author: THOMAS F. DALEY, Judge.

text:
    Arnese EARLS and Willie Earls as Natural Tutor of the Minor Child, Quomeshia Earls v. Darren W. McDOWELL and State Farm Mutual Automobile Insurance Company.
    No. 07-CA-17.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.

      Thomas E. Campbell, Jacqueline A. Campbell, Metairie, Louisiana, for Plaintiffs/Appellants.
    Christopher P. Lawler, Donovan & Lawler, Metairie, Louisiana, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

[2The plaintiffs have appealed the trial court judgment awarding limited medical expenses and general damages in this personal injury lawsuit. For the reasons that follow, we affirm the judgment as amended.

FACTS:

This appeal arises from an accident that occurred on August 9, 2003 when a vehicle driven by the defendant, Darren McDowell, struck the rear of a vehicle driven by the plaintiff, Arnese Earls. Mrs. Earls’ daughter, Quomeshia Earls, was in the vehicle with her at the time of the accident. Both Earls sought treatment from a chiropractor, Dr. G.W. Gilmore, for soft tissue injuries. The Earls filed suit against Mr. McDowell and his insurer, Allstate Insurance Company (Allstate). The matter proceeded to trial.

At trial, Mrs. Earls testified that at the time of the accident she was driving a 2001 Dodge Caravan and was stopped at a red light on Loyola Drive at the intersection of 31st Street in Kenner. When the defendant’s vehicle struck her van, | ashe heard a big noise and her car moved a couple of feet. Mrs. Earls explained that she was knocked forward inside the vehicle. Pictures of the van she was driving at the time of the accident were introduced and she testified that prior to the accident the van was in “good condition.” The pictures revealed damage to the rear tailgate of the van.

Mrs. Earls testified that her husband came to the accident scene and drove them home. When she got home she started to have headaches. She thought it would go away and she took Tylenol and went to bed. Mrs. Earls testified that in the morning she had pain from her neck all the way down her back. She went to the chiropractor the next morning. X-rays were taken and medication was given for the pain. Heat and massage treatments were administered for the pain. Mrs. Earls testified that she continued to visit the chiropractor for five months and was not having any further problems at the time of discharge.

On cross-examination, Mrs. Earls testified that Dr. Gilmore suggested she visit his office for treatment two or three days per week. The defense counsel pointed out gaps in her treatment ranging from one to two weeks in duration. Mrs. Earls explained that when she felt better she “slacked up” on her treatments and thought the pain would go away. She also testified that Dr. Gilmore was on vacation during one of the gaps in treatment.

Quomeshia Earls testified that she was 14 years old at the time of the accident. She explained that as she and her mother were stopped at the red light, they heard a “big bang,” which moved the van. She was “jerked” in the van and her neck and back were “bothering” her when she jerked. Quomeshia testified that later that day her back, lower back, and arm were hurting. She sought treatment from Dr. Gilmore who gave her massage and heat treatments. She denied any |4prior neck and back problems and stated the treatments by Dr. Gilmore helped her pain. She had, no further difficulties after her discharge from Dr. Gilmore.

At trial medical reports by Dr. Gilmore for both Mrs. Earls and Quomeshia were admitted into evidence. The report states x-rays and a physical examination were performed and that Mrs. Earls’ sustained:

(1) acute severe cervical sprain and strain with concomitant paraverte-bral muscle spasm and attending su-boccipital neuralgia (resulting in severe headaches);
(2) Acute severe lumbar sprain and strain with associated deep and superficial muscle spasm;
(3) Acute sprain and strain of the left writs;
(4) Multiple intersegmental vertebral spinal disrelationships (unspecified curvature of the spine).

The report states that specific manipulative procedures were performed and hydrotherapy and massage therapy were used as an adjunct to the manipulation. Dr. Gilmore further stated: “It is my opinion, based on the history as presented by the patient and the above noted examination findings, that the above noted injuries were sustained in the accident of August 09, 2003.” The medical bill indicated Mrs. Earls visited Dr. Gilmore from August 11, 2003 until she was discharged on January 24, 2004 for a total of 21 times; the total bill was $1,566.00.

The report for Quomeshia states that a physical examination was performed and x-rays were taken. Quomeshia sustained the following injuries:

(1) Acute severe cervical sprain and strain with associated deep and superficial muscle spasm, myofascitis and radiculitis radiating the trajectory of the right brachial plexes;
(2) Acute moderate lumbar sprain and strain;
(3) Acute sprain and strain of the right arm;
(4) These sprains and strains are accompanied by ligamentous instability, myofascitis and localized evidence of nerve root irritation.

| ¡¿Treatments consisting of spinal manipulation, hydrotherapy, and massage therapy were rendered to Qyomishia starting August 11, 2003 and ending January 24, 2004, for a total of 16 visits. Her total bill was $1,225.00. The report states: “It is my opinion, based on the history as presented by the patient and the above noted examination findings, that the above noted injuries were sustained in the accident of August 09, 2003.”

At the conclusion of trial, the judge took the matter under advisement. Two days later he rendered judgment awarding Mrs. Earls special and general damages in the amount of $601.00 and special damages to Quomeshia in the amount of $200.00. This timely appeal followed.

LAW AND DISCUSSION:

On appeal, plaintiffs contend the trial court committed manifest error and quotes from the reasons for judgment, which state:

On the witness stand, the court found neither Arnese or Quomeshia to be convincing about being injured or experiencing pain. There was no testimony as to treatment of the alleged wrist and arm injuries. The accident was minor, and this court finds that Arnese experienced only minor discomfort for a short period of time, and that Quomeshia was not injured at all. In fact, Quomeshia repeatedly hesitated during testimony and seemed to be looking toward her mother for clues or prompting. While plaintiffs produced bills for massage and hydrotherapy, plaintiffs failed to bear their burden of proving that the majority of those treatments were related to an injury or necessitated by the accident. Notwithstanding, both plaintiffs were entitled to be X-rayed and examined for injuries after the accident.

Plaintiffs contend that the trial court ignored plaintiffs’ uncontroverted testimony, which is supported by the medical reports of Dr. Gilmore. Plaintiffs contend the medical reports were stipulated to by the parties and, therefore, the court is bound by this evidence. The record reflects that when the reports were introduced, the trial judge asked “So, the stipulation is that those exhibits come into evidence?” 1 ^Plaintiffs’ counsel answered affirmatively. Accordingly, we find that the parties stipulated that the medical records be admitted into evidence.

In rendering judgment, the trial judge found neither Mrs. Earls or Quomeshia “to be convincing about being injured or experiencing pain.” He found Mrs. Earls “experienced discomfort for only a short period of time” and that Quomeshia was not injured at all. The judgment further states that while plaintiffs produced bills for medical treatment they failed to “bear their burden of proving that the majority of those treatments were related to an injury or necessitated by the accident.” The trial judge explained that he awarded Mrs. Earls general damages of $300.00 and special damages for treatment on August 11th and August 15th; the special damage award to Quomeshia were for x-rays and examination on August 11th.

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). 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 factfin-der’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. 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. 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. See, 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. Fuller v. Wal-Mart Stores, Inc. 519 So.2d 366, (LaApp. 2nd Cir.1988). Uncontroverted 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.

Our review of the entire record and the evidence submitted indicates that the trial judge erred in finding that the plaintiffs failed to prove they were injured, experienced pain, and that their medical treatment was related to the accident. Rather, we find the evidence in the record to the contrary: the reports by Dr. Gilmore on both plaintiffs state that in his opinion, the plaintiffs’ injuries described in his report were sustained in the accident of August 9, 2003. The reports list the injuries and the treatment for the injuries. These reports are uncontroverted, the trial judge gave no reason for rejecting these reports, nor does our review of the record reveal any circumstances that would cast doubt as to the reliability of these reports. Thus, we find the trial judge committed manifest error in finding the plaintiffs failed to prove the medical treatment they received was necessitated by the accident. 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, |sthat 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. 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. Simon v. Lacoste, 2005-550 (La.App. 3 Cir. 12/30/05), 918 So.2d 1102. We find no contradictory evidence and nothing in the record to cast suspicion on the medical bills submitted by plaintiffs. Accordingly, the judgment of the trial court is amended to include the total amount of medical expenses incurred by plaintiffs for the injuries sustained in this accident.

We now turn to the general damage award rendered to Mrs. Earls and the lack of a general damage award rendered to Quomeshia. Mrs. Earls testified that she had headaches and pain in her neck, back, and wrist after the accident. She sought treatment from Dr. Gilmore for these complaints. Dr. Gilmore’s report states Mrs. Earls complained of pain in the neck, head, lower back, left wrist, and shoulders. His examination revealed objective findings of injury, i.e. loss of the normal cervical lor-dotic curvature and muscle spasms. The medical bill indicates Mrs. Earls visited Dr. Gilmore five times in August, five times in September, three times in October, three times in November, twice in December and three times in January for a total of 21 visits. The bill indicated there were gaps in the treatment lasting anywhere from two to three weeks. In explaining the gaps in her treatment, Mrs. Earls testified that she went to Dr. Gilmore when the pain was there, but did not go when the pain got better. She testified that her pain was completely gone at the time of trial. The medical report was uncontroverted and we find nothing in the record to cast doubt upon the report or the bill.

| gQuomeshia also testified as to the pain she experienced after the accident. Although she could not recall the duration of the pain, she testified that she went to Dr. Gilmore for treatments and the treatments helped the pain. Although Quomeshia did not go into significant detail about her pain, her testimony is uncon-troverted. We find nothing in the record to controvert her testimony regarding her pain. While we acknowledge the trial court's comment regarding Quomeshia looking at her mother during her testimony, we do not find the fact that a child looking at her mother during her testimony sufficient in the absent of any other circumstances to rebut the medical evidence of injury and treatment. The report by Dr. Gilmore states that Quomeshia complained of pain in the neck, low back, and right arm, as well as stiffness throughout the spine. There are objective findings of injury on the exam, i.e. loss of normal cervical lordotic curvature and liga-mentous instability. The medical bill indicates Quomeshia visited Dr. Gilmore four times in August, three times in September, three times in October, three times in November, twice in December and twice in January for a total of 16 visits. The medical report was uncontroverted and we find nothing in the record to cast doubt upon the report or the bill. Accordingly, we find the trial court erred in finding Quomeshia failed to carry her burden of proving her injury and resulting pain.

Having determined that the trial judge committed manifest error in the finding Mrs. Earls was injured and experienced pain for only a short time, we find the general damage award of $300.00 to be abusively low. When the appellate court determines that the trier of fact abused its discretion in assessing the amount of damages, the appellate court must examine prior awards to determine the highest or lowest point that is reasonably within the trier of fact’s discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976). Since reasonable persons frequently disagree about the measure of general damage in a particular case, the hncourt must look at the effect of the particular injury to the particular plaintiff under the particular circumstances. See, Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The severity and duration of the injured person’s pain and suffering are the primary considerations in assessing general damages. Francis v. Brown, 95-1241, (La.App. 3 Cir. 3/20/96), 671 So.2d 1041. An appellate court may raise the award to the lowest reasonable amount or reduce it to the highest reasonable amount, only if articulable reasons are found to show that a reasonable trier of fact could not have made the award under all of the circumstances of the case. Williams v. Maritime, Inc., 04-625 (La. App. 5 Cir. 11/30/04), 889 So.2d 1055, writ denied, 04-3226 (La.3/11/05), 896 So.2d 72.

In Perry v. Anderson, 1999-0230 (La. App. 4 Cir. 1/12/00), 751 So.2d 374, the plaintiff suffered neck and pack pain in an automobile accident. He underwent eight months of treatment for these injuries and testified that he continued to have pain for three months following his discharge. The appellate court awarded plaintiff $5,000.00 in general damages. In Mannina v. Wal-Mart Stores, Inc., 99-1102, (La.App. 5 Cir. 2/29/00), 757 So.2d 98, this Court found the trial court’s award of $8,500.00 in general damages for a ten month soft tissue neck injury was adequate. Based on the above cited cases, we find the lowest amount of general damages a reasonable trier of fact could have awarded to Mrs. Earls for the injuries sustained in this accident is $4,000.00.

Likewise, having determined the trial court erred in failing to award general damages to Quomeshia using the above cited cases as a guideline, we award $3,000.00 in general damages, noting that Quomeshia had fewer visits to Dr. Gilmore over the same length of time as her mother and that Dr. Gilmore described her injuries as being more moderate than severe. This is the lowest amount of Ingeneral damages a reasonable trier of fact could have awarded under the facts and circumstances of this case.

Finally, the plaintiffs contend the trial court erred in denying plaintiffs’ court costs. Louisiana C.C.P. art.1920 provides that the trial court may render judgment for costs against any party. Generally, the prevailing party is not assessed with costs, unless he needlessly incurred additional costs or engaged in some conduct, justifying the imposition of costs against him. Law Offices of Robert M. Becnel v. Ancale, 02-285 (La.App. 5 Cir. 9/30/02), 829 So.2d 573. Additionally, C.C.P. art. 2164 grants the appellate court discretion to assess costs in the interest of equity. Since our de novo review of this case led to the conclusion that the trial court erred in not awarding the full amount of medical expenses incurred by plaintiffs and abused its discretion in its award of general damages to Mrs. Earls and in failing to award general damages to Quomeshia, we assess all costs in the trial court and on appeal to the defendants.

CONCLUSION:

For the foregoing reasons the judgment of the trial court is affirmed as amended. Judgment is hereby rendered in favor of Arnese Earls and against Allstate Insurance Company for general damages in the amount of $4,000.00 and special damages in the amount of $1,566.00. Judgment is rendered in favor of Arnese and Willie Earls as natural tutors of their minor daughter, Quomeshia Earls, and against Allstate Insurance Company for general damages in the amount of $3,000.00 and special damages in the amount of $1,225.00. In addition, Allstate Insurance Company is casts with all costs in connection with these proceedings.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: CHEHARDY, Judge. EDWARDS, J.

license: Public Domain

text:
    H2O HAIR, INC. v. Lisa MARQUETTE and Corey Sanchez.
    Nos. 06-C-930, 07-CA-18.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.

      Frederic Theodore Le Clercq, Kelly L. Covington, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellee, H2o Hair, Inc.
    Philip C. Ciaccio, Jr., Attorney at Law, Gretna, Louisiana, and Philip A. Witt-mann, John M. Fezio, Michael Q. Walshe, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant, Lisa Marquette.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   CHEHARDY, Judge.

IsThis decision involves a writ application and an appeal in a suit to enforce a non-competition agreement. We previously consolidated the writ application with the appeal. In the appeal, defendant Lisa Marquette challenges a judgment that granted a permanent injunction in favor of H20 Hair, Inc., prohibiting Marquette from operating her business, a hair salon. The writ application concerns a post-judgment contempt ruling against Marquette for violation of the injunction. In the appeal, we affirm the judgment, but amend it to provide it is a preliminary rather than a permanent injunction. We grant the writ application in part, reverse in part the judgment on which the writ application is based, and withdraw our stay order previously issued.

On August 4, 2006, H20 Hair, Inc. (“H20”) filed suit against Lisa Marquette, seeking a temporary restraining order and preliminary and permanent injunctions against her for violation of a non-competition agreement, damages for breach of contract, and attorney’s fees.

The petition alleged that H20 Hair, Inc. “has operated under the trade names of H20 Salon <& Spa, H20 Hair & Moore, Inc., H20 Salon, and H20 Spa.” H2Q |4also alleged it currently owns and operates a salon and day spa on Metairie Road in Metairie, Louisiana, and a salon in Mande-ville, Louisiana. H20 asserted that the majority of its client base is located in Orleans, Jefferson, and St. Tammany parishes, “where H20 solicits and sells services directly and over the phone to these clients and also performs services to their clients in these areas, whether it be at the salon or on location.”

H20 alleged it hired defendant Lisa Marquette as a stylist at the Metairie Road salon in 1994 and that Marquette entered into a Non-Competition Agreement in conjunction with her employment with H20 on October 25, 2000. H20 further alleged that Marquette’s employment with H20 concluded on June 30, 2006, on which date “Marquette informed Heather Mahoney and Michael John Gaspard that she was planning to resign from H20, had been thinking about it for sometime [sic], and felt she needed to open her own business to invest in the future of her family.”

According to the petition, Marquette also “admitted that while she was still employed at H20, she sent out letters to clients of H20 informing them of her change in business and location; she had advised clients that were doing business with her in the H20 salon about her plans; and that she had copies of the names, addresses, and phone numbers of clients at home, which she had used for purposes of informing them of her future plans.” Marquette told them her salon is Salon M, located on Canal Street in New Orleans, Louisiana.

In response, Marquette and Sanchez filed Exceptions of No Right and No Cause of Action. They asserted that H20 Hair, Inc. has no right of action against them because it was not a party to the non-competition agreement it seeks to enforce. They also asserted that the petition discloses no cause of action because the agreements “are in violation of La.R.S. 23:921 and therefore null and void,” in | sthat the petition asserts that H20 owns and operates a salon and day spa in Me-tairie and Mandeville; therefore, “[sjince plaintiff does not carry on a like business in New Orleans, the provision contained in the non-competition agreement prohibiting exceptors from working in New Orleans is null and void and unenforceable.”

A hearing took place on September 7, 2006. On September 28, 2006, the trial court rendered judgment that held the petition was moot as to the requests for temporary restraining order and preliminary injunction, granted the request for permanent injunction of two years as to Lisa Marquette, and denied the requests for damages and attorney’s fees.

In written reasons for judgment, the trial court made the following findings: The majority of H20’s clients come from Orleans, Jefferson, and St. Tammany parishes, and H20 solicits and sells services to clients in those areas.

On June 30, 2006, Marquette resigned from her employment at H20, stating that she planned to open her own salon (Salon M). She also admitted that she had sent out letters to clients of H20 informing them of her change of business and location, and that she had used a list compiled by H20 of the names, addresses, and phone numbers of those clients in order to do so. Her new salon is located at 4336 Canal Street in New Orleans.

* * *

Defendants argue that Michael John Gaspard, an owner of H20, testified that plaintiff does not have an occupational license to operate a salon in Orleans Parish, that plaintiff does not operate a spa or salon in the city, that it does not sell any of its products in the city, and that it does not remit sales taxes to the city. Gaspard did, however, testify that plaintiff obtained an occupational license in New Orleans to sell gift certificates there, and that H20 does perform off-site work in New Orleans pertinent to Mardi Gras balls and weddings. He admitted that this work makes up on 1% of H20’s total business, however. Finally, Gaspard testified that H20 did advertise its services in Orleans Parish via billboards and radio spots, gift certificates, and solicitation of customers over the telephone.

| ¿Testimony also was taken from various witnesses for the defense who, in total, made clear that H20 did very little, if any, offsite hairstyling/makeup work in New Orleans. This Court is convinced that this type of work performed in Orleans Parish is minuscule compared to the salon activities performed by plaintiff in Jefferson Parish. What is integral to the success or failure of the non-competition agreements signed by defendants, however, is not this issue, but the issue of whether other activities performed by plaintiff in Orleans Parish are sufficient to satisfy the requirement of 23:921 that it carries on business in that parish similar to that being conducted by defendants there.

It appears clear from the record that (1) H20 solicits customers in both Jefferson and Orleans Parishes, and therefore conducts business in both parishes; and (2) defendant Marquette used H20’s customer list to solicit that same customer base in both Jefferson and Orleans Parishes. Further, Marquette provides the same services at Salon M to customers that H20 provides to customers at their salon. Taking into consideration the above caselaw, it appears clear that Marquette violated a valid non-competition agreement and that plaintiff is entitled to injunctive relief against her, restraining her from operating her own similar business in either Orleans or Jefferson Parishes, or from soliciting such business (especially via the use of H20’s customer list) in those parishes.

* * *

[Sjince La.R.S. 23:921 in 2000 only allowed non-competition agreements that prevented an employee from leaving and beginning his own similar business in competition with his original employer ... [t]he Court agrees that therefore Marquette may not be enjoined from working as an employee of a similar competing business.

On October 4, 2006 Marquette filed a motion for suspensive appeal, posted the designated security for the appeal in the amount of $1,000.00, and was granted a suspensive appeal.

On October 9, 2006 H20 filed a motion for dismissal of Marquette’s order of appeal as premature because Marquette had filed the motion for appeal without proper notice to H20, and the time period within which to file a motion for new trial had not expired. H20 incorporated a motion for new trial into the motion for |7dismissal of the appeal, seeking a new trial of its request for damages and attorney’s fees.

On October 12, 2006 H20 filed a notice of deposition for a deposition of Lisa Marquette. On the same date, H20 filed a motion and order for contempt of court and assessment of fines and attorney fees. H20 sought to have Marquette held in contempt of court because she continued to operate Salon M despite the judgment enjoining her from doing so.

On October 20, 2006 Marquette filed a motion to quash the notice of deposition and for protective order, in which she asserted that she had taken a suspensive appeal and that H20 had failed to obtain leave of court to take a post-judgment deposition, as required by La.C.C.P. art. 1433. H20 subsequently applied for and was granted leave to take the deposition.

On November 27, 2006 the trial court rendered judgment granting H20’s motion for contempt, denying H20’s motion for fines and attorney’s fees, and denying Marquette’s motion to quash deposition and subpoena duces tecum and for protective order.

In written reasons for judgment, the trial court noted that La.C.C.P. art. 3612 provides that although an appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, such an order or judgment shall not be suspended during the pen-dency of an appeal unless the court in its discretion so orders. The court stated:

This in itself defeats defendant’s argument that any order of appeal suspends the effect of the preliminary injunction and that therefore she may not be held in contempt. Plaintiff furthermore cites a Supreme Court case ..., which states that in cases where the trial court has declined to grant a stay in a preliminary injunction matter, the appeal is in the nature of a devolutive appeal. In this matter, the Court is declining such a stay.
|8If, however, the injunction which was granted is characterized as a permanent (or “final”) injunction, as this Court believes (due to the fact that such an injunction was requested by plaintiff, the minute entries reflect setting both preliminary and permanent injunctions for hearing, and despite defendant’s Fourth Circuit case to the contrary), the court retains jurisdiction over this matter and the ability to enforce its judgment until the plaintiffs Motion for New Trial is heard... .After the hearing, defendant may appeal; however, Art. 3612 still applies as to the suspension of the judgment.

On December 1, 2006 Marquette filed a Notice of Intent to Apply for Supervisory Writ and Request for Stay regarding the judgment of November 27, 2006.

On December 5, 2006, the trial court signed an order directing that Marquette “immediately cease operations of Salon M in New Orleans, Louisiana and that she must pay $500.00 for every day Salon M remains open after the date of this Order.” That order stated further,

[T]his Honorable Court did not consider nor intend to suspend its Judgment granting an injunction on September 28, 2006; that the above captioned matter shall not be stayed pending any appeal; that this Court signed defendant’s Motion and Order for Appeal of October 4, 2006, in error; and that this Court orders that any appeal of its Judgment of September 28, 2006, shall be devolutive.

On December 6, 2006 Marquette’s writ application was lodged in this Court.

On December 20, 2006, the trial court rendered judgment granting H20’s motion for new trial as to damages and attorney’s fees only, but denying H20’s motion to dismiss the appeal. In written reasons for judgment, the court stated it had declined to stay its judgment of September 28, 2006, and that Marquette’s styling of her motion for appeal as suspensive did not suspend the effects of the September 28, 2006 judgment because it was never the court’s intention to suspend the effect of the 1 ajudgment. The court ordered Marquette to observe the injunction against her and directed that her appeal proceed as a devolutive appeal. Regarding H20’s motion for new trial, the court stated the only issues to be raised áre those involving damages to H20 due to Marquette’s acts and whether or not Marquette should pay H20’s attorney’s fees. In conclusion, the court said:
Finally, the Court agrees with defendant that a trial on whether or not a permanent injunction against her is warranted has yet to be heard. This is despite the exhaustive testimony taken during the trial of the preliminary injunction, since neither party stipulated that the trial should be applicable to a permanent injunction as well... .Therefore, the parties have the right to set a trial date as to a permanent injunction against her. [Emphasis added.]

On December 21, 2006, this Court granted a stay of the contempt order pending determination of the writ application, and referred the writ application to the panel that would handle the merits of the appeal from the injunction dated September 28, 2006. Because determination of this appeal also involves ruling on the merits of the writ application, we consolidated them. Although the writ application came before this Court first, we decide the appeal first, because it concerns the earlier judgment.

APPEAL

On appeal, Marquette asserts (1) the district court erred in stating that its ruling pertained to H20’s request for a permanent injunction, and Louisiana law provides that this appeal should be considered as an appeal of a preliminary injunction; (2) the district court erred in determining that H20 carries on a “like business” in Orleans Parish as required by La.R.S. 23:921(C) for enforcement of a non-competition agreement. Marquette asserts the judgment must be reversed.

First, with respect to whether the September 28, 2006 judgment was properly called a permanent injunction, Marquette is correct. The trial court erred h pin designating it as a permanent injunction, as the trial judge himself recognized in his judgment of December 20, 2006, which denied H20’s motion to dismiss the appeal. Hence, this appeal will treat the judgment as a judgment granting a preliminary injunction only. The judgment of September 28, 2006 is amended to reflect that it concerns a preliminary injunction rather than a permanent injunction.

The second assignment of error, regarding whether the court erred in finding that H20 conducts business in Orleans Parish, is the crux of this appeal.

The applicable statute is La.R.S. 23:921, as follows in pertinent part:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.
H. Any agreement covered by Subsections B, C, E, F, or G of this Section shall be considered an obligation not to do, and failure to perform may entitle the obligee to recover damages for the loss sustained and the profit of which he has been deprived. In addition, upon proof of the obligor’s failure to perform, and without the necessity of proving irreparable injury, a court of competent jurisdiction shall order injunctive relief enforcing the terms of the agreement.

I^The Non-Competition Agreement states it is between H20 Hair & Moore, Inc. and Lisa Marquette. The agreement provides as follows, in pertinent part:

2. Non^competition/Nonr-Solicitation. Employee agrees and covenants that, during the period of Employee’s employment with Company and for a period of two (2) years following employee’s termination of employment with Company (regardless of the reason for termination):
A. Employee will not divert, solicit, or pirate any customer of Company for whom services were performed, directly or under the supervision of some other Employee of Company, during the last two years of Employee’s employment with Company.
B. Employee will not divert, solicit, or pirate on Employee’s behalf, or on the behalf of any other Company, person or entity, any Employee of Company, or directly or indirectly cause any such Employee of Company to leave Company’s employment.
C. Employee will not, either directly or indirectly, on Employee’s behalf or for the behalf of others, render or be retained to render similar services to those which the Company engages whether as an officer, partner, trustee, consultant, independent contractor, sole proprietor for Employee, for any business engaged in the same business as Company, including any customer of Company for whom Employee has provided services during the last two years of Employee’s employment with Company. The Company’s business is to provide complete hair, body, and cosmetic services as well as the products for those services and includes, but is not limited to, cuts, styling, permanents, coloring, facials, massages, makeovers, and other related hair, body, and cosmetic services as well as products related to those services.

The agreement states that the geographic area to which the agreement applies is the Parish of Orleans and the Parish of Jefferson in the State of Louisiana. In addition, there is a clause requiring the employee to maintain | t ¾confidentiality of the employer’s confidential information, including customer lists. Finally, the parties agreed that the employer is entitled to injunctive relief to prevent or curtail any breach of the agreement by the employee.

On appeal, Marquette asserts the district court erred in relying on the precedent of Alexander & Alexander, Inc. v. Simpson, 370 So.2d 670, 671 (La.App. 4 Cir.1979), in which the fourth circuit held there is no distinction between non-competition and non-solicitation agreements, and that the statute applies not only to the “operation of a similar business, but also all components of the business operation, such as solicitation of customers. Solicitation of business is certainly a part of competition.” Marquette points out that the interpretation in Alexander relied on specific language in a prior version of the statute that is no longer found in the version of the statute applicable here. Further, Marquette argues, if mere solicitation of business in a parish equals carrying on business in a parish, such an interpretation would run afoul of the jurisprudence mandating that the statute be strictly construed and the strong public policy disfavoring non-competition agreements.

In addition, Marquette distinguishes the case of Moores Pump and Supply v. Laneaux, 98-1049 (La.App. 3 Cir. 2/3/99), 727 So.2d 695, 696-697, also cited by the trial court. In contrast to the facts in Moores, Marquette asserts, the nature of H20’s business does not require its employees to go to a specific site and render services to customers at that site. Rather, H20’s customers come to H20 in Metairie or Mandeville, and all services are rendered in-house at those locations. Thus, Marquette argues, the business involved in Moores is not analogous to the business in which H20 is engaged.

Marquette also points out that there was no documentary support for the testimony of Michael John Gaspard (one of the owners of H20) that one percent of | iaH2Q’s business comes from offsite work performed in New Orleans for Mardi Gras balls, weddings, and charitable functions. Gaspard could not name any specific Carnival organization for which H20 had performed such work and had no documentation to support his testimony. Further, neither of the other owners of H20 (Holli Gaspard and Heather Mahoney), nor any of the current employees of H20, testified in support of Gaspard’s testimony.

Several witnesses who testified for Marquette contradicted Gaspard’s testimony regarding off-site work. The gist of their testimony was that H20 declined client requests for off-site work, but that individual stylists employed by H20 occasionally did off-site work on their own time, and any payment received for such work belonged exclusively to the employee and was not shared with H20.

Marquette’s witnesses did not, however, contradict Gaspard’s testimony that a substantial part of H20’s customer base is from Orleans Parish.

The real issue on appeal is not whether H20 performed off-site work in Orleans Parish, but rather whether H20’s advertisement and solicitation of customers in Orleans Parish constituted “carrying on a like business” in that parish for purposes of the non-competition/non-solicitation agreement.

Louisiana has long had a strong public policy disfavoring non-competition agreements between employers and employees. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294, 298. Louisiana’s strong public policy restricting non-competition agreements is based on an underlying state desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. Id.

114Because such agreements are in derogation of the common right, they must be strictly construed against the party seeking their enforcement. SWAT 24, 808 So.2d at 298. La.R.S. 23:921(C) is an exception to Louisiana public policy against non-compete agreements and as such, must be strictly construed. See Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 00-1954 (La.App. 1 Cir. 9/28/01), 809 So.2d 405, 411, writs denied, 01-3316 (La.3/8/02), 811 So.2d 883, and 01-3355 (La.3/8/02), 811 So.2d 886.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. Jurisich v. Jenkins, 97-1870 (La.App. 1 Cir. 9/25/98), 722 So.2d 1008, 1011, reversed on other grounds, 99-0076 (La.10/19/99), 749 So.2d 597. However, in the event an employee enters into an agreement with his employer not to compete, pursuant to La.R.S. 23:921, and fails to perform his obligation under such an agreement, the court shall order injunctive relief even without a showing of irreparable harm, upon proof by the employer of the employee’s breach of the non-compete agreement. See Clear Channel Broadcasting, Inc. v. Brown, 04-0133 (La.App. 4 Cir. 3/30/05), 901 So.2d 553, 557; see also La. R.S. 23:921(H), formerly La.R.S. 23:921(G).

In determining whether the employer has met his burden of proof, the courts have been called on to consider the validity and enforceability of the agreement sought to be enforced by the employer. See SWAT 24, 808 So.2d at 294; Clear Channel, 901 So.2d at 558; Kimball, 809 So.2d at 405. Even though La.R.S. 23:921 mandates the court to issue injunctive relief upon proof of the obligor’s | ^failure to perform, without the necessity of proving irreparable injury, the employer must still establish that it is entitled to relief. See Clear Channel, 901 So.2d at 558.

Where the actions sought to be enjoined pursuant to a non-compete agreement do not fall within the exception found in LSA-R.S. 23:921(C) or where the non-compete agreement is found to be unenforceable for failure to conform to LSA-R.S. 23:921, the employer is unable to establish that it is entitled to the relief sought. See SWAT 24, 808 So.2d at 307; Clear Channel, 901 So.2d at 556-58; Kimball, 809 So.2d at 411-12.

Typically, a trial court enjoys considerable discretion in determining whether a preliminary injunction is warranted. See State through Louisiana State Bd. of Examiners of Psychologists of the Dep’t of Health and Human Services v. Atterberry, 95-0391 (La.App. 1 Cir. 11/9/95), 664 So.2d 1216, 1220. The trial court’s issuance of a preliminary injunction will not be disturbed on appeal absent a clear abuse of discretion. Sorrento Companies, Inc. v. Honeywell Int’l, Inc., 04-1884 (La.App. 1 Cir. 9/23/05), 916 So.2d 1156, 1163, writ denied, 05-2326 (La.3/17/06), 925 So.2d 541.

“[T]he statute contemplates that the parishes specified in the agreement must be parishes where the ex-employer actually has a location or customers. Employers are not permitted to lock former employees out of markets in which the employer does not operate.” Vartech Systems, Inc. v. Hayden, 2005-2499 (La.App. 1 Cir. 12/20/06), 951 So.2d 247, 258, citing Cellular One, Inc. v. Boyd, 94-1783 (La.App. 1 Cir. 3/3/95), 653 So.2d 30, 33, writ denied, 95-1367 (La.9/15/95), 660 So.2d 449.

We conclude the trial court did not err in finding that H20 does business in Orleans Parish for purposes of the non-competition agreement. It was | ^uncontradicted that a substantial portion of H20’s customers are residents of Orleans Parish, and that H20 solicitation of customers in Orleans Parish via advertising and other means is integral to its business. Therefore, even construing the agreement narrowly, we find that the judgment of September 28, 2006 was correct insofar as it issued an injunction as to Lisa Marquette. However, we amend the judgment to provide it is a preliminary rather than a permanent injunction.

WRIT APPLICATION

As noted above, the writ application ensued following a judgment that found Marquette in contempt for continuing to operate Salon M after issuance of the September 28, 2006 judgment. On November 27, 2006 the trial court ruled on H20’s motion for contempt, assessment of fines and attorney’s fees against Marquette. The trial court found Marquette in contempt for her failure to cease conducting her business as ordered by the September 28, 2006 judgment. The judgment did not address the fact that Marquette had been granted a devol-utive appeal from the September 28, 2006 judgment. The judgment simply granted H20’s motion for contempt, while denying H20’s motion for fines and attorney’s fees.

To find a person guilty of constructive contempt, the trial court must find that the person violated an order of the court intentionally, knowingly, and purposefully, without justification. A contempt proceeding incidental to a civil action is civil in nature, if the purpose of the proceeding is to force compliance with a court order; however, if the primary purpose in imposing the sentence is to punish for the disobedience of a court order, the proceeding is criminal. In criminal contempt the burden of proof is beyond a reasonable doubt. [Citations omitted.]

Ledet v. Ledet, 01-519 (La.App. 5 Cir. 10/30/01), 800 So.2d 1068, 1071.

In the application for writs, Marquette argued the trial court erred in finding she was in contempt of court, because the order granting the suspensive appeal l17suspended the effect of the judgment and, therefore, she was not in contempt by continuing to operate her business. Thus, she asserts she did not “intentionally, knowingly and purposefully violate the September 28, 2006 judgment of the court.”

We agree with Marquette’s position. The trial court granted the appeal as suspensive on October 4, 2006, and the trial court did not formally withdraw that designation until December 20, 2006. Thus, the effect of the September 28, 2006 judgment was suspended between October 4 and December 20, 2006. Hence, Marquette was justified in continuing to operate her business during that period, and the trial court erred in finding her in contempt on November 27, 2006.

Accordingly, the judgment of November 27, 2006 is vacated insofar as it granted H20’s Motion for Contempt against Lisa Marquette.

For the foregoing reasons, the judgment of September 28, 2006 is affirmed, but amended to provide it is a preliminary rather than a permanent injunction. The judgment of November 27, 2006 is vacated insofar as it granted H20’s motion for contempt against Lisa Marquette. The stay issued in connection with Writ Application No. 06-C-930 is withdrawn.

JUDGMENT OF SEPTEMBER 28, 2006 AFFIRMED IN PART AND AMENDED; WRIT APPLICATION GRANTED IN PART AND JUDGMENT OF NOVEMBER 27, 2006 AMENDED; STAY ORDER LIFTED

EDWARDS, J., dissents in part.

EDWARDS, J.

dissenting in part.

14 dissent from that portion of the majority opinion that finds that H20 made a prima facie case that a preliminary injunction was warranted, specifically, that H20 does business in New Orleans within the meaning of LSA-R.S. 23:921. I agree that the real issue on appeal is whether H20’s advertisement and solicitation of customers in Orleans Parish constitutes “carrying on a like business” for purposes of the agreement. The testimony at trial showed that H20’s activities, specially directed at clients in New Orleans at the time of the alleged contract violation, consisted of two billboards placed physically within the city limits. Further, although Mr. Gaspard testified that a substantial part of its customer base is from New Orleans, he produced no records to validate his self-serving testimony. Therefore, H20 failed to prove that a substantial part of its customer base derived from Orleans Parish. In my opinion, there was insufficient evidence to prove that the salon carried on a like business in Orleans Parish and, thus, that Marquette failed in her obligations under the non-compete agreement. Because H20 did not prove Marquette’s failure to perform, it was not entitled to injunctive relief under LS-R.S. 23:921(H).

I respectfully dissent.

      . Another former H20 employee, Corey Sanchez, who joined Marquette at Salon M as her employee, was also a defendant in this suit, but the case against him is not part of this appeal.

      . Marquette’s Exception of No Right of Action relied on the fact that the maker of the agreement was named as "H20 Hair and Moore, Inc.,” which the Marquette asserted showed that the plaintiff in this suit, H20 Hair, Inc., was not party to the agreement. The trial judge referred the exception to the trial on the merits. After hearing evidence from one of the principals of H20 that "H20 Hair and Moore, Inc.” was a trade name sometimes used by H20 Hair, Inc. in its earlier years, the trial court denied the exception of no right of action. Marquette has not appealed that ruling.

      . "[T]he Civil Code limits individuals' rights in other areas where a derogation of such rights would result in the individual becoming a public burden. An individual is forbidden from divesting himself of all his property by a donation inter vivos. LSA-C.C. art. 1497. Also, the right to contract not to compete is limited. LSA-R.S. 23:921. 'Both of these situations demonstrate the underlying state concern that a person cannot by convention deprive himself of the ability to support himself.’ Note, Louisiana’s Forbidden Antenuptial Waiver of Alimony Pendente Lite, 39 La. L.Rev. 1161, 1168 (1979).” McAlpine v. McAlpine, 94-1594, p. 11 (La.9/5/96), 679 So.2d 85, 91.


text:
    Tuyet Bach NGUYEN, Wife of Hoang Huy Le v. Hoang Huy LE.
    No. 07-CA-81.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.

      Jack L. Dveirin, New Orleans, LA, for Plaintiff/Appellant.
    Paul A. Bonin, Bonin Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   THOMAS F. DALEY, Judge.

12Tuyet Bach Nguyen appeals the court’s judgment, rendered on August 18, 2004, awarding her and her ex-husband, Hoang Huy Le, joint custody of their two sons. She argues that the trial court applied the wrong legal standard; in light of a history of family violence by Dr. Le, the trial court should have applied LSA-R.S. 9:361 et seq., and awarded Ms. Nguyen sole custody. After due consideration of the record and the applicable law, we find no error in the trial court’s judgment and affirm.

The parties married in 1988. Two children, JML (May 5, 1992), and AML (December 29, 1994), were born of the marriage. Ms. Nguyen filed a Petition for Divorce on June 29, 1999. In this Petition, Ms. Nguyen sought joint custody of the children. A judgment of divorce was granted on July 27, 2000. Ms. Nguyen filed a motion seeking sole custody on April 14, 2004. Dr. Le filed a Motion for Joint Custody and Visitation Schedule on July 14, 2004. The matter was heard on July |s22, 2004, and judgment rendered on August 18, 2004, denying Ms. Nguyen’s motion and awarding the parties joint custody.

On appeal, Ms. Nguyen argues that the trial court applied LSA-C.C. art. 132 when it should have applied LSA-R.S. 9:361 et seq., the Pos1>-Separation Family Violence Relief Act, due to the history of family violence by Dr. Le. In the alternative, Ms. Nguyen argues that even under art. 132, clear and convincing evidence was presented that it is in the best interest of the children that custody be awarded to her where Dr. Le perpetrated acts of family violence, where his whereabouts were rarely known, and where the parties cannot communicate.

In his brief, Dr. Le points out that at no time in the proceedings below did Ms. Nguyen seek relief under the Post-Separation Family Violence Relief Act. He argues that the ruling granting joint custody is supported by the facts of this case, and should be affirmed.

ANALYSIS

LSA-C.C. art. 132, which Ms. Nguyen pleaded in her Motion for Sole Custody, states:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

On appeal, however, Ms. Nguyen argues that the trial court should have applied LSA-R.S. 9:361 et seq., the Post-Separation Family Violence Relief Act. R.S. 9:364 states, in pertinent part:

|4A. There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent’s participation as a custodial parent because of the other parent’s absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child or children.

“Family violence” is defined in R.S. 9:362 as:

... includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injuring and defamation, committed by one parent against the other parent or against any of the children. Family violence does not include reasonable acts of self-defense utilized by one parent to protect himself or herself or a child in the family from the family violence of the other parent.

The provisions of the Post-Separation Family Violence Relief Act become operative if the court finds that there has been family violence and that there is a history of family violence. Ledet v. Ledet, 03-537 (La.App. 5 Cir. 10/8/03), 865 So.2d 762.

Ms. Nguyen, however, did not plead nor argue the applicability of the Post-Separation Family Violence Relief Act in the lower court proceedings. In her Motion to Set Child Custody and Child and Spousal Support for Trial, filed April 14, 2004, Ms. Nguyen stated the following basis for claiming sole custody:

Dr. Le’s presence in Louisiana, as opposed to Vietnam or California, is unpredictable. Dr. Le continues to lead a secret life he has refused to disclose in discovery. Dr. Le has very little contact with the children. There is clear and convincing evidence that it is in the best interests of both minor children for Ms. Nguyen to have sole custody.

In the Memorandum in Support, Ms. Nguyen cites LSA-C.C. art. 132 as the standard for sole custody. LSA-R.S. 9:361 et seq. is not cited. Possible domestic 1 .¡violence is mentioned in a Rule for Contempt filed by Ms. Nguyen four months after the judgment of divorce, and in Ms. Nguyen’s Memorandum in Opposition to Motion to Continue Custody Trial, filed July 19, 2004, though again she did not plead the applicability of the Post-Separation Family Violence Relief Act. In that Memorandum, Ms. Nguyen also alleged that Dr. Le had virtually no contact with the children since July 4, 2002.

At the hearing on, the Motion, Ms. Nguyen testified that on many occasions during their marriage, Dr. Le would choke her and then apologize and tell her to buy herself some jewelry. She specifically recounted an incident around February of 1998 where allegedly Dr. Le held a gun to her head after he overheard her, in a telephone conversation, say something about him to her girl friend. Her housekeeper, who witnessed this incident, also testified about it, as did her girl friend with whom she was having the telephone conversation. Ms. Nguyen also stated that on two different occasions, Dr. Le had cut his own hand when he broke glass objects while being violent, requiring stitches, which he performed himself. Ms. Nguyen admitted that she never called the police for any incident, nor did she get a restraining order, nor did she seek any other domestic violence protection. Nor were she or the children ever treated by a physician for any injuries resulting from these incidents.

The housekeeper, Song Le Nguyen, testified that she was a long time friend of Ms. Nguyen’s mother. She said that after Ms. Nguyen filed for divorce in 1999, Dr. Le fired her.

IfiMs. Nguyen’s adult niece, who tutored both children after the divorce, testified that prior to the divorce, it was her impression that Dr. Le was a “great father.”

Dr. Le was present and testified. He denied that the incident with the gun occurred. He denied that he ever struck Ms. Nguyen. He testified that at times, Ms. Nguyen would get mad for no reason, throw things, and at other times discipline the children by slapping them. He specifically denied ever having cut his hand and/or sewing it up himself, as Ms. Nguyen claimed. He said that she alienated his family and friends because she did not like them.

Dr. Le testified that after the divorce, he worked in Vietnam doing charity work for the Vietnam Red Cross and Operation Smile. Dr. Le . testified that the last time he had seen the children was in August of 2002. He claimed that he could not see them because Ms. Nguyen would not tell him where they were living, and had changed her phone number several times (which Ms. Nguyen denied). At the time of the hearing, Dr. Le stated that he was living in Hammond, Louisiana, having purchased a dental practice there in January of 2004. He testified that Ms. Nguyen and her family even obstructed his ability to talk to the children on the telephone.

Ms. Nguyen testified that Dr. Le never acted violently towards the children. Ms. Nguyen admitted that in 2001, after the alleged violence against her and after the parties’ divorce, she allowed the children to five with Dr. Le in Vietnam for approximately 11 months. After the children came back from Vietnam, she testified that they told her about an incident there where Dr. Le beat them for no reason, stopping only when his friend intervened. This news concerned her greatly, she said. Yet she admitted that in the summer of 2003, she had the children packed and ready to accompany Dr. Le on a month-long trip to California to visit his relatives there. The trip never materialized, however. The children |7were very sad and disappointed when Dr. Le did not pick them up and take them on the trip, she said.

Following testimony at this motion hearing, the court engaged in extensive discussion with both counsel on the merits of Ms. Nguyen’s Motion. The court described the “clear and convincing” standard of C.C. art. 132, to which counsel for Ms. Nguyen agreed. The applicability of R.S. 9:361 et seq was never briefed nor argued, so the trial court did not make a determination of whether it applied.

We find that the Post-Separation Family Violence Relief Act cannot be plead for the first time on appeal, as it requires the trial court to make a specific determination of “a history of perpetration of family violence.”

In an abundance of caution, we further find that Ms. Nguyen failed to prove the “history of perpetration of family violence.” The statute requires a finding that “one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence.” Ms. Nguyen related one incident that was corroborated by her housekeeper, but where she did not receive injury. Ms. Nguyen never witnessed Dr. Le acting violently towards the children, nor did she ever receive injury herself in any of the other uncorroborated incidents. She claimed that he cut himself twice requiring stitches, but he denied it. Ms. Nguyen admitted that she never called police nor sought a restraining order against Dr. Le. Her other descriptions of being choked were vague.

In Michelli v. Michelli, 93-2128 (La. App. 1 Cir. 5/5/95), 655 So.2d 1342, the court found proof of eight incidences of family violence. Mrs. Michelli’s testimony was corroborated by the testimony of independent witnesses and police reports in most of the incidents; additionally, Mrs. Michelli had sought the help of a battered women’s shelter at least once. The court found that this evidence fulfilled Mrs. Mi-chelli’s burden of proof of family violence that the application of |sR.S. 9:361 et seq. was mandatory. See also Simmons v. Simmons, 26,414 (La.App. 2 Cir. 1/25/95), 649 So.2d 799 (one incident does not constitute a “history” of family violence; the serious consequences of the presumption, the curtailment of parental rights, militates against an expansive interpretation of the statute.)

In the context of this custody determination, it is noteworthy that Ms. Nguyen willingly permitted the children to live with Dr. Le in Vietnam for a lengthy period of time, after the alleged violence towards her during the marriage, and again would have willingly allowed them to accompany Dr. Le to California for a month in 2003, after he allegedly beat them while they lived together in Vietnam in 2001. It appears that Ms. Nguyen’s primary reasons for wanting sole custody are reflected in her motion, wherein she stated that Dr. Le’s whereabouts were seldom known to her, he led a secret life, which he refused to reveal, that he had little contact with the children, and, as she stated in her appellate brief, the parties could not communicate.

C.C. art. 132 states that if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. The trial court specifically found that Ms. Nguyen had not rebutted the presumption in favor of joint custody by clear and convincing evidence. We find no manifest error in this ruling. A trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Martin v. Martin, 36,860 (La.App. 2 Cir. 12/11/02), 833 So.2d 1216.

Both parties were present for the hearing and testified before the court. The parties’ testimonies did show that the parties had a lack of communication with each other, but neither party related any specific instance where they disagreed regarding parenting decisions. The record showed that Dr. Le had been largely |aabsent from Ms. Nguyen and the children’s lives since July of 2002, which Dr. Le blamed on obstructionist behavior by Ms. Nguyen, which she denied.

The record showed that at various times since the divorce, Dr. Le had lived in Vietnam for long periods of time, including the 11 month period when the children lived with him. At the time of the hearing, Dr. Le was living in Hammond, Louisiana, rather than Vietnam, and desired joint custody of the children. Despite the fact that Ms. Nguyen alleges that Dr. Le has had a secret life since the divorce, this has not deterred her from allowing the children to spend large amounts of time with him unsupervised. Ms. Nguyen did not present any specific evidence regarding the children’s best interests or the factors listed in LSA-C.C. art. 134, which are an illustrative list designed to aid the court in making a custody determination.

Accordingly, we affirm the ruling of the trial court.

AFFIRMED.

      . A note from the Domestic Commissioner shows that he considered Dr. Le's motion to be a response to Ms. Nguyen's request for sole custody.

      . This Rule charged that Dr. Le violated the standard reciprocal injunction found in the divorce proceedings. After a hearing on the Rule for Contempt, Dr. Le was found in contempt for taking some personal items of Ms. Nguyen from the family home, and for feigning a parental kidnapping of the children. Dr. Le was not present at the hearing; it was alleged that he was in Vietnam at the time. Three months after this judgment, Ms. Nguyen allowed the children to live in Vietnam with Dr. Le.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Donald D. RAGAS.
    No. 07-KA-3.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Christopher J. Cox, II, Trial Counsel Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Donald D. Ragas # 481685, Kinder, LA, pro se.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ¡The Defendant, Donald D. Ragas, appeals from his conviction for armed robbery, a violation of La.R.S. 14:64, and his sentence of 30 years at hard labor. We affirm.

The Defendant was charged with the crime in December of 2003. He pleaded not guilty, was tried in March of 2004, and found guilty by a jury. The Defendant’s motion for post-verdict judgment of acquittal and motion for new trial were denied in April of 2004. On the same day, the Defendant waived sentencing delays. He was thereafter sentenced to imprisonment at hard labor for 30 years.

FACTS

On August 23, 2003, at approximately 4:00 a.m., Tiffany Gilmore, a shift manager at a McDonalds restaurant in Marrero, Louisiana, and a co-worker were engaged with their duties when an individual wearing black clothing climbed pthrough the drive-through window into the restaurant. According to Gilmore, the individual had a black mask over his face and was holding a black bag. Gilmore and her co-worker ducked down, and the individual walked throughout the restaurant.

When Gilmore heard the individual call for the manager in a “funny type of voice,” she got up and walked towards him. While holding a black bag over his hand, the man ordered Gilmore to open the safe located behind the work area, and leave. Gilmore automatically assumed there was a gun in the black bag due to the way the individual held the bag over his hand and pointed it at her. She opened the bottom part of the safe, which had two compartments. Gilmore testified that she was scared, nervous, and shaking.

A few minutes later, the individual ordered' Gilmore to open the top part of the safe, which she explained was the place where they usually kept their deposits from the day before. Gilmore complied with that request as well. When he was finished, he instructed Gilmore to open the locked back door. After he left the premises, she locked the door and called the police. When they arrived, Gilmore advised them of what had occurred. She then started moving the cash drawers to put them back in the safe. As she did so, she, Deputy Scott Davis of the Jefferson Parish Sheriffs Office (JPSO), and others present noticed a gun lying in front of the safe. Gilmore testified that the gun was not there before the robbery.

Gilmore could not identify the individual who robbed the restaurant because he was wearing a mask, and she did not recognize the voice. A surveillance camera recorded the events of that morning, and the recording was played for the jury.

JPSO Deputy Steven Wilson testified that two days later, on August 25, 2003, Arie Hayes, the Defendant’s wife, reported that her gun had been stolen |4from her vehicle on August 23, 2003, the day of the robbery. Hayes told him that the stolen weapon was a Hi-Point 9mm, black steel handgun, model number GI1084, and serial number P024337. Deputy Wilson identified the gun found at the crime scene as the stolen weapon.

JPSO Detective Dax Russo testified that the gun trace report showed Hayes as the last registered owner of the gun found at the crime scene. Detective Russo interviewed Hayes in October of 2003. During the interview, Hayes admitted that the Defendant forced her to falsely report the gun stolen. She also admitted that a week after she reported the theft, the Defendant told her he committed the robbery.

The Defendant was subsequently taken to the detective bureau for questioning. Detective Russo and his partner, Detective Jeff Rodrigue, advised the Defendant of his rights. They obtained two statements from him.

In the Defendant’s first statement, he admitted committing the armed robbery. He said that he left a strip club at approximately 2:00 a.m., picked up his daughter, and took her home. Afterwards, he went back to the club. He claimed he was with a man named Benny and another man. The Defendant stated that they left the club a second time, picked up his wife at another club at approximately 5:00 a.m., and took her home.

The Defendant then retrieved his car where it had been parked. He went home afterward, and changed into dark colored pants and a dark colored shirt. He also got a dark colored stocking cap that he used to cover his face and a royal blue hat. The Defendant then went to the Mc-Donalds restaurant where he worked as a manager. He parked a block away and entered the restaurant through the drive-through window. The Defendant told Gilmore to open the safe. He had a gym bag in his hand at the time. The Defendant removed approximately $2,000.00 from the |Rsafe, putting the money in the bag. Af-terwards, he left through the back door and went home. He threw away the clothes he wore and the bag he carried in a trash can near the scene of the crime. The Defendant initially denied having a gun when he entered the restaurant, but he later admitted that he left the gun in the restaurant.

JPSO Sergeant Larry Dyess took another statement from the Defendant in order to obtain additional information regarding the identities of the men the Defendant claimed he was with the morning of the robbery.

In his second statement, the Defendant again admitted that he committed the robbery, that he used a gun, and that he left the weapon at the scene. The Defendant again stated he was with Benny that morning, and that he asked Benny to ride with him to the restaurant so he could rob it. He said that Benny laughed, believing it was a joke. The two men, plus another man named Red, were in his car. The defendant was the driver.

After the Defendant left the restaurant, he ran to the car. Benny was then driving and they slowly pulled off. When the Defendant told Benny that he committed the robbery, Benny did not believe him. Nevertheless, the Defendant said he gave Benny $400.00. He did not give Red anything, because he did not know him well. He reiterated that he forgot to leave with the gun.

At trial, the Defendant denied he robbed the store. He testified he had worked at McDonalds for 16 years, was a manager for 12 or 13 years, and worked for one and one-half years at that particular restaurant. The Defendant was 37 years old, married with four children, and had never been in trouble with the law in the past.

The Defendant testified that he told the police he had taken the gun to work many times. He kept it in the safe or in his brief case. He admitted he was not | (¡supposed to bring a gun to work; but he further explained that the restaurant had been robbed before, that he had also been threatened in the past, and that he did not feel • safe when making deposits at the bank.

The Defendant claimed that the detectives threatened to beat him up, and coerced him into making a statement. He said that the detectives told him they were going to send his wife to prison, send him to prison for 99 years, and charge him with unsolved robberies. He asserted they also told him that he and his wife would lose their jobs. The Defendant said that the detectives were mean, scared him, and caused him to say things that were not true. He said he fabricated the story about Benny and Red. Although he insisted that the detectives threatened him, he admitted that, at the end of his statement, he told the detectives he had been treated okay.

Detective Rodrigue denied coercing or threatening the Defendant in any way in return for the statement. He further denied promising the Defendant anything.

As manager of McDonalds, the Defendant’s net pay was $800.00 or $900.00 every two weeks. The Defendant admitted he was behind on his bills.

ASSIGNMENTS OF ERROR

On appeal, the Defendant’s appellate counsel asserts that the evidence was insufficient to support the verdict and that the sentence is excessive. He requests an error patent review.

The Defendant filed a pro se brief. He asserts that he received ineffective assistance of counsel because counsel failed to contemporaneously object to inadequate jury instructions on the responsive verdict of simple robbery. He further asserts that the trial judge erred in admitting his inculpatory statement because it was obtained through coercive methods.

\ .INSUFFICIENT EVIDENCE

The Defendant contends that he should have been convicted of first degree robbery, not armed robbery, because the victim did not see a gun in the possession of the perpetrator, nor did the perpetrator ever mention a gun or threaten to use a gun. He further contends that there was no evidence that any weapon was in the bag at anytime during the robbery. After our review, we find the evidence sufficient to convict.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence is sufficient if the conviction was based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Polizzi, 05-478, p. 9 (La.App. 5th Cir.2/14/06), 924 So.2d 303, 310.

To support a conviction for armed robbery, the state must prove beyond a reasonable doubt (1) a taking (2) of anything of value (3) from the person of another (4) by use of force or intimidation (5) while armed with a dangerous weapon. La.R.S. 14:64(A).

La.R.S. 14:2(3) defines “dangerous weapon” to include “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or | ^likely to produce death or great bodily harm.” The term “dangerous weapon” is not limited to those instrumentalities which are inherently dangerous, but includes any instrumentality which in the manner used, is calculated or likely to produce death or great bodily harm. State v. Bonier, 367 So.2d 824, 826 (La.1979); State v. Cotton, 94-384, p. 2 (La.App. 5th Cir.11/16/94), 646 So.2d 1144, 1145.

In Cotton, 94-384 at 3, 646 So.2d at 1146, we held, “Simply because the victim did not see a dangerous weapon does not preclude an armed robbery conviction. When defendant creates an atmosphere of intimidation prompting the victim to reasonably react with fear for his life, an armed robbery conviction is justified.” See also: State v. Johnson, 04-614, p. 7 (La.App. 5th Cir.11/16/04), 890 So.2d 19, 24.

The “dangerousness” of the instrumentality by reason of the manner in which it is used is a question of fact for the jury to decide. Cotton, 94-384 at 2, 646 So.2d at 1146. However, no weapon need ever be seen by the victim, or witnesses, or recovered by the police for the trier of fact to be justified in finding that in fact the defendant was armed with a dangerous weapon. State v. Elam, 312 So.2d 318, 322 (La.1975).

In the instant case, the evidence was sufficient for the jury to conclude that the Defendant was armed with a dangerous weapon. Gilmore testified the Defendant had a bag over his hand pointing at her when he ordered her to open the safe. She automatically assumed there was a gun in the bag because of the way the Defendant was holding it. She did exactly what he wanted because she was scared, nervous, and shaking. The Defendant clearly created an “atmosphere of intimidation.” Additionally, the Defendant’s wife’s gun was found in front of the safe. It was not there prior to the robbery. Finally, the Defendant admitted in his statement that he left the gun in the restaurant after the robbery.

[flAlthough the Defendant denied committing the crime at trial, and claimed that the detectives threatened and coerced him into giving an untrue statement, the jury made a credibility determination. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Deruise, 98-0541, p. 26 (La.4/3/01), 802 So.2d 1224, 1243, cert. denied, 534 U.S. 926, 122 S.Ct. 288, 151 L.Ed.2d 208 (2001). It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Bates, 03-352, p. 7 (La. App. 5th Cir.7/29/03), 853 So.2d 71, 75; writ denied, 03-2565 (La.2/6/04), 865 So.2d 740.

After our review, we find that the conviction was based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of armed robbery beyond a reasonable doubt. See: Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

EXCESSIVE SENTENCE

The Defendant contends that the trial judge failed to consider the mitigating factors applicable to him, including his stable employment history, and the fact that he is a 37 year old married man and father of four children. He is also a first offender, and claims there is virtually no likelihood that he will ever re-offend. He was a manager at the time, and had worked for the company for more than ten years. In a colloquy between the judge and counsel, the Defendant’s attorney explained the Defendant kept the gun at the store because he was the manager and used it for protection when making deposits. He submits that the minimum 10-year sentence is warranted in this case. We find no error in the 30 year sentence.

The trial judge stated:

I conclude or I reach that sentencing decision because I feel that the offense was so serious. I do believe that the defendant was armed. I don’t have any doubt about that, and all things considered, some of Imthe things that were argued I don’t think mitigate — some of them, I believe work against him. I just don’t feel that somebody who is the manager of a' McDonalds gets a benefit for making that claim when they come back and perpetrate an armed robbery.

(R., p. 384).

The Defendant did not file a motion to reconsider sentence in the trial court below, nor did he object at the time of sentencing as required by La.C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. State v. Dupre, 03-256, p. 7 (La.App. 5th Cir.5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La. 1992). Even though a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. Smith, 01-2574 at 6, 839 So.2d at 4.

The trial judge is afforded wide discretion in determining a sentence and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence. Polizzi, 05-478 at 16, 924 So.2d at 313. The issue on appeal is whether l^the trial court abused its discretion, not whether another sentence might have been more appropriate. Polizzi, 05-478 at 17, 924 So.2d at 314.

The sentencing range for armed robbery is 10 to 99 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64 B. In State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court found a sentence within the thirty-five to fifty-year range acceptable for first offenders convicted of armed robbery. See also, State v. Wickem, 99-1261, p. 10 (La.App. 5th Cir.4/12/00), 759 So.2d 961, 964, 969, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839 (25 years); State v. Hartwell, 03-1214, p. 12 (La.App. 5th Cir.1/27/04), 866 So.2d 899, 901-902, 907, writ denied, 04-0448 (La.6/25/04), 876 So.2d 832 (35 years).

In the instant case, we find that the 30-year sentence is not constitutionally excessive. Defendant placed the lives of several people he worked with on a daily basis in jeopardy when he robbed his own place of employment with a gun. Additionally, the 30-year sentence is far less than one-half the maximum possible sentence, and the jurisprudence supports the sentence imposed.

INEFFECTIVE COUNSEL

In his pro se brief, the Defendant argues that he received ineffective assistance of counsel because his attorney failed to object to the trial judge’s erroneous jury charge regarding the lesser included offense of simple robbery. We find no error in this regard.

The record indicates that the following jury charge regarding simple robbery was given to the jury:

A further responsive verdict to the charge of Armed Robbery is Simple Robbery.
Simple Robbery is the taking of anything of value belonging to another from the person of another or which is in the immediate | ^control of another when the offender uses force or intimidation, but not armed with a dangerous weapon.
Simple Robbery requires general criminal intent.
Anything of value and general criminal intent retain their earlier definitions.
Thus, in order to convict the defendant of Simple Robbery, you must find, beyond a reasonable doubt:
(1) that the defendant intentionally took something of value belonging to another; and
(2) that the thing of value taken was in the possession of or in the immediate control of the victim when it was taken; and
(3) that the defendant used force or intimidation against the victim in order to accomplish the taking, but not while armed with a dangerous weapon.

(R., pp. 79-80) [Emphasis added.]

The record shows that the phrases “but not armed with a dangerous weapon” and “but not while armed with a dangerous weapon” were handwritten as opposed to the remainder of the charge which was typewritten. The Defendant argues that the handwritten phrases were added after the trial judge gave the instructions to the jury, and the record does not indicate that the trial judge, the State, or the defense attorney convened to amend the instructions to reflect that phrase.

The defense counsel did not request the transcript of the trial judge’s instructions as he read to the jury. However, the written jury charges are contained in the record.

La.R.S. 14:65 A states that “Simple robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.”

|13The record does not support the Defendant’s allegation that the jury charge was modified after it was given to the jury. The minute entry does not state that the amendment was made after the jury was charged, and there is no notation to that effect by the court reporter. Therefore, the Defendant’s assertion that it was changed to fit the statute is speculation. Since the written charge recites the provisions of the statute, we conclude that counsel was not ineffective for failing to object to the charge.

INADMISSIBLE STATEMENT

The Defendant argues that the trial court erred in denying his motion to suppress his statement because the detectives coerced him into giving the statement and, therefore, the statement was involuntary. We decline to address this issue.

The Defendant filed a motion to suppress the confession prior to trial. In the motion, he argued that his constitutional rights were violated because his confession was unlawfully and illegally obtained. The trial judge denied the motion as moot, without a hearing, noting that the Defendant alleged only vague and general conclusions and not facts specific to this case.

The record shows that the Defendant did not argue in his motion to suppress that his confession was involuntary because it was coerced. He raises this issue for the first time on appeal. However, the Defendant is limited on appeal to the grounds articulated at trial. A new basis, even if meritorious, cannot be raised for the first time in this Court. State v. Merritt, 04-204, p. 6 (La.App. 5th Cir.6/29/04), 877 So.2d 1079, 1082, writ denied, 2004-1849 (La.11/24/04), 888 So.2d 228. Thus, we will not address this assignment of error.

1, ¿PATENT ERROR

The record was reviewed for patent errors in accordance with La.C.Cr.P. art. 920. State v. Oliveaux, 812 So.2d 337, 338 (La.1975); Palizzi 05-478 at 18, 924 So.2d at 315. We find no patent errors requiring correction.

DECREE

Accordingly, the Defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . The Defendant’s wife was charged with accessory after the fact.

      . Both audio taped statements were played for the jury.

      . La.R.S. 14:64.1 A states:
      A. First degree robbery is the taking of anything of value belonging to another from the person of another by the use of force or
      intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.

      . La.R.S. 14:64 states:
      A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

      . As the State noted in its brief, the trial judge failed to impose the sentence without benefit of parole, probation, or suspension of sentence as required by La.R.S. 14:64 B. However, no corrective action is necessary, because the sentence is deemed to contain those restrictions under La.R.S. 15:301.1 and State v. Williams, 00-1725, p. 14 (La. 11/28/01), 800 So.2d 790, 801. See also: State v. Mourra, 06-133 (La.App. 5th Cir.8/29/06), 940 So.2d 29, 33, ftn. 5.


author: KIRBY, Judge.

text:
    Alan KESTER v. ZAPATA GULF PACIFIC, L.L.C. and L & M Botruc Rental, Inc.
    No. 2006-CA-0973.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2007.

      Wm. Ryan Acomb, Laurie L. Deaxmond, Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for L & M Botruc Rental, Inc.
    James K. Carroll, Stephanie D. Skinner, Fowler Rodriguez, New Orleans, LA, for Zapata Gulf Pacific, L.L.C.
    Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS Jr.
   KIRBY, Judge.

h Zapata Gulf Pacific, LLC (“Zapata”) appeals the trial court judgment in favor of L & M Bo-Truc Rental, Inc. (“Bo-Truc”), awarding reimbursement to Bo-Truc for maintenance and cure payments made by Bo-Truc to or on behalf of its employee, Alan Kester.

In this Jones Act case, plaintiff, Mr. Kester, was injured while aboard the M/V Midway Tide while in the course and scope of his employment with Bo-Truc. Zapata was the owner of the MTV Midway Tide. Plaintiff filed suit against Zapata and Bo-Truc. Bo-Truc filed a reconventional demand against Mr. Kester. Bo-Truc also filed a cross-claim against Zapata, seeking reimbursement for the maintenance and cure payments made to or on behalf of Mr. Kester. Mr. Kester settled his claims with Zapata and Bo-Truc prior to trial. Following trial, the trial court awarded Bo-Truc reimbursement from Zapata for maintenance and cure payments in the amount of $51,359.12, plus judicial interest from date of demand. 'Zapata -now appeals.

|gOn appeal, Zapata first argues that the trial court failed to apply the correct standard of law in holding that Bo-Truc was entitled to reimbursement for payments it made after Mr. Kester reached maximum medical improvement. Zapata further argues that in failing to apply the correct standard of law, the trial court improperly shbstituted its own opinion in lieu of the only expert medical evidence in the record regarding maximum medical improvement.

Zapata does not contest that it must reimburse Bo-Truc for the maintenance and cure expenses Bo-Truc paid before Mr. Kester reached maximum medical improvement, and which are directly related to the accident for which recovery is sought from Zapata. However, Zapata argues that an employer is not entitled to reimbursement from a third party for voluntary payments made beyond its legal obligation to pay maintenance and cure.

Maintenance and cure extends to the time an injured seaman reaches maximum medical recovery. Butler v. Zapata Haynie Corporation, 92-71 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274, 1283, writ granted in part, judgment amended on other grounds, 94-1171 (La.7/5/94), 639 So.2d 1186. Citing the case of Pelotto v. L & N Towing Company, 604 F.2d 396, 400 (5th Cir.1979), the Butler court stated the definition of maximum medical recovery as follows:

Maximum medical recovery ... is achieved when it appears probable that further treatment will result in no betterment of the seaman’s condition .... Thus, where it appears that the seaman’s condition is incurable, or that future medical treatment will merely relieve pain and suffering, but not otherwise improve the seaman’s physical condition, it is proper to declare that the point of ^máximum cure -. has been achieved. (Emphasis in original).

Butler v. Zapata Haynie Corporation, 633 So.2d at 1283.

The record reveals that Bo-Truc paid Mr. Kester’s maintenance and cure expenses from the time of his accident until August 1, 2002. Dr. Kurt Krueger, a specialist in anesthesiology and pain management, treated Mr. Kester following his accident. Dr. Krueger stated in a medical report and in his deposition that Mr. Kes-ter reached maximum medical improvement as of October 24, 2001. Mr. Kester also received treatment from Dr. M.L. Woodruff, a chiropractor. Dr. Woodruff was not deposed, but stated in a medical report that Mr. Kester reached maximum medical improvement as of December 3, 2001. Mr. Kester continued receiving treatment from both Dr. Krueger and Dr. Woodruff after the dates that he was found by each to have reached maximum medical improvement.

In reasons for judgment, the trial court noted that Mr. Kester continued to receive treatment from Dr. Woodruff until July 25, 2002. The court stated that plaintiff complained of neck pain and stiffness in his back on each visit, and improved after each treatment. The court found that even though Dr. Krueger determined that Mr. Kester had reached maximum medical improvement as of October 24, 2001, Bo-Truc was reasonable to continue paying maintenance and cure to Mr. Kester after that date based on the fact that Dr. Wood-ruff continued to treat him and report improvements.

In Dr. Woodruffs medical reports of treatment'Mr. Kester received following December 3, 2001, he noted that Mr. Kes-ter continued to complain of |4neck and back pain at each visit, and that his symptoms decreased following each treatment. However, Dr. Woodruff never retracted his earlier statement in his report, which was repeated in correspondence of December 12, 2001, that Mr. Kester reached maximum medical improvement as of December 3, 2001. Bo-Truc did not offer the testimony or records of any other medical expert to rebut the statements by Dr. Krueger and Dr. Woodruff that Mr. Kes-ter had reached maximum medical improvement. Based on the evidence in the record, the latest possible date that Bo-Truc was obligated to pay maintenance and cure expenses for Mr. Kester was December 3, 2001. In the absence of any medical evidence rebutting the statements of Dr. Krueger and Dr. Woodruff regarding the date of maximum medical improvement, we find that the trial court erred in holding Zapata liable to Bo-Truc for maintenance and cure payments made after December 3, 2001, and we will amend the trial court judgment accordingly.

In the second assignment of error, Zapata argues that the trial court erred in holding Zapata liable to Bo-Truc for payments made for Mr. Kester’s eye care treatment. Zapata claims that Bo-Truc did not carry its burden of proving that the eye care expenses were causally related to the accident at issue.

In making its claim for reimbursement against Zapata, Bo-Truc introduced into evidence a printout that included payments made on behalf of Mr. Kester that were allegedly for maintenance and cure. Included in this printout were payments made to Dr. Ronald Landry at Eye Care Associates in the amount of $3,680.00. Although the trial court did not make a specific reference to the eye care expenses | sin reasons for judgment, the court found Zapata liable to Bo-Truc for the entire amount claimed by Bo-Truc for maintenance and cure. In response to Zapata’s argument regarding the eye care expenses, Bo-Truc does not challenge Zapata’s claim that no causal connection to the accident was proven, but rather argues that Zapata waived its right to object to the inclusion of the eye care expenses because no objection was offered at trial to the maintenance and cure payment records.

We find merit in Zapata’s argument that the introduction of the maintenance and cure payment records without objection did not relieve Bo-Truc of its burden of proving that the expenses claimed were necessitated by the accident at issue. It is undisputed that Bo-Truc made the maintenance and cure payments on behalf of Mr. Kester as alleged in its printout. However, in addition to introducing evidence of maintenance and cure payments made on behalf of Mr. Kester, Bo-Truc had to prove a causal connection between the accident and those payments in order to prevail in its claim for indemnification from Zapata.

An innocent employer is entitled to indemnification from a negligent third party for payments made to an employee injured as a result of the third party’s negligence. Savoie v. Lafourche Boat Rentals, Inc., 627 F.2d 722, 723-24 (5th Cir.1980). (Emphasis ours). As the plaintiff in this indemnification claim, Bo-Truc had the burden of proving every essential element of its case, including causation, by a preponderance of the evidence. Matthews v. Breaux, 2004-0958, p. 6 (La.App. 5 Cir. 2/15/05), 896 So.2d 1146, 1150. Although Bo-Truc presented medical evidence establishing that maintenance and cure payments made on behalf of Mr. | fester for his neck and back injuries from the date of the accident through December 3, 2001 were causally connected to the accident at issue, no evidence was presented by Bo-Truc to establish a causal connection between the accident and Mr. Kester’s eye care expenses.' Therefore, we find that the trial court erred in holding Zapata liable for payments made by Bo-Truc for Mr. Kester’s eye care expenses, and we will amend the judgment accordingly.

For the reasons stated above, the trial court judgment is amended to eliminate the amounts awarded to Bo-Truc for eye care expenses, and for maintenance and cure payments made beyond December 3, 2001, the date established in the record as the date that Mr. Kester reached maximum medical improvement for his neck and back injuries. The trial court judgment in favor of Bo-Truc and against Zapata is reduced from $51,359.12 to $27,899.28 (See appendix.) In all other respects, the trial court judgment is affirmed.

AMENDED AND, AS AMENDED, AFFIRMED.

^APPENDIX

DATE PAYEE AMOUNT

5-11-01 Alan Kester 465.00

5-17-01 Alan Kester 195.00

6-1-01 Alan Kester 450.00

7-20-01 Lafourche Orthopedic 651.00

'7-20-01 Dr. Michael Haydel 759.00

7-26-01 Dr. Michael Haydel 837.00

7-26-01 Houma Orthopedic 50.00

7-26-01 Physicians Surgical ■ 632.90

8-6-01 Physicians Surgical 629.36

8-6-01 Dr. Michael Haydel 837.00

8-17-01 Alan Kester 930.00

8-17-01 Houma Orthopedic 50.00

8-17-01 Physicians Surgical 637.07

9-1-01 Alan Kester 450.00

9-11-01 Dr. Michael Haydel 78.00

9-11-01 Dr. M.L. Woodruff 509.00

9-17-01 Apollo Enterprises 248.77

9-17-01 Dr. M.L. Woodruff 780.00

9-26-01 W. Fla. Regional Med._1,924.00

|¾9-26-01_Dr. M.L, Woodruff_360.00

10-1-01_MASH, Inc._39.00

10-1-01_Alan Kester_465.00

10-9-01_Apollo Enterprises_171,32

10-9-01 N. Fla. Surgery Ctr._1,590.00

10-9-01 Comprehensive Pain Med._175.00

10-9-01 Dr. M.L. Woodruff_225.00

10-11-01 Dr. M.L. Woodruff_84.00

10-18-01 N. Fla. Surgery Ctr._1,590.00

10-30-01_MASH, Inc._439.50

10-30-01_Apollo Enterprises_18.35

10-30-01 Dr. M.L. Woodruff_890.00

11-1-01_Alan Kester_■_750.00

11-13-01 Dr. M.L. Woodruff_405.00

11-13-01 Comprehensive Pain Med._2,000.00

11-20-01_Apollo Enterprises_185.66

11-20-01 Comprehensive Pain Med._75.00

11-20-01 Dr. M.L, Woodruff_405.00

12-1-01 Alan Kester 75.00

|aThe following checks were issued after December 3, 2001, but represent payment for services rendered prior to that date:

12-10-01 Comprehensive Pain Med._1,075.00

12-10-01_N. Fla. Surgery Ctr._1,590.00

12-10-01 Dr, M.L. Woodruff_470.00

12-18-01 Dr. M.L, Woodruff_600.00

12-26-01 Dr, M.L. Woodruff_345.00

12-26-01_Apollo Enterprises_18.35

1-10-02 Dr, M.L. Woodruff_600.00

1-17-02 Dr, M.L. Woodruff_210,00

2-5-02 Dr. M.L, Woodruff_195.00

2-7-02_Sacred Heart Hosp._615.00

2-7-02 Dr. M.L. Woodruff_1,125.00

TOTAL$27,899.28

      . This figure does not include payments made to Dr. Ronald Landry at Eye Care Associates. It also does not include payments made to or on behalf of Mr. Kester for maintenance or medical expenses incurred after December 3, 2001. However, some checks issued after December 3, 2001 represented payment for services rendered prior to that date, and those amounts are included in this figure.