After trial on the merits, judgment was rendered in favor of the plaintiffs and against HMO Louisiana, Inc. in the amount of $16,400.73. The trial court further rendered judgment in favor of Ms. Pellegrin and against plaintiffs, dismissing their suit against her. The trial court, in its oral reasons for judgment, found that

Based upon the terms of the contract, which is P-3, Subsection J and Subsection F, it is quite apparent to the Court that the contract was drafted by HMO Louisiana, and any ambiguity will be interpreted against HMO Louisiana. It’s pretty clear that the form which has been labeled as P-4 is also a form generated by and used by HMO Louisiana, and any ambiguity with regard to that form would be interpreted against the company; because, by the contractual provisions of Paragraph J, a party cannot have two HMO Louisiana, Inc., contracts at the same time for hospital, medical, and/or comprehensive benefits. The Court finds that the individual contract, upon the inception of the group contract being placed, ceased to exist and was, thereby, cancelled by its very own terms.

The court denied the additional damages under unfair trade practices, stating that “The Court does not believe at this stage of the trial, which has concluded, that sufficient evidence has been introduced to suggest that this was an unfair trade practice which would warrant any additional damages.”

|4HMO Louisiana has appealed from this judgment. On appeal, it does not allege that the trial court erred in finding that the notice of termination of policy provided by plaintiff was adequate. HMO Louisiana argues that the trial court erred in failing to reduce the damage award by plaintiffs’ failure to mitigate their damages, and in failing to give credit against the recovery in the amount of benefits paid pursuant to the individual policy. Plaintiffs respond that defendant did not meet their burden of proof regarding the affirmative defense of failure to mitigate. Plaintiffs further contend that there was no evidence to support any finding that benefits were paid under both policies, and therefore HMO Louisiana is not entitled to a credit.

Plaintiffs answered the appeal, alleging that the trial court erred in failing to find that defendant’s actions constituted unfair trade practices warranting damages and attorney’s fees under R.S. 51:1201.

LSA-C.C. art. 2299 provides that “A person who has received a payment of a thing not owed to him is bound to restore it to the person from whom he received it.” LSA-C.C. art. 2300 states “A thing is not owed when it is paid or delivered for the discharge of an obligation that does not exist.”

In this case the trial court found that, by its very terms, the individual contract of insurance ceased to exist when the group coverage was issued. This finding was not disputed by the appellants. The premiums paid thereafter by plaintiff were for discharge of an obligation (insurance coverage under an individual policy) that did not exist.

Appellants argue that plaintiff was negligent in failing to realize that the withdrawals made each month were for the individual policy, and therefore she breached her duty to mitigate her damages. However, negligence per se is not a bar to recovery for the payment of a thing not due. Williams v. Bank of Louisiana, 454 So.2d 1138 (La.App. 4 Cir.1984), writ den. 460 So.2d 611 (La.1984); Shelter Ins. Co. v. Cruse, 446 So.2d 893 (La.App. 1 Cir.1984).

Appellant also argues that the trial court erred in failing to give credit for payments made under the individual policy for medical expenses incurred during the time period in question. In brief, appellants argue that they paid over $3000.00 on medical claims. Plaintiff testified that she received a check for $46.00 and her pediatrician received a check for $600.00, however these checks were not negotiated. The record fails to substantiate appellant’s allegations of payments made, and therefore it did not meet its burden of proving that it was entitled to credit for payments made.

Considering the foregoing, we conclude that the trial court did not err in rendering judgment awarding full restitution of the payments made by plaintiff to defendants.

Plaintiff, in answer to this appeal, alleges error in the trial court’s finding that there was insufficient evidence to find liability under Louisiana’s Unfair Trade Practices Act, LSA-R.S. et seq.

The Louisiana Unfair Trade Practices Act is embodied in LSA-R.S. 51:1401 et seq. LSA-R.S. 51:1405(A) makes “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” unlawful. Acts which constitute unfair or deceptive practices are not specifically defined in the statute and are determined by the courts on a case-by-case basis. In order to recover damages for a claim made under this act, a plaintiff must prove that the conduct offends public policy, is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. For conduct to be unfair it must offend established public policy. Fraud, deceit and misrepresentation constitute deceptive practices.

Dixie Sav. and Loan Ass’n v. Pitre, 99-154 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, writ den., 99-2867 (La.12/10/99), 751 So.2d 855.

|fiThe trial court reviewed the record and found no conduct which would support a finding that defendant engaged in unfair trade practices. We cannot say that the trial court was manifestly erroneous in this determination.

For the above discussed reasons, the judgment of the trial court is affirmed. Each party is to bear its own costs.

AFFIRMED.


text:
    Joseph BOXIE v. Holly E. SMITH-RUFFIN, Enterprise Leasing Company of New Orleans, and Legion Insurance Company Joseph Daniel Patt v. Holly E. Smith-Ruffin, Enterprise Leasing Company of New Orleans, and Legion Insurance Company.
    Nos. 07-CA-264, 07-CA-265.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.

      Gerald C. deLaunay Perrin, Landry, de-Launay, Dartez & Ouellet, Lafayette, Louisiana, for Plaintiff/Appellant.
    Donna Bramlett Wood, Lynda A. Tafa-ro, Attorneys at Law, Metairie, Louisiana and Loren C. Marino, Harold E. Molaison, Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

I STATEMENT OF THE CASE

Plaintiffs, Joseph Boxie (“Boxie”)and Joseph Daniel Patt (“Patt”) were involved in a four car accident on I — 10 Eastbound in Kenner, LA on March 13, 2000. Boxie and Patt were both passengers in a truck driven by Joseph Rossyion (“Rossyion”). The truck was pulling a horse trailer with two horses traveling to the Fairgrounds race track. Rossyion had to stop suddenly because of traffic and was forced to pull the truck onto the shoulder of the road. The horse trailer stayed in the lane of traffic.

According to a pre-trial stipulation entered into by the parties, a vehicle driven by Holly Smith-Ruffin (“Smith-Ruffin”) struck the rear of a vehicle being driven by her co-employee Darla Dillon (“Dillon”), which then struck a vehicle driven by Debra Tamplain (“Tamplain”), which in turn struck the rear of the horse trailer connected to the truck being driven by Rossy-ion.

The testimonies at trial indicate there was a dispute regarding whether the Tam-plain and Rossyion vehicles were struck once or twice. According to the trial testimony of Tamplain, the vehicle being operated by Dillon struck her vehicle and she struck the horse trailer, then the Smith-Ruffin vehicle hit Dillon and Dillon struck her vehicle again, causing her to strike the horse trailer for a second time. Rossyion also testified that the car behind him hit the trailer, bounced off and he |3got hit again. He described feeling two jerks, with the first one being humongous and the second one simply shaking the trailer a little bit. Patt testified that he felt a second bump.

Smith-Ruffin and Dillon both testified that Smith-Ruffin hit Dillon, who hit Tam-plain. Dillon testified that she could have stopped in time had she not been struck by Smith-Ruffin. Smith-Ruffin and Dillon’s testimonies were consistent with the pretrial stipulation.

Dillon and Smith-Ruffin were both employed as drivers for Statewide Transport, Inc. At the time of the accident, both Dillon and Smith-Ruffin were working as drivers in the course and scope of their employment with Statewide Transport (“Statewide”).

On November 6, 2000, Boxie filed a Petition for Damages naming Smith-Ruffin, Enterprise Leasing Co., and Legion Insurance Company as defendants. Patt filed a Petition for Damages on March 7, 2001, also naming Smith-Ruffin, Enterprise Leasing Co., and Legion Insurance Company as defendants. Boxie and Patt’s lawsuits were consolidated by Consent Judgment on October 12, 2001.

On June 15, 2004, Plaintiffs filed a First Supplemental and Amending Petition adding Louisiana Insurance Guaranty Association (“LIGA”) as a defendant. Legion Insurance Company had been declared insolvent and LIGA was the responsible party for any losses claimed under the Legion insurance policy issued to Statewide. Plaintiffs then filed a Second Supplemental and Amending Petition on December 2, 2004, asserting that Statewide Transport was the lessee of the vehicle owned by Enterprise Leasing and being driven by Smith-Ruffin at the time of the accident.

Boxie & Patt filed a Third Supplemental and Amending Petition claiming the accident was caused by the negligence of Smith-Ruffin and Dillon and both 14were in the course and scope of their employment with Statewide at the time of the accident and Statewide was the lessee of both vehicles. The petition also alleged that the vehicle driven by Dillon was insured by Legion and LIGA was, therefore, responsible. Dillon was not named as a defendant in this petition.

This matter went to trial on July 10, 2006. Following a bench trial, the trial court took the matter under advisement and rendered a Judgment with Reasons on September 1, 2006. The trial court rejected plaintiffs’ request to reject the testimony regarding “two bumps” because of the pre-trial stipulation, supporting only one impact to the Rossyion vehicle, entered into by the parties as part of a pre-trial order. The trial court ultimately found that two impacts had occurred. The trial court found that plaintiffs were free from fault in the cause of the accident and the injuries they sustained. The trial court noted that Boxie and Patt’s medical records are very similar. Boxie complained of neck and back pain and Patt complained of back pain and disc problems. Both plaintiffs complained of erectile dysfunction and both suggested they needed possible surgery in the future, although there had been no surgery since 2000.

The trial court found that the evidence presented supported soft tissue injuries of a non-permanent debilitating nature for both plaintiffs. Patt argued that he couldn’t sit for a long period of time, but the trial court observed him sit in the courtroom for one and a half hours after he testified, without standing or leaving the courtroom to exercise.

The trial court further found the erectile dysfunction for both plaintiffs was not caused by this accident and found that the plaintiffs’ conditions were exaggerated. Therefore, the trial court found that much of the medical expenses incurred were not needed and/or resulted from circumstances unrelated to the | ^accident. The court also found that neither plaintiff will require surgical procedures in the future.

Regarding fault, the trial court found that Dillon had contributed to the losses of plaintiffs. The court found there is no evidence to indicate which impact resulted in greater injury to the plaintiffs. Therefore, the court assessed equal percentages of fault against Dillon and Smith-Ruffin. They were both assessed with 50% fault. Since Dillon was not a party to the lawsuit, the trial court ordered that the plaintiffs’ recovery from defendants be reduced by 50%.

The trial court awarded Boxie $50,000.00, including $40,000.00 for pain and suffering and $10,000.00 for medical expenses. Patt was awarded $37,000.00, including $30,000.00 for pain and suffering and $7,000.00 for medical expenses.

Plaintiffs filed a Motion to Fix and Tax Costs on October 25, 2006 seeking expert witness fees and deposition costs. A hearing was held on December 18, 2006 and the trial court awarded plaintiffs fifty percent of the expert witness fees and deposition costs they sought.

DISCUSSION

Plaintiffs have now filed this appeal of the trial court’s judgment. They assert eight assignments of error. First, they argue the trial court erred in failing to give effect to the stipulation made among the parties in this case. Second, plaintiffs argue the trial court erred in concluding that Dillon was 50% at fault in causing the accident. Third, plaintiffs argue the trial court erred in failing to find that State Transport, as Dillon’s employer, was vicariously responsible for any fault attributed to her in this accident. Fourth, plaintiffs contend the trial court erred by failing to award plaintiffs all medical expenses incurred and by arbitrarily fixing the amount of recoverable medical expenses. Fifth, they argue the trial court erred in failing to award full and adequate general damages to plaintiffs. Next, | ^plaintiffs argue the trial court failed to give appropriate weight to the diagnoses and opinions of the treating physicians. By their seventh assignment of error, plaintiffs argue the trial court failed to recognize and give effect to the presumption of medical causation. And finally, plaintiffs contend the trial court erred in failing to award plaintiffs the entirety of their trial deposition and expert witness expenses.

For the reasons which follow, we reverse the trial court’s findings in part, amend the amount of damages awarded to plaintiffs, and affirm the trial court’s judgment in part.

The standard of appellate review of a trial court’s factual findings is well settled and has long been established in this state. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Our supreme court set forth a two-part test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242, citing Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). On appeal, the issue to be resolved is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Earls, supra, citing, Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

An appellate court cannot shirk its duty of appellate review of fact by simply deferring to a trial court’s factual determinations because its reasons for judgment are couched in terms of a credibility call. Earls, supra, citing, Rogers v. City of Baton Rouge, 04-1001 (La.App. 1st Cir.6/29/05), 916 So.2d 1099, 1104, writ denied, 05-2022 (La.2/3/06), 922 So.2d 1187. This Court has a constitutional responsibility to review the entire record and to determine whether, as a whole, it supports the judgment rendered by the trial court. Earls, supra, citing, LSA-Const. Art. 5, section 10(B); Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742.

Proof by a preponderance of the evidence is defined as taking the evidence as a whole, the fact to be proved is more probably than not. Earls, supra, citing, Fuller v. Wal-Mart Stores, Inc., 519 So.2d 366 (La.App. 2nd Cir.1988). Uncontro-verted evidence should be taken as true to establish a fact for which it is offered absent any circumstances in the record casting suspicion as to the reliability of this evidence and sound reasons for its rejection. Id.

By their assignment of error number one, plaintiffs argue the trial court erred in failing to give effect to the stipulation made by the parties in this case. We agree with the plaintiffs and find the trial court erred by disregarding plaintiffs’ request to reject any testimony concerning “two bumps”, due to the stipulation entered into by the parties in the Pre-Trial Order. Stipulation Number 10 in the Pretrial Order stated the following:

The accident complained of occurred when the vehicle driven by Holly E. Smith-Ruffin struck the rear of the vehicle driven by her co-employee, Darla Dillon, which in turn struck a vehicle being operated by Debra Tamplain, which in turn struck the rear of the horse trailer which was connected to Mr. Rossyion’s vehicle, in which Plaintiffs were passengers.

The trial court ignored this stipulation and found that, according to the testimony by Rossyion, Patt, and Tamplain, two impacts occurred and the Rossyion vehicle was struck twice from the rear during this accident. We find the | atrial court erred by not acknowledging the stipulation that the parties entered into willingly before trial.

A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. R.J. D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600 (La.1988), citing Placid Oil Company v. AM. Dupont Corporation, 244 La. 1075, 156 So.2d 444 (1963). Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. R.J. D’Hemec-ourt Petroleum, supra, citing Wickliffe v. Cooper and Sperrier, 161 La. 417, 108 So. 791 (1926). Such agreements are the law of the case. R.J. D’Hemecourt Petroleum, supra.

According to the stipulation, there was only one impact. The accident occurred because the Smith-Ruffin vehicle struck the Dillon vehicle, which started a chain of events ending with the Tamplain vehicle striking the Rossyion horse trailer.

By assignments of error number two and three, plaintiffs argue the trial court erred in concluding that Dillon was fifty percent at fault in causing the accident and in failing to find Statewide Transport, as Dillon’s employer, vicariously liable for any fault attributed to her. Based on the stipulation, we find Dillon was not at fault in this accident and therefore, the trial court erred in finding her fifty percent at fault. Since we find Dillon was not at fault, Statewide Transport will not be vicariously responsible for any damages as her employer.

Further, we agree with the trial court’s finding that plaintiffs were free from fault in the cause of the accident and have now held that Dillon was also free from fault. Thus, we find that Smith-Ruffin was solely at fault in causing this accident. We also find that Statewide Transport is vicariously liable as Smith-Ruffin’s employer because she was in the course and scope of her employment at the time |aof the accident. Therefore, defendants Smith-Ruf-fin, Statewide, and LIGA, as insurer for Statewide, are responsible for the total damages awarded to plaintiffs.

By assignments of error numbers four, six, and seven plaintiffs argue the trial court erred by failing to award plaintiffs all of the medical expenses incurred by them in this matter, by failing to give appropriate weight to the diagnoses and opinions of the treating physicians, and by failing to recognize and give effect to the presumption of medical causation. The trial court found that the evidence only supported a finding that each plaintiff suffered soft tissue injuries of a non-permanent debilitating nature. The trial court found that much of the medical expenses incurred by plaintiffs were not needed or resulted from circumstances unrelated to the accident because the plaintiffs’ conditions were exaggerated. Finally, the trial court found that neither plaintiff will require surgery in the future. Therefore, the trial court awarded Boxie only $10,000.00 in past medical expenses and Patt $7,000.00 in past medical expenses. The evidence presented by plaintiffs indicate that actual medical expenses incurred by Boxie totaled $37,064.03 and the actual medical expenses for Patt totaled $39,948.19.

Medical Evidence for Plaintiff Boxie

The medical evidence presented at trial shows that Boxie was first treated in the emergency room of St. Martin Hospital on March 16, 2000 with complaints of neck and back pain. He was prescribed medication and told to follow-up with a physician if needed. On March 28, 2000 he reported to Dr. Bryan LeBean, an internist, with complaints of neck pain and headaches. Boxie also had complaints of back pain at his April 25, 2000 visit with Dr. LeBean. Dr. LeBean proceeded with conservative treatment and ordered an MRI in July 2000. The MRI indicated Boxie suffered a disc herniation at L3-4 and L5-S1. Dr. LeBean opined that Boxie was a candidate for surgery based on the multi-level lumbar disc herniations. |inHowever, Boxie did not have the surgery. Thereafter, he continued to be treated by Dr. LeBean for observation and medication management. Boxie treated with Dr. LeBean from March 2000 until November 2005. Dr. LeBean testified that he believed Boxie’s back injury was related to the accident of March 2000.

Dr. LeBean also treated Boxie for impotence, which began several months after Dr. LeBean began treating Boxie. Dr. LeBean thought the impotence was consistent with the lower back injury, and since Boxie had no problems before the accident, Dr. LeBean related the impotence problem to the accident.

Dr. LeBean also treated Boxie for high blood pressure with medication. Dr. Le-Bean thought the need for the medication was related to the accident because Boxie was predisposed to high blood pressure and the stress of the accident aggravated his condition.

Dr. LeBean referred Boxie to Dr. David Jarrot, a neurosurgeon. Boxie was first seen by Dr. Jarrot on August 8, 2000. Dr. Jarrot diagnosed Boxie as suffering from central protrusions at L3-4, 4-5, L5-S1. On August 15, 2001, Dr. Jarrot referred Boxie to Dr. John Watermeier, an orthopedic surgeon, for surgical options.

Boxie first reported to Dr. Watermeier on August 23, 2001. Dr. Watermeier ordered an EMG nerve conduction study and prescribed pain medication. The EMG study revealed L-5 radiculopathy and Dr. Watermeier diagnosed Boxie with lumbar disc syndrome. In March 2002, Dr. Wat-ermeier recommended an epidural steroid block and stated in his report that if no improvement, Boxie may be a candidate for surgical treatment. On April 2, 2002, Dr. Watermeier recommended surgery, including the IDET procedure. The surgery or IDET procedure was never performed. Dr. Watermeier testified that Boxie’s disability from this injury is a 10-15% physical impairment with no activities requiring repetitive bending or stooping.

^Defendants presented the testimony of Dr. David Aiken. Dr. Aiken never physically examined Boxie, but reviewed his records. Dr. Aiken believed Boxie suffered a small disc rupture at L5-S1, which could have been caused by the accident. Dr. Aiken did not think surgery was required and didn’t think Boxie suffered from neurogenic impotence related to the accident. Dr. Aiken did believe it was reasonable to follow the treatment recommendations of his physicians regarding medications, physical therapy, and the injections.

Medical Evidence for Plaintiff Patt

Like Boxie, Patt reported to the emergency room of St. Martin Hospital on March 15, 2000. He had complaints of left hand pain and lower back pain. He was diagnosed with lumbar strain, given medication, and told to follow-up with his physician if needed. Patt reported to Dr. Le-Bean on March 28, 2000. Dr. LeBean prescribed conservative treatment, including medication and therapy. He ordered an MRI in July 2000, which showed herniated discs at two levels.

Dr. LeBean also diagnosed Patt with impotence and believed it was related to the accident because the problem didn’t start until after the accident and the injury occurred in a location where the nerves control erectile dysfunction.

Dr. LeBean referred Patt to Dr. Jarrot, who diagnosed him with herniated discs at L4-5 and L5-S1. Dr. Jarrot then referred Patt to Dr. Watermeier on August 15, 2001.

Patt first saw Dr. Watermeier on August 23, 2001. Dr. Watermeier reviewed the MRI previously done and found evidence of disc herniations at L4-5 and L5-S1 in the lower back. A nerve conduction study showed abnormalities consistent with herniations and a CT scan showed broad based herniations at L5-S1. On February 6, 2002, Dr. Watermeier felt Patt was not improving and recommended an epidural spinal block while waiting for clearance for a lumbar fusion. On March 6, 2002,112Pr. Watermeier noted that Patt was still complaining of back pain, therefore, he recommended a less invasive procedure, an IDET procedure. Dr. Water-meier’s notes from the April 2, 2002 visit with Patt indicate that surgery was recommended, including the IDET procedure. Patt continued to see Dr. Watermeier until November 20, 2002 and, on that date, Dr. Watermeier noted that Patt was not currently interested in epidural treatments or any type of surgical intervention. Dr. Watermeier testified that Patt’s disability rating is 10-15% whole body with restrictions against lifting.

In a personal injury suit, a plaintiff must prove causation by a preponderance of the evidence. Dabog v. Deris, 625 So.2d 492 (La.1993). A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Housley v. Cerise, 579 So.2d 973 (La.1991), citing Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977).

In determining medical causation, plaintiffs have argued that the trial court did not give more weight to the testimonies of the treating physicians. We recognize that the diagnosis and opinion of the treating physician are entitled to more weight than those of doctors examining plaintiff for consultation for litigation purposes only. Jaeckle v. Dresser Industries, 457 So.2d 646 (La.1984). We also note that Dr. Aiken, who testified on behalf of the defendants in this case, did not actually examine the plaintiffs. His testimony was based solely on a review of plaintiffs’ medical records.

113Based on the testimonies and medical records introduced at trial, we find the injuries sustained by Patt and Boxie were caused by the accident in March 2000 and the treatments they received were related to that accident. We further find the trial court erred in failing to award the total medical expenses incurred by each plaintiff.

When a plaintiff alleges that they have incurred medical expenses as a result of injuries suffered in an accident and that treatment is supported by a bill, that evidence is sufficient to support an award for past medical expenses unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident. Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242, citing Stiltner v. National Union Fire Insurance Company, 2000-2230 (La.App. 4 Cir. 10/3/01), 798 So.2d 1132. In the absence of bad faith, it is error for the trier of fact to fail to award the full amount of medical expenses that are proven by a preponderance of the evidence that were incurred as a result of an accident. Earls, supra, citing Simon v. Lacoste, 2005-550 (La.App. 3 Cir. 12/30/05), 918 So.2d 1102.

We find there is sufficient evidence to support an award for the total amount of both plaintiffs’ past medical expenses. Plaintiffs have submitted medical bills for the treatments received and have alleged the expenses were incurred as a result of the accident in question. Their physicians have testified that the medical treatments received were for injuries sustained as a result of the accident. Defendants have not supplied sufficient evidence to indicate the bills are unrelated to the accident. Therefore, we find plaintiffs are entitled to recover their total past medical expenses. We award Boxie $37,064.03 in past medical expenses. We award Patt $39,948.19 in past medical expenses.

|14We also find that Boxie and Patt are not entitled to future medical expenses for surgery and follow-up treatment. Dr. Watermeier recommended surgery for both plaintiffs in April 2002. Both plaintiffs refused the surgery and the less invasive IDET procedure. As of the date of the trial, July 10, 2006, neither plaintiff had undergone any type of surgical procedure for their back injuries. Further, plaintiffs have not indicated on appeal that they have undergone any surgical procedure since the date of trial. Therefore, it appears the plaintiffs chose to conservatively treat their injuries with medication and follow-up visits with their physicians and have provided no evidence that they will seek surgical treatment in the future. Therefore, we will not award future medical expenses to these plaintiffs.

In their assignment of error number five, plaintiffs argue the trial court failed to award full and adequate general damages. In regard to the appellate review of general damage awards, the Louisiana Supreme Court noted in Theriot v. Allstate Insurance Co.:

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion^] ... And, “[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient.” Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions ... Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that that award is inadequate

Williams v. Roberts, 05-852 (La.App. 5 Cir. 4/11/06), 930 So.2d 121, citing Theriot v. Allstate Insurance Co., 625 So.2d 1337 (La.1993).

|1sPatt suffered two herniated discs in his lower back and treated with various physicians from March 2000 until May 2006. During that time, he continued to complain of pain and was given mostly medications to treat his pain. He was offered surgery, but declined to undergo the procedures to alleviate the pain. He was also given physical therapy treatments but only for approximately four weeks. Patt was treated conservatively with small amounts of physical therapy and medications for a total of seventy four months. The trial court awarded Patt $30,000.00 for pain and suffering. We recognize Patt received treatment for his injuries for a lengthy period of time, however, this was partly due to the fact that he did not undergo a surgical procedure but instead continued to see his physician and conservatively treat with pain medication. We do not find a clear abuse of the trial court’s discretion in its general damage award for Patt. The general damage award by the trial court is adequate, given the injuries suffered by Patt and the treatments he underwent. Therefore, we affirm the trial court’s award of general damages for pain and suffering for Patt of $30,000.00.

We also affirm the trial court’s award of $40,000.00 in damages for pain and suffering for Boxie. Boxie suffered two disc herniations in his back and treated with various physicians for his injuries from March 2000 until November 2005, for a total of 68 months. Just like Patt, Dr. Watermeier recommended that Boxier undergo surgery in April 2002. Boxie, like Patt, did not undergo a surgical procedure, but treated conservatively with Dr. LeBe-an and received medications for the pain. We do not find a clear abuse of the trial court’s discretion in its general damage award for Boxie. The general damage award by the trial court is adequate, given the injuries he suffered and the treatments he underwent, h ¿Therefore, we affirm the trial court’s award of $40,000.00 in general damages for pain and suffering for Boxie.

Finally, plaintiffs argue in assignment of error number eight that the trial court erred in failing to award them the entirety of their trial deposition and expert witness expenses. Following trial, the trial court’s judgment, dated September 1, 2006, provided that defendants were to pay all costs of the proceedings. Thereafter, plaintiffs filed a Motion to Fix And Tax Costs seeking expert witness fees for Dr. Watermeier and Dr. LeBean and deposition costs for trial depositions of Dr. Watermeier, Dr. LeBean, Tamplain, and Rossyion. The total costs sought by plaintiffs was $4,141.40. A hearing was held on December 18, 2006 and the trial court ordered LIGA, on behalf of the defendants, to pay only one half of the costs. Defendants had argued this was appropriate because the judgment had cast the remaining defendants at fifty percent fault. We reverse the trial court’s judgment regarding these costs and order that defendants pay the entire amount of costs, $4,141.40. As discussed above, we found Smith-Ruffin to be 100% at fault in the cause of this accident, with no fault attributed to Dillon. Therefore, there is no need to reduce the costs by fifty percent.

Accordingly, the judgment of the trial court is reversed in part and affirmed in part. We reverse the trial court’s finding that two impacts occurred and hold the stipulation made by the parties in their Pre-Trial Order to be valid and binding. We also find Smith-Ruffin to be solely at fault in the accident, with Statewide vicariously liable as her employer, with no fault attributed to Dillon. We further amend the trial court’s past medical expense award to include all medical expenses incurred. We award Boxie $87,064.03 in past medical expenses and award Patt $39,948.19 in past medical expenses.

|17We also reverse the trial court’s judgment regarding the award of fees and costs and order defendants to pay the entire amount sought by plaintiffs, $4,141.40. Finally, we affirm the trial court’s award of general damages of $40,000.00 for Boxie and $30,000.00 for Patt.

REVERSED IN PART; AFFIRMED IN PART.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    BEVERLY CONSTRUCTION COMPANY, L.L.C. v. The PARISH OF JEFFERSON.
    No. 07-CA-847.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.
    David C. Loeb, Jason A. Cavignac, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    David S. Fos, Jeremy D. Dwyer, Assistant Parish Attorneys, Jefferson, Louisiana, for Defendani/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12Plaintiff Beverly Construction Company, L.L.C. (Beverly) appeals a judgment denying a permanent injunction and dismissing its petition for damages. Beverly was the unsuccessful lowest bidder for a Parish of Jefferson (the Parish) public work’s contract street repair contract for District 2. On March 28, 2007, by Resolution No. 107496, the Parish accepted Kass Brothers, Inc.’s (Kass’) bid as the lowest responsible bid and authorized the execution of a contract with Kass. Beverly filed a letter of formal protest regarding the Parish’s choice to accept Kass’ bid. The protest was denied on the basis that Beverly did not comply with a requirement stated in the Parish’s advertisement for bids. Beverly filed a petition against the Parish seeking an injunction, nullification of the contract, or damages, claiming it was the lowest responsible bidder. The primary question presented on ^appeal is whether the Parish could waive a requirement stated in its advertisement for bids. For the reasons that follow, we affirm.

The dispute involves a provision of the Public Contract Law, La.R.S. 38:2212(A)(l)(b), which sets forth advertisement requirements for bids. R.S. 38:2212 provides that “[t]he provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any public entity.” The primary question presented on appeal is whether this provision permitted the Parish to waive a requirement stated in its advertisement for bids; namely that “THIS BID PACKAGE MUST BE RETURNED IN ITS ENTIRETY” and “BID PACKAGE, INCLUDING INSTRUCTIONS AND SPECIFICATIONS, MUST BE RETURNED IN ITS ENTIRETY FOR BID TO BE VALID.” [upper capitalization in original]. It is undisputed that the Beverly failed to return and include in its application the blank corporate resolution form that was in the bid package. Instead, Beverly submitted its own corporate resolution form.

Beverly argues that it is not seeking a waiver of any of the bid requirements, it is simply asking that the bid instructions be interpreted reasonably and in good faith in accordance with the public bid law. Beverly states that it does not seek a waiver of the requirement that a corporate resolution be included in the bid package, instead it is objecting to the Parish’s interpretation of its required bid application.

Beverly argues that the Parish’s rejection of the bid was an overly restrictive and nonsensical interpretation of the pub-lie bid law. Beverly concedes that the bid | requirements stated that the bid package be returned in its entirety in order for the bid to be valid. But Beverly argues that these directions do not specify that the bidder is to return each and every original page of the bid invitation. Beverly contends that it merely substituted its own standard corporate resolution form in its bid submission and its bid should not have been rejected for the failure to return the original blank, and unused sample corporate resolution form.

Beverly also asserts that the Parish acted arbitrarily in interpreting its bid instruction so rigidly. In essence, Beverly contends that the Parish had the discretion to interpret the bid advertisement requirement that the bid package be returned in its entirety. In support of its argument, Beverly alleges that the Parish interpreted another advertised bid requirement regarding color maps more favorably to the bidders. Thus, according to Beverly, the Parish is acting arbitrarily in interpreting its advertised bid requirements.

Beverly refers to Addendum # 1 to the bid. The Addendum provides in pertinent part:

A “Color ” copy of the street map for Council District # 2 may be downloaded from The Jefferson Parish website at WWW.JEFFPARISH.NET/BIDS. A copy of the street map will also be mailed to each vendor.
THIS ADDENDUM FORMS A PART OF THE CONTRACT DOCUMENTS AND MODIFIES THE ORIGINAL BIDDING DOCUMENTS AND SPECIFICATIONS. THE CONTENTS OF THIS ADDENDUM SHALL BE INCLUDED IN THE CONTRACT DOCUMENTS. CHANGES MADE BY THIS ADDENDUM SHALL TAKE PRECEDENCE OVER THE DOCUMENTS OF EARLIER DATE.
PLEASE SIGN AND RETURN THIS ADDENDUM IN ITS ENTIRETY WITH THE BID PROPOSAL.

The parties stipulated that Boh Brothers did not return a color map of a District 2 submitted in its bid package for bid No. 50-82551 and Barriere Construction Company did not return a color map of District 2 in its bid package | r,submitted for bid No. 50-82551. Beverly relies on an e-mail from the Superintendent of Public Works which stated: “It is pertinent that the maps be printed and distributed in color.” Beverly argues the Parish acted arbitrarily when it did not reject the bid packages from two bidders who failed to return the original color map of District 2.

At the hearing, the Parish stated that neither of the two companies that submitted black-and-white photos were low bidders. Thus, the Parish never had to review those bids. Even if the Parish had looked at the bid applications closely and felt that these companies did not follow the instructions in the bid, then the Parish would disqualify those bids also.

On appeal, the Parish responds that the reference to the color map was merely for the convenience of the bidders and the bid specifications do not specify that a color or a black-and-white map must be returned. We agree that the bid specifications in the Addendum do not specifically require that color maps be returned in order for the bid to be valid.

We find, however, that the argument regarding the color maps is not germane. The provision at issue does not concern color maps. Moreover, the relevant provision is clear and unambiguous and not subject to interpretation. Beverly was required to return “this bid package ... in its entirety.” [emphasis added; upper capitalization omitted]. Beverly was clearly notified through the bid advertisement that the “bid package, including instructions and specifications, must be returned in its entirety for [the] bid to be valid.” [emphasis added; upper capitalization omitted].

This case is governed by La.R.S. 38:2212(A)(l)(b), which clearly does not allow the Parish, the public entity, to waive its bid requirements.

liWe find Hamp’s Const., L.L.C. v. City of New Orleans, 05-0489 (La.2/22/06), 924 So.2d 104, 110 controlling. In Hamp, the Louisiana Supreme Court interpreted R.S. 38:2212(A)(l)(b):

The legislature changed the wording of this statute several times in an attempt to change the law, and to make clear that the requirements of the advertisement for bids and the bid form, as well as the Public Bid Law, shall not be waived. The most recent amendment to the statute serves to emphasize that these requirements cannot be waived under any circumstances, regardless of whether they could be considered as in-formalities. Accordingly, the public entity should not include any requirements in its advertisement for bids or bid form that it considers insignificant or waiva-ble, because once included, these requirements are non-waivable as a matter of law.
This prohibition against waiver furthers the public interest because it expressly prevents a public entity from specifying certain requirements in a bid and later changing those requirements to accept alternate or substitute proposals. In this sense, the law severely curtails the discretion of the public entity, thereby insuring a level playing field for all bidders and a fair and equitable means by which competing bids might be evaluated to determine the lowest responsible and responsive bidder. One bidder cannot be provided with an advantage over another bidder due to a waiver.

Hemp emphasized that even “informalities” cannot be waived. Id. As such, the Parish could not waive its advertised bid requirement that the bid package must be returned in its entirety for the bid to be valid. Because Beverly did not return the blank corporate resolution form that was in the bid package, the Parish properly rejected Beverly’s bid as invalid.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . The petition also sought relief as to a parish street contract in District 1. But by joint stipulation the parties agreed that the issue was moot since Beverly had been awarded the District 1 contract on re-bid.

      . The petition also sought relief as to a parish street contract in District 1. But by joint stipulation the parties agreed that the issue was moot since Beverly had been awarded the District 1 contract on re-bid.

      . Kass, the successful bidder, is not a party to these proceedings. Since the contract has been awarded to Kass and the construction might be underway, Beverly now seeks damages rather than nullity of the contract. Under these circumstances, Kass does not qualify as a party needed for just adjudication. See, La.C.C.P. art. 641. A person should be deemed needed for just adjudication only when absolutely necessary to protect substantial rights. Industrial Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207, 1217 (citations omitted).