author: COOKS, Judge. GREMILLION, Judge,

text:
    Theodore E. FILIPSKI, III v. IMPERIAL FIRE & CASUALTY INSURANCE COMPANY, et al.
    No. CW 08M31.
    Court of Appeal of Louisiana, Third Circuit.
    April 8, 2009.

      Matthew D. Henrich, Lake Charles, LA, for Plaintiff/Appellee, Theodore E. Filip-ski, III.
    Paul D. Oberle, Jr., Richie, Richie & Oberle, L.L.P., Shreveport, LA, for Defendant-Appellant, Imperial Fire & Casualty Insurance Company.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

| xThis is an action for damages allegedly sustained as a result of a motor vehicle accident which occurred February 16, 2002, involving a 1997 Chevrolet pickup truck owned and operated by Theodore E. Filipski, III. Mr. Filipski suffered injmies as a result of the accident and brought this personal injury suit.

At the time of the occurrence of the accident, Imperial Fire & Casualty Insurance Company had in full force and effect a policy of automobile liability insurance issued to Mr. Filipski. Approximately three months prior to the accident, Mr. Filipski purchased the 1997 Chevrolet pickup truck from a dealership. As part of the financing agreement, the dealership required Mr. Filipski to purchase uninsured motorist coverage. To comply with this demand, Mr. Filipski purchased the insurance policy at issue from Imperial Fire.

The day the policy was issued, Mr. Filip-ski signed a waiver excluding his mother and his daughter from the policy. Approximately one month after issuance of the policy, Imperial Fire contacted Mr. Filip-ski to have him sign a waiver excluding himself as a driver of the vehicle. According to Mr. Filipski, Imperial Fire informed him he was required to sign the waiver. He also asserted the exclusion did not address uninsured motorist coverage, and only applied to liability coverage. To the contrary, Imperial Fire argues Mr. Filip-ski signed the waiver in order to procure a reduced premium. Mr. Filipski denied receiving any reduced premium.

Imperial Fire filed a Motion for Summary Judgment contending no coverage existed for Mr. Filipski because of the signed exclusion. The trial court granted the summary judgment in part and denied it in part. The motion was granted “as it pertain[ed] to the validity of the exclusion with respect to any liability claims being asserted therein.” However, the trial court denied the motion “as it pertain[ed] to the launinsured/underinsured motorist claim which may be asserted by Theodore Filipski.”

Imperial Fire filed for writs with this Court contending there was no authority for the trial court’s finding that the exclusion did not apply to any uninsured/under-insured claim asserted by Mr. Filipski. This Court denied writs. Thereafter, Imperial Fire sought a Writ of Certiorari with the Louisiana Supreme Court. The Supreme Court issued an Order granting the writ and remanding this matter back to this Court for briefing, argument and opinion. For the following reasons, we find no error in the trial court’s ruling on the motions for summary judgment and deny the application for supervisory writs.

ANALYSIS

Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(B). Louisiana Code of Civil Procedure Article 966 provides the standard for considering motions for summary judgment. Specifically, La. Code Civ.P. art. 966(C) provides:

(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The burden to show that no material issues of fact exist remains with the |3movant, but this burden shifts to the adverse party once the movant has made a prima facie showing that the motion should be granted. Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41. However, “[i]f qualifying evidence is submitted in opposition to a motion for summary judgment which creates a dispute as to a genuine issue of material fact, the motion for summary judgment should be denied.” Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 19 (La.2/29/00), 755 So.2d 226, 237.

Imperial Fire notes that on January 9, 2002, Mr. Filipski executed an Exclusion of Named Driver Endorsement, agreeing that “no coverage shall be afforded while the insured vehicle is being driven by Theodore Filipski, III.” The trial court found, by the clear terms of the exclusion, no liability coverage was available to Mr. Filipski. This conclusion is not disputed by the parties. The question that arises in this case is whether the exclusion applies to UM coverage. The trial court found it did not. We agree.

Imperial Fire cites the case of Joseph v. Dickerson, 99-1046 (La.1/19/00), 754 So.2d 912, in support of its argument. In Dickerson, the issue was whether the court of appeal was correct in finding Judith Dickerson liable because she loaned her car to her daughter, whose negligence caused the accident, knowing her daughter was an excluded driver under her policy. The supreme court noted it had to determine whether the named driver exclusion endorsement was applicable in light of the statutory requirements applicable to the omnibus coverage as provided in La.R.S. 32:861 and La.R.S. 32:900. The Dickerson court noted in 1990, the Louisiana ^Legislature added subsection (L), which is an exception to the general rule of omnibus coverage provided in La.R.S. 32:861, and permits a named insurer to exclude from coverage a resident of the same household. The court explained the “purpose of this provision is to allow the named insured the option of paying a reduced premium in exchange for insurance that affords no coverage while a covered vehicle is operated by the excluded driver.” Finding the purpose of the exclusion was to provide an opportunity for reduced premiums and that her daughter did reside in the same household, the court upheld the exclusion as it pertained to liability coverage for the accident.

We note that in Dickerson, the Supreme Court was not called upon to address the issue before us — that is whether the exclusion also applies to UM coverage. Further, the waiver clearly makes no specific reference to UM coverage being excluded. Louisiana historically has maintained a strong public policy in favor of UM coverage. Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987). UM insurance is designed to provide full recovery for victims of automobile accidents who suffer damages caused by a tortfeasor who is not adequately covered by liability insurance. Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544.

Under the provisions of former La.R.S. 22:1406(D) (amended and redesig-nated by 2003 La. Acts, No. 456 as La.R.S. 22:680), UM coverage is automatic; the parties’ intention is irrelevant. Degruise v. Houma Courier Newspaper Corp., 94-2886 (La.App. 1 Cir. 6/28/95), 657 So.2d 580, amended in part, reversed in part, on other grounds, 95-1863, pp. 7-8 (La.11/25/96), 683 So.2d 689. Public policy demands | .-dictate that UM coverage up to the policy’s limit, even if nowhere mentioned in the policy, be read into every insurance contract as if it were written on the face of the policy. Henson v. Safeco Insurance Companies, 585 So.2d 534 (La.1991); Dibos v. Bill Watson Ford, Inc., 622 So.2d 677 (La.App. 4 Cir.1993). As a result, “[ejvery automobile liability policy delivered or issued for delivery in this state is impliedly amended to include UM coverage, unless coverage is validly rejected.” Faucheaux v. Boston Old, Colony Ins. Co., 93-384, p. 5 (La.App. 5 Cir 3/16/94), 633 So.2d 959, 963, writ granted in part and denied in part, 94-1296 (La.9/30/94), 642 So.2d 858; see also Taylor v. Rowell, 98-2865 (La.5/18/99), 736 So.2d 812. UM coverage may be specifically rejected by the insured in the insurance contract, pursuant to statutory guidelines. However, any exception to the mandatory UM coverage is to be strictly construed. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992); Henson v. Safeco Insurance Companies, 585 So.2d 534.

The record indicates there was no specific rejection of UM coverage in the exclusion signed by Mr. Filipski. “[I]t is well settled that our uninsured motorist statute embodies public policy and, thus, any clause in a policy in derogation of the mandatory requirements set forth in the statute is invalid insofar as it conflicts with the statute.” Breaux v. Gov. Emp. Ins. Co., 369 So.2d 1335, 1337-38 (La.1979). Imperial Fire’s failure to comply with the statutorily mandated requirement for securing a valid rejection of UM coverage is not obfuscated by its success in securing a valid liability waiver. The language in Imperial Fire’s policy which arguably seeks to preclude “any and all” coverage of whatever type once a driver has been excluded is insufficient to satisfy the legislative demands for securing a valid UM rejection. Therefore, we find the trial court did not err in denying Imperial Fire’s motion for summary judgment as it pertained to any UM claims Mr. Filipski may file.

| «DECREE

For the foregoing reasons, finding no error in the trial court’s ruling on the motions for summary judgment, we deny the application for supervisory writs. All costs are assessed to Imperial Fire & Casualty Insurance Company.

WRIT DENIED.

GREMILLION, J., dissents in part and assigns written reasons.

GREMILLION, Judge,

dissents and assigns the following reasons.

hi respectfully dissent from the majority’s opinion and would reverse the trial court’s denial of Imperial Fire & Casualty Insurance Company’s summary judgment as it pertained to the uninsured/underin-sured motorist claims which may be asserted by Theodore Filipski.

There is no disagreement that the named driver endorsement executed by Mr. Filipski is valid and enforceable. However, the majority believes that the dispositive question is whether this endorsement operates to exclude Mr. Filipski from UM coverage. This is incorrect. Rather, the only important question here is whether the endorsement operates to exclude Mr. Filipski from liability coverage.

It is well-settled in our jurisprudence that the question of whether a policy provides liability coverage must be addressed first. Our supreme court in Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, as well as a number of cases applying Magnon, have concluded that “any determination of whether a plaintiff is entitled to UM benefits must follow a determination that the plaintiff is an insured for purposes of auto liability insurance coverage.” Id. at 196. Indeed, the UM statute itself limits the extension of UM benefits to only the “persons insured” under a given automobile liability policy. La.R.S. 22:680(l)(a)(i).

The majority commits most of its discussion to the strong public policy in favor of UM coverage and to the fact that no proper UM waiver was executed. As to the 12public policy in favor of UM coverage, it is clear that:

Although Louisiana public policy strongly favors UM coverage and the liberal construction of the UM statute, it is well settled that a person who does not qualify as a liability insured under a policy of insurance is not entitled to UM coverage under the policy.

Magnon, 739 So.2d at 196. Furthermore:

Whether UM coverage was offered or validly rejected is relevant only if the claimant has qualified as a liability insured ... Thus, the question of whether UM coverage was offered or validly rejected is not relevant here.

Grace v. Crespo, 07-397, p. 10 (La.App. 1 Cir. 9/19/07), 970 So.2d 1007, 1014, writ denied, 07-2010 (La.12/7/07), 969 So.2d 636 (citations omitted).

Finally, I note that it is also well-settled that UM coverage attaches to the person of the insured, not the vehicle. Howell v. Balboa Ins. Co., 564 So.2d 298 (La.1990). This is relevant here because we are dealing with a named driver exclusion. Specifically, the person of Theodore E. Filipski, III, was validly excluded from liability coverage under this Imperial Fire & Casualty Insurance Company policy.

It is a fact that the person of Mr. Filip-ski was not covered under the liability portion of the subject policy. It is the law that when a person is not insured under the liability portion of an automobile liability policy, that person is not entitled to UM coverage. Thus, proper application of the law to the facts results in the unavoidable conclusion that the Imperial Fire & Casualty Insurance Company liability policy does not provide UM coverage for Mr. Filipski. I, therefore, respectfully dissent.

      . An insured excluding himself is allowed under the 2001 amendment to La.R.S. 32:900(L), which provides, in pertinent part:
      (1) an insurer and an insured may by written agreement exclude from coverage the named insured ...

      . Mr. Filipski also argues Dickerson does not apply because the record is devoid of any evidence that the exclusion was signed for a reduced premium. We need not address the genuineness of this factual issue and its legal consequence because summary dismissal is not appropriate in this case for reasons hereafter articulated.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge. JONES, J., GORBATY, J.,

license: Public Domain

text:
    Erin GOOD, Dennis L. Good, Jr., and William A. Good, II v. Agnes R. SAIA, Augustin Lopez, Earl Williams, Robert Roth, Jr., and Guy Roth.
    No. 2008-CA-0682.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 8, 2009.
    Rehearing Applications Denied May 12, 2009.

      William F. Wessel, Wessel & Associates, a Law Corporation, New Orleans, LA, for Plaintiffs/Appellants.
    Michael L. Vincenzo King Krebs & Jur-gens, P.L.L.C. New Orleans, LA for Agnes R. Saia.
    Roy F. Amedee, Jr., Brent A. Klibert, New Orleans, LA, for Augustin Lopez and Earl Williams.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME.
   ROLAND L. BELSOME, Judge.

| lAppellants, Erin Good, Dennis Good, Jr., and William Good, II (hereinafter collectively “Appellants”) seek review of the trial court’s denial of a rule to assess costs and attorneys’ fees with respect to Appel-lees, Agnes Saia (“Saia”), Augustine Lopez (“Lopez”), and Earl Williams (“Williams”). For the reasons that follow, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Appellants filed suit on May 2, 2006 against Appellees and sublessees/assignees Robert Roth, Jr. and Guy Roth for breach of the lease for property located at 8850 Pontehartrain Boulevard. On September 12, 2007, this Court affirmed the trial court’s judgment in favor of Appellants’ Rule for Possession. Good v. Saia, 2007-0145, p. 30 (La.App. 4 Cm. 9/12/07), 967 So.2d 1161,1177. Appellants subsequently filed a Rule to Assess Costs and Attorney Fees, requesting costs in the amount of $471.50 and $20,025.00 in attorney’s fees.

Appellants acquired ownership of the property through a 1992 judgment in the matter of the Good Testamentary Trust. Good, 2007-0145, p. 17, 967 So.2d 1161, 1170. Lopez and Williams were the original lessees of the subject property, |2and Saia was obligated to the lease terms by having succeeded her deceased husband’s estate. Good, 967 So.2d at 1163-64. The original lease contained a term from August 1, 1976 to August 1, 1986, with five options to extend the lease for five years successively. Id. at 1164. This Court detailed the history of the lease:

On September 7, 1978, the lessees exercised their right under the lease to assign the lease to Windjammer, Inc.
On December, 4, 1985, Windjammer, Inc. exercised a renewal option extending the lease to August 1,1991.
On August 15, 1990, Windjammer, Inc. exercised a second renewal option.
On November 14, 1995, Windjammer, Inc. exercised a third renewal option. On February 5, 1997, Windjammer, Inc. assigned the lease to Robert Roth, Jr. and Guy Roth (“the Roths”).
On March 25, 2001, the Roths exercised a fourth renewal option.
On May 23, 2002, the Roths exercised a fifth renewal option.

Id.

With respect to the right to assign the lease, paragraph 15 of the original lease agreement provided as follows:

Lessee may, without the consent of Lessor [Good], assign or encumber this lease or its rights hereunder. In such event, Lessee shall remain liable for the payment of all rent required to be paid hereunder and for the performance of all terms, covenants and conditions herein undertaken by Lessee. Lessee shall have the right to sublet the demised premises at any time and from time to time during the term of this lease.

(emphasis added). Additionally, the lease agreement contained the following provision in paragraph 16 with respect to attorney’s fees:

|3It is mutually understood and agreed that, in the event it shall become necessary for either party to enforce the provisions of this lease by legal action or employ attorneys for the collection of any monies due hereunder, then the prevailing party shall be entitled to recover its reasonable attorneys’ fees for costs and other costs of such proceedings.

At the hearing on the Rule for Possession, William Good testified that Mr. Roth executed the final two five-year options from the original lease. Id. at 1171. He further testified that he had no further direct dealings with Saia, Lopez or Williams after 1997; the Roths paid rent directly to Appellants. Id. Additionally, Mr. Roth identified the 1978 assignment of the lease from Saia, Lopez, and Williams to Windjammer, Inc., and the assignment executed in 1997 from Windjammer, Inc. to the Roths. Id.

After the hearing, the trial court made the Rule for Possession absolute against Saia, Lopez and Williams, ordering surrender of the property to Appellants. Id. at 1164. That final judgment was not appealed by Saia, Lopez, or Williams. Id. The rule was continued as to the Roths, who asserted opposition to the Rule for Possession and ultimately appealed the ruling adverse to them interests. Id. at 1164— 1165.

On February 15, 2008, the trial court entered judgment denying Appellants’ request for attorney’s fees against Saia, Lopez, and Williams, but assessed costs in the amount of $100.00 against Saia, Lopez, and Williams. This appeal followed.

^STANDARD OF REVIEW

Attorney’s fees are not allowed unless provided for by statute or contract. Dixie Services, L.L.C. v. R & B Falcon Drilling USA, Inc., 2005-1212, 2006-1209, p. 8 (La.App. 4 Cir. 3/21/07), 955 So.2d 214, 220. The trial court is vested with much discretion in arriving at an award of attorney’s fees, and such award will not be reversed absent a showing of an abuse of that discretion. Filson v. Windsor Court Hotel, 2007-0755, p. 6 (La.App. 4 Cir. 7/23/08), 990 So.2d 63, 67. Interpretation of a contract, however, is a question of law and subject to de novo review. Berthelot v. Le Investment, L.L.C., 2002-2054, p. 3 (La.App. 4 Cir. 1/21/04), 866 So.2d 877, 880.

DISCUSSION

In the sole assignment of error, Appellants submit that the trial court erred in failing to recognize a provision in the 1976 lease agreement between Appellants and Saia, Lopez, and Williams that provides for an award of attorney’s fees when legal action is necessary to enforce the provisions of the lease. Appellants maintain that Saia, Lopez, and Williams are solidarily liable for attorneys’ fees with the Roths pursuant to La. C.C. art. 1821.

Conversely, Appellees submit that they were not lessees under the lease at issue and cannot be held liable for costs or attorney’s fees related to the Rule for Possession or the Appellants’ appeal. Appel-lees further submit that they had no dealings with Appellants after 1997, and that Appellants accepted performance Runder the lease by the Roths. Thus, Appellees argue, costs and attorney’s fees should be assessed against the parties who not only contested the Rule for Possession, but also deprived Appellants of possession of the subject property during the litigation.

When interpreting a contract, courts determine the comment intent of the parties, “giving the contractual words their generally prevailing meaning.” Associated Acquisitions, L.L.C. v. Carbone Properties of Audubon, L.L.C., 2007-0120, p. 5-6 (La.App. 4 Cir. 7/11/07), 962 So.2d 1102, 1106 (quoting SWAT 24 Shreveport Bossier Inc. v. Bond, 00-1695, p. 20 (La.6/29/01), 808 So.2d 294, 307)(citing La. C.C. arts.2045, 2047). Additionally, Civil Code article 2046 provides that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. C.C. art.2046. Moreover, “[wjhen a contract is not ambiguous or does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for a court to decide.” Associated Acquisitions, L.L.C., 2007-0120, p. 6, 962 So.2d at 1106 (quoting American Deposit Ins. Co. v. Myles, 00-2457, p. 5 (La.4/25/01), 783 So.2d 1282, 1286).

In the instant case, the aforementioned language in Paragraph 15 of the lease agreement provides that the Lessee shall remain liable for the performance of all terms, covenants and conditions under the lease. Thus, the plain language of the lease provides that Saia, Lopez, and Williams are liable for performance of the lease and for payment of Appellants’ attorney’s fees and costs. Furthermore, it is well-settled that contracts have the force of law between the parties. La. C.C. art 1983; Caniere v. Bank of Louisiana, 95-3058 (La.12/13/96), 702 So.2d 648, 666 (“the lease contract itself is the law between the parties”). Although Appellees did |(Snot object to the eviction, the obligation to pay attorney’s fees to the prevailing party in enforcement of the terms of the lease remains. Moreover, the record does not evidence, nor do Appellees argue, that Appellants ever agreed to release Appellees. Accordingly, based on the facts and circumstances of this particular case, we find that the trial court erred in its interpretation of the lease agreement and in denying the rule to assess costs and attorney’s fees against Saia, Lopez, and Williams.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is hereby reversed and remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

JONES and GORBATY, JJ„ dissent with reasons.

JONES, J.,

dissents with reasons.

I,The record before this court does not indicate that the district court abused its vast discretion in refusing to award attorney fees herein. Accordingly, I dissent.

GORBATY, J.,

dissents with reasons.

_jjl dissent for the reasons assigned by J. Jones.

      . The Rule to Assess Costs and Attorney Fees was filed on December 4, 2007.

      . This Court, in examining the trial court’s determinations, noted that the alleged breach of the lease agreement was discovered after Hurricanes Katrina and Rita, when the subject property was damaged. Good, 967 So.2d at 1172. Appellants attempted to determine the liability insurer and the policy number associated with the leased premises, but were unsuccessful. Id. Appellants then executed and forwarded a letter of default on the original lessees and the Roths on December 12, 2005. Id. After no insurance information was received, Appellants executed and issued a notice of eviction by certified mail in April 2006, followed by a Petition for Damages and Breach of Lease and a Rule for Possession. Id.

      .The trial court did not assign reasons for judgment in denying the request for attorney’s fees.

      . On February 29, 2008, Appellants and the Roths entered into a Consent Judgment, which ordered the Roths to pay Appellants attorney’s fees of $20,025.00 and costs of $471.50, with legal interest thereon from date of judgment.

      . An obligor and a third person may agree to an assumption by the latter of an obligation of the former. To be enforceable by the obligee against the third person, the agreement must be made in writing.
      The obligee's consent to the agreement does not effect a release of the obligor. The unreleased obligor remains solidarily bound with the third person
      La. C.C. art. 1821.


author: SULLIVAN, Judge. THIBODEAUX, Chief Judge,

text:
    Garnet THIBODEAUX v. Elizabeth WILLIAMSON, et al.
    No. 08-1082.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 2009.
    Nelson W. Wagar, III, Chopin, Wagar, Richard & Kutcher, LLP, Metairie, Louisiana, for Plaintiff/Appellant, Garnet Thibo-deaux.
    Gretchen Heider Mayard, Katherine Paine Martin, Katherine P. Martin, A.P.L.C., Lafayette, Louisiana, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company (as UM Carrier).
    Timothy A. Maragos, John E. Ortego & Associates, Lafayette, Louisiana, for Defendants/Appellees, State Farm Mutual Automobile Insurance Company as Liability Insurer of Elizabeth Williamson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

|, Plaintiff appeals a jury verdict, urging that it is inadequate in light of her injuries and future medical treatment she will have to undergo. For the following reasons, we affirm.

Facts

Garnet Thibodeaux was injured in a rear-end collision with Elizabeth Williamson on May 8, 2006. She sued Ms. Williamson and her insurer, State Farm Mutual Automobile Insurance Company, to recover damages for a neck injury she suffered in the accident. She also sued State Farm Mutual Automobile Insurance Company in its capacity as her uninsured/underinsured insurer. Defendants stipulated to liability for the accident, and Ms. Williamson was dismissed from the suit.

The matter was tried to a jury on February 28-29, 2008. The jury awarded her the following damages:

a) Past Pain, Suffering, and Mental
Anguish $15,000.00
b) Future Pain, Suffering, and Mental Anguish $ 5,000.00
c) Permanent Physical Impairment
and/or Disability 0.00
d) Scarring and Disfigurement due
to Surgery 0.00
e) Loss of Enjoyment of Life 0.00
f) Past Medical Expenses $10,869.50
g) Future Medical Expenses $ 8,000.00
TOTAL DAMAGES $38,869.50

After trial, Ms. Thibodeaux filed a Motion for Judgment Notwithstanding the Verdict, seeking an increase in damages, which the trial court denied. She appealed the jury’s verdict, assigning error with the jury’s damage award. She argues that the 12award “was grossly inadequate given the undisputed evidence of a herniated cervical disc with nerve root and spinal cord compression and that this medical condition” was caused by the May 6, 2006 accident. She further assigns as error the trial court’s denial of her Motion for Judgment Notwithstanding the Verdict.

Standard of Review

The jury’s damage awards are findings of fact. Ryan v. Zurich Am. Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214; La.Civ.Code art. 2324.1. Appellate courts review factual determinations of the jury pursuant to the manifest error — clearly wrong standard, which prohibits setting aside a jury’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Driscoll v. Stucker, 04-589 (La.1/19/05), 893 So.2d 32. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Discussion

Ms. Thibodeaux’s Medical History

Ms. Thibodeaux was injured in two incidents prior to the May 2006 accident. In 2002, she was involved in an automobile accident. She injured her neck in that accident also and was treated by her family physician, Dr. Brian Granger. On April 1, 2006, Ms. Thibodeaux fell while refereeing a soccer game and broke her right wrist. She was treated by Dr. Michael Duval, an orthopedist, for her wrist injury. Dr. Duval performed a closed reduction on her wrist and prescribed physical therapy. The course of physical therapy he prescribed had not been completed when Ms. Thibodeaux was involved in the accident at issue here, and Dr. Duval reevaluated her at the request of her therapist to ensure it was okay for her to continue her |3physical therapy regime. She thereafter completed physical therapy without further incident.

After her 2002 accident, Ms. Thibodeaux had been treated by Dr. Granger for headaches and neck and shoulder pain. Dr. Granger prescribed medication and a course of physical therapy. Ms. Thibo-deaux completed therapy as prescribed and, on October 27, 2004, was released by her therapist with a home program of exercises and stretches. Her complaints of pain to her physical therapist included headaches, right neck pain, left neck pain, and upper left back pain and tightness. The therapist noted on more than one occasion that her various complaints included “significant tightness and spasm in her posterior-lateral cervical musculature, especially the left side” with a “displayed prominence over her lower cervical and upper thoracic vertebrae” and noted on April 8, 2003, that “[s]he had a slight weakness in her upper extremities and cervical area muscles.” In February 2005, Ms. Thibodeaux complained to Dr. Gran-ger of throbbing pain in her left upper arm and left shoulder blade. Her last visit to Dr. Granger before her May 2006 accident was in October 2005. At that time, she complained of headache radiating to her neck. Dr. Granger noted she had spasm on the right side of her neck and prescribed pain medication.

Ms. Thibodeaux next saw Dr. Granger on June 6, 2006. Dr. Granger’s notes do not reflect any complaints by Ms. Thibo-deaux of neck pain on that visit. On July 14, 2006, Ms. Thibodeaux saw Dr. Granger complaining of a sinus infection. She also complained of neck pain that went down into her shoulders, which she related to her May 2006 accident. She informed him she had been treated by a doctor in New Iberia with no relief. On examination, Dr. Granger noted decreased range of 14motion with rotation, flexion, and extension. He prescribed pain medication and physical therapy.

On August 22, 2006, Ms. Thibodeaux returned, complaining of neck pain, which radiated down into her right arm, and numbness and tingling in her right arm. On examination, she had pain on the right side of her neck with decreased rotation with spasm in her right paraspinous muscles. Dr. Granger prescribed a pain reliever, a muscle relaxer, and continued physical therapy. He also ordered an MRI of Ms. Thibodeaux’s cervical spine. The MRI, which was performed on August 24, 2006, revealed “a significant central right lateral focal disc herniation with probable right G6 nerve root compromise.”

Ms. Thibodeaux’s next visit to Dr. Gran-ger was December 7, 2006. She complained of low grade fever, cough, sore throat, and neck and shoulder pain. She did not see Dr. Granger again until October 1, 2007, when she complained of neck pain and headache in the left temporal area. She indicated that her neck pain had been constant since the previous weekend and radiated to her left temple and down into her left arm. Dr. Granger’s examination revealed less strength in her left arm and a decreased range of motion in her neck due to pain in all directions. Dr. Granger ordered another cervical MRI and referred her to a neurosurgeon because of these complaints. The results of this second MRI were not introduced into evidence, and she had not seen the neurosurgeon before trial. The last entry in Ms. Thibodeaux’s patient record was a call to Dr. Granger on February 7, 2008, during which she complained of headaches and neck pain; he prescribed pain medication and muscle relaxers.

|sMs. Thibodeaux’s physical therapist’s notes indicate that she began therapy on August 1, 2006, at which time she complained of neck pain and muscle tightness. During the course of therapy, she complained of neck and shoulder pain, which she initially indicated ranged from six to. eight on a scale of ten. Her records indicate that her last physical therapy session was on February 8, 2007, at which time she rated her pain as zero; she was discharged and instructed to continue physical therapy with a home exercise program.

Ms. Thibodeaux testified that since the May 2006 accident there have been few days on which she was pain free. She explained that some days are better than others and that she cannot determine what makes the pain worse. Her pain is worse in the morning; she has a burning sensation and gets headaches primarily on the-left side that go down to the middle of her left arm. She has some right arm pain but not as much as the left arm. She has a burning sensation in her neck every morning that is usually in the area of five to seven or eight on a scale of ten. She alternates using Tylenol or ibuprofen to relieve her pain and uses muscle relaxers only when she can no longer tolerate the pain, which is approximately every two to three weeks. Ms. Thibodeaux testified that she has not allowed the pain to stop her from her usual activities. She has not missed a day of work since the accident; she has continued refereeing soccer; and she has traveled for leisure. She did testify, however, that the pain has limited some of her physical abilities like reaching overhead, which is sometimes required when she referees soccer, and picking up heavy things.

Ms. Thibodeaux’s Claims

Ms. Thibodeaux contends that the jury erred in failing to award her adequate damages for the injuries she suffered in the May 8, 2006 accident. She seeks an | (¡increase in damages for pain and suffering and an award for medical expenses associated with surgery for her herniated cervical disc. She argues that her injuries from the 2002 accident had completely resolved when the 2006 accident' occurred, that her fall over the soccer player in Ajoril 2006 caused only a broken wrist, that her injuries from the 2006 accident caused her significant pain and suffering which were not resolved when this case was tried, and that the 2006 accident caused a cervical herniation which will require surgery in the future. To the contrary, State Farm urges that the jury’s verdict is reasonable in light of the medical evidence and Ms. Thibodeaux’s actions prior to trial.

Ms. Thibodeaux had the burden of proving her claims by a preponderance of the evidence. She had to prove that the 2006 automobile accident caused injuries and what amount of damages would adequately compensate her for her damages. Coutee v. Beurlot, 06-2943 (La.9/5/07), 964 So.2d 304. With regard to surgery, she had to prove with medical testimony that the 2006 automobile accident more probably than not caused a condition which requires surgery and the cost of the surgery; she also had to prove that more probably than not she will have the surgery in the future. Basco v. Liberty Mut. Ins. Co., 05-143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660.

Ms. Thibodeaux relied upon the testimony of Dr. Granger and Dr. Duval to prove that the 2006 accident caused the right-sided cervical herniation and that the herniation would require her to undergo surgery in the future. Dr. Granger is the only doctor Ms. Thibodeaux consulted for her head, neck, and arm pain. He testified that her cervical herniation was more probably than not caused by the 2006 accident because, while she did have head and neck pain before the 2006 accident, she did not have any complaints of right-sided neck pain radiating down into her arm before that | .¡.accident. However, on cross-examination, he admitted that he could not say with certainty the 2006 accident caused the herniation and agreed the herniation could have been caused by Ms. Thibodeaux’s fall when she tripped over a soccer player. Dr. Granger further testified that Ms. Thibodeaux’s complaints of left-sided pain and weakness were not related to the right-sided herniation. On redirect examination, Dr. Granger testified that he did not believe Ms. Thibodeaux’s fall over the soccer player in April caused the herniation because she did not complain of head, neck, or radiating pain until after the 2006 automobile accident. Dr. Duval did not treat Ms. Thibodeaux for her neck complaints but testified that the 2006 automobile accident could have caused a herniation like hers.

It was the jury’s duty to determine the credibility of the witnesses, including Drs. Granger and Duval, and to accept or reject their opinions in whole or in part. Sportsman Store of Lake Charles, Inc. v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201 (La.10/19/99), 748 So.2d 417. Considering the record as a whole, we believe the jury concluded that Ms. Thibodeaux did suffer some injuries as a result of the 2006 automobile accident but did not accept her claims that her cervical disc herniation was caused by the accident and that she would undergo surgery for that herniation. We find this conclusion is reasonable in light of Ms. Thibodeaux’s complaints after her 2002 automobile accident, Dr. Granger’s acknowledgment that a fall like the one over the soccer player could have caused the cervical herniation, and Dr. Duval’s testimony that a herniation like Ms. Thibo-deaux’s does not always require surgery.

Motion for Judgment Notwithstanding Verdict

Discussion of this assignment of error is pretermitted by our determination that the jury’s verdict is reasonable under the facts.

[a Disposition

The judgment of the trial court is affirmed. All costs of this appeal are assessed to Garnet Thibodeaux.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

PETERS, J., dissents for the reasons assigned by Chief Judge THIBODEAUX.

THIBODEAUX, Chief Judge,

dissenting.

hThe plaintiffs treating physician, Dr. Granger, testified unequivocally that the May, 2006 accident more probably than not caused the plaintiffs injuries. While he admitted on cross-examination that Ms. Thibodeaux’s fall during a soccer game “could have” caused Ms. Thibodeaux’s herniation, and he could not say with certainty that the injuries were precipitated by the 2006 accident, the law does not require such an absolute standard. It requires simply a preponderance of the evidence, not certainty of the evidence.

Both physicians who treated Ms. Thibo-deaux linked her present medical problems to the May, 2006 accident. Dr. Granger, her long-time family physician, had not noticed any radiating pain in her right arm and upper extremities before the accident. Ms. Thibodeaux experienced pain in her left upper arm in October 2005. Following the May, 2006 accident, she felt pain in her right arm. Dr. Granger’s testimony with respect to causation went essentially unchallenged. A court must accept as true the unchallenged testimony of a credible witness when the record indicates no sound reason for rejecting it. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Ms. Thibodeaux’s claim is further buttressed by the fact that Rfuture medicals were awarded. Thus, the jury certainly felt that she was continuing to have pain and this pain would require future medical intervention.

The aggregate jury award of $20,000.00 for past and future pain, suffering, and mental anguish is abusively low, given the gravity of Ms. Thibodeaux’s cervical disc injury. I would increase the award to the lowest reasonable award under these circumstances, $150,000.00. Further, uncon-tradicted testimony placed the cost of a cervical discectomy and fusion surgery at approximately $40,000.00, an amount which I believe is appropriate.

For the foregoing reasons, I respectfully dissent.


author: COOKS, Judge.

text:
    Lori PHILLIPS v. STATE of Louisiana through LSU MEDICAL CENTER, Health Science Center, University Medical Center-Lafayette and James M. Roth, M.D. and Guy P. Zeringue, M.D.
    No. 08-1411.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 2009.

      L. Clayton Burgess, Lauren K. Ledet, L. Clayton Burgess, A.P.L.C., Lafayette, LA, for Appellants, Lori Phillips.
    James D. “Buddy” Caldwell, Attorney General, Paula M. Boagni Bertucinni, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, Baton Rouge, LA, for Defendants-Appel-lees, State of Louisiana, et al.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT and BILLY H. EZELL, Judges.
   COOKS, Judge.

Irfhe plaintiff in this medical malpractice claim, Lori Phillips, appeals the trial court’s grant of summary judgment dismissing her claim. Finding there were material issues of fact on the issue of informed consent precluding the granting of summary judgment, we reverse and remand for trial on the merits.

FACTS AND PROCEDURAL HISTORY

On April 18, 2002, Lori Phillips met with Dr. Guy Zeringue, III at University Medical Center (UMC) in Lafayette, Louisiana to discuss a sinus surgery, a brow lift, and the removal of breast implants. According to Dr. Zeringue, he discussed the known risks of the respective surgeries and answered Ms. Phillips questions, before giving her the consent form to read. Ms. Phillips stated she was informed Dr. James Roth would perform the sinus surgery, with Dr. Zeringue assisting, and Dr. Kenneth Odinet would perform the brow lift and breast implant removal. Ms. Phillips maintained at no time in the initial consultation did she execute a consent form. Defendants contend she reviewed and signed the consent form that day.

On May 17, 2002, Ms. Phillips was scheduled to undergo the above procedures. After she was placed under anesthesia, Ms. Phillips was informed that Dr. Odinet had an emergency and would not be able to perform the brow lift and breast implant removal. Ms. Phillips contends at no time did she wilfully give consent to have Dr. Roth and/or Dr. Zeringue perform the brow lift. She stated the only consent form ever presented to her was a one-page document given to her on the morning of her surgeries and while she was under anesthesia. Further, Ms. Phillips stated the document was never explained to her. Defendants assert that Ms. Phillips initialed the consent form after being informed that Dr. Odinet would not be performing the brow lift. The breast implant removal was not performed, and on the |2consent form, “removal of breast implants” was scratched out.

Ms. Phillips contends as a result of the negligence of Dr. Roth and Dr. Zeringue in performing the brow lift, she sustained “a large hole around her forehead, which still remains today, more than six years since the surgery.” Ms. Phillips submitted her claim to a Medical Review Panel (MRP), alleging medical malpractice by Defendants in negligently performing the brow lift without obtaining informed consent and without proper qualification.

The MRP rendered its decision on July 27, 2006, unanimously agreeing that the evidence in the record did not support Ms. Phillip’s claim of medical malpractice or lack of informed consent. The MRP stated:

It is the opinion of the State Medical Review Panel that the evidence submitted DOES NOT support the conclusion that the defendants ..., failed to comply with the appropriate standard of care which is required of health care providers, their staff and/or employees of the same specialty, for the following reasons:
The record reflects an executed form of consent signed by the plaintiff which was properly obtained. The executed consent properly discloses all relevant risks associated with the procedure.
Concerning the plaintiffs contention that the named health care providers were not qualified or credentialed, the Panel notes that the record submitted does not reflect the policy- of the University Medical Center — Lafayette relative to staffing privileges and, consequently, the Panel is not in a position to express an opinion.
As to the other allegations, the Panel notes that the evidence does not support the conclusion that the defendants failed to comply with the appropriate standard of care as charged in the complaint.

Subsequent to the MRP opinion, Ms. Phillips filed a petition for damages on October 4, 2006. Defendants filed a motion for summary judgment seeking to dismiss all claims. Specifically, Defendants argued because Ms. Phillips had not retained an expert, she could not prevail on her claims without expert opinion. A hearing was held on April 7, 2007, after which the trial court provisionally granted |3the motion for summary judgment, giving Ms. Phillips thirty days to file an expert affidavit.

Ms. Phillips retained an expert and submitted his opinion to the trial court. Defendants re-urged their motion for summary judgment. After, a second hearing, the court granted the motion for summary judgment dismissing all of Ms. Phillips’ claims. Ms. Phillips perfected this appeal, wherein she asserts the following assignments of error:

1. The trial court erred in ruling that plaintiff needed expert opinion to defeat Defendant’s Motion for Summary Judgment.
2. The trial court erred in finding there was no genuine issue of material fact and that Defendants were entitled to judgment as a matter of law.

ANALYSIS

It is well settled that an appellate court performs a de novo review of the record on the appeal of a trial court’s grant of summary judgment. Pursuant to La. Code Civ.P. art. 966(B), summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

The burden to show that no material issues of fact exist remains with the movant, but this burden shifts to the adverse party once the movant has made a prima facie showing that the motion should be granted. Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41. After a review of the pleadings, depositions, answers to interrogatories, admissions and affidavits, we find there are material issues of fact surrounding the issue of Ms. Phillips’ informed consent which preclude the granting of summary judgment.

Defendants contended Ms. Phillips, at a meeting on April 18, 2002, signed the | ^consent form after a discussion with Dr. Zeringue concerning the known risks of the respective surgeries and answered her questions. Ms. Phillips denied ever signing that form, but did acknowledge that it was discussed that Dr. Roth would perform the sinus surgery, with Dr. Zeringue assisting, and Dr. Odinet would perform the brow lift and breast implant removal. We do note the record includes a consent form with Ms. Phillips signature on it.

On the morning of the surgeries, Dr. Odinet had an emergency and was unable to perform the brow lift and breast implant removal. Defendants contended Dr. Roth went over the consent form with Ms. Phillips, who then signed the form. Ms. Phillips acknowledges signing a one-page consent form given to her on the morning of the surgery, but stated it was not explained to her and was given to her by the nurse. Further, she stated she had already been placed under anesthesia at the time she was presented with this form. She denied ever being informed that Dr. Roth would be performing the brow lift, and thus, did not give any consent for Dr. Roth to perform that surgery on her.

The duty to obtain informed consent is found at La.R.S. 40:1299.40(E)(7)(c), which provides that in order to be covered by the statutory provisions relative to informed consent, “the physician or other health care provider who will actually perform the contemplated medical or surgical procedure” must make the requisite disclosures. Thus, by the express terms of the statute, the duty of obtaining the informed consent of a patient is owed by the physician or health care provider who will actually be performing the procedure. The evidence presented shows that even if it were determined that Ms. Phillips signed the initial consent form on April 18, 2002, she did so believing Dr. Odinet would be performing the brow lift. On the morning of the surgery, Dr. Odinet was unavailable. Therefore, the consent form |fipreviously signed by Ms. Phillips was no longer acceptable as Dr. Odinet would not be the surgeon “who [would] actually perform the contemplated medical or surgical procedure.”

Ms. Phillips was presented with another consent form to initial on the morning of the surgery. However, there is a factual dispute in the record as to whether this consent form was explained to Ms. Phillips before she signed it, and whether it was ever explained to her that Dr. Roth would be performing the brow lift instead of Dr. Odinet. Further, as it appears she signed this form after being placed under anesthesia, it certainly presents a question of fact as to whether Ms. Phillips was capable of giving informed consent. Therefore, there are several material issues of fact on the issue of informed consent that preclude the granting of Defendants’ motion for summary judgment. We also do not find merit in the State’s argument that Ms. Phillips’ needed to present expert testimony on the issue of informed consent to defeat its motion for summary judgment. We find expert testimony in this area was not required.

DECREE

Foe the above reasons, the trial court’s grant of summary judgment in favor of Defendants is reversed in that there exist genuine issues of material fact regarding whether or not there was a valid informed consent by the Plaintiff prior to surgery. Accordingly, the matter is remanded for trial on the merits. All costs of this appeal are assessed to Defendants-Appellees.

REVERSED AND REMANDED.


author: SUSAN M. CHEHARDY, Judge. JASMINE, J.,

text:
    STATE of Louisiana v. Mozine JOHNSON.
    No. 08-KA-1156.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.
    Rehearing Denied May 21, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Desireie M. Valenti-Appellate Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant/Defendant.
    Mozine Johnson, Angola, LA, Defendant in Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

|2On April 8, 2005, the Jefferson Parish District Attorney charged the defendant with four counts of armed robbery, while armed with a dangerous weapon, in violation of La. R.S. 14:64. The defendant was arraigned on all counts on April 11, 2005. A second bill of information was filed on May 8, 2007, alleging four counts of armed robbery when the dangerous weapon was a firearm, in violation of La. R.S.14:64.3.

On April 13, 2007, a hearing on the motions to suppress the evidence, the statement, and identification was conducted. After hearing the testimony of many witnesses, reviewing exhibits, and hearing oral argument, the court denied all defense motions.

On June 11, 2007, trial commenced against defendant for the armed robberies of Michelle Colbert and Tina Bacon, counts three and four respectively. After hearing testimony and viewing evidence, a twelve-person jury unanimously found defendant guilty as charged. On July 12, 2007, defendant was sentenced to twenty-five years at hard labor for each armed robbery with a firearm count, to run [¡¡concurrently, with the “first fifteen years to be served without benefit of parole, probation, or suspension of sentence.”

On August 21, 2007, the State filed a habitual offender bill of information alleging that defendant was a second felony offender. On April 10, 2008, after a contradictory hearing, the tidal judge found that the State had sufficiently proven that defendant was a second felony offender. After adjudicating defendant a second felony offender, the trial judge vacated his original sentence and imposed an enhanced sentence of forty-nine and a half years at hard labor for the crime of armed robbery with a firearm.

On appeal, defendant seeks review of his convictions and sentences, raising counseled and pro se assignments of error including: the trial judge erred in denying the motion to suppress evidence; defendant’s right to a speedy trial were violated; defendant was tried pursuant to a bill of information that was defectively amended; defendant was denied his right to a preliminary examination; and finally, defendant did not receive effective assistance of counsel.

Testimony of witnesses at pre-trial suppression hearings and at trial revealed the following facts. Michelle Colbert testified that, on December 31, 2004, she was the manager at ‘Mr. Cash’ on the Westbank Expressway. About thirty minutes after she opened the store, a middle-aged African-American man in a navy blue suit came into the store and asked about a loan. Colbert, who was the only employee in the store that day, explained the procedure and the man left to purportedly retrieve the necessary documents. When the same man returned about |,,forty-five minutes later, Colbert immediately “buzzed” him into the store since she remembered him from earlier.

As Colbert turned around to get the necessary loan paperwork, the man pulled out a “big silver gun,” pointed the gun right at her face, and demanded money. In response to his demands to “give me the f* * *in’ money,” Colbert removed the entire cash drawer, which contained more than $720.00, and gave it to the gunman. She was unable to reach the panic button under her desk before the robber told her to “pick her hands up” or he would shoot her. That day, Ms. Colbert described the robber as a “black male, clean cut, dark complexion, a little taller than me, medium build, and of middle age.”

Lieutenant Daniel Johnson of the West-wego Police Department testified that he investigated the December 31, 2004 armed robbery of the Westbank Expressway location of ‘Mr. Cash.’ The victim, Michelle Colbert, described the robber as an “older black male” between “5'9", 5'11", soft spoken.” She described the weapon as a silver handgun.

At trial, Ms. Colbert identified the surveillance videotape of the incident, which was played for the jury. In this footage, the suspect’s head was cut off from the viewable area. Although a full view of the robber was not recorded, the tape revealed shiny buttons on the robber’s jacket. Ms. Colbert testified, at trial, that State’s Exhibit 16 looked to be the jacket the defendant was wearing at the time of the robbery.

On January 8, 2005, Tina Bacon was working at the Westbank Expressway location of ‘Mr. Cash.’ Shortly after the store opened, a man entered the store, pointed a “large silver gun” at her head, threw a bag on the desk, and demanded money. When Bacon asked him not to hurt her, he told her not to look at him because he would “shoot her in her damn head.” She gave him almost $600.00 in | Scash from the cash drawer. Ms. Bacon described the robber as wearing a baseball hat, a dark jacket, dark pants, tennis shoes, hat, and gold-rimmed glasses.

Detective Gary Barteet of the Westwego Police Department testified that he was the lead investigator of an armed robbery on January 8, 2005 at the ‘Mr. Cash’ location in Westwego, Louisiana. He learned that, just after the store opened for business that morning, a middle-aged black man entered the store brandishing a semiautomatic pistol and robbed the clerk. Detective Barteet and Ms. Bacon identified the video surveillance tape of the January robbery. The tape was played for the jury and later admitted into evidence.

During his investigation, Detective Bar-teet spoke with another ‘Mr. Cash’ employee, Monique Landry. Ms. Landry testified that she was employed at the Tulane Avenue branch of ‘Mr. Cash’ on December 31, 2004. She received a phone call at the store that morning inquiring about the store’s procedures. She described the voice of the caller as male, African-American, “real deep,” and a little cracky. The call made her suspicious because the caller specifically asked if the store gave its loans in cash. Because she was suspicious, Landry wrote down the name and telephone number displayed on the store’s Caller ID: ‘Freddie Carter’ and ‘342-1922,’ respectively. She gave the note that she had written to Detective Barteet.

Detective Barteet subpoenaed the telephone company’s records for the phone number ’342-1922.’ He learned that the bills for that telephone number, in the name of “Freddie Carter,” were sent to Ms. Rosetta Frazier on Beechgrove Avenue in Westwego. Further, the telephone number is for a landline in Ms. Frazier’s apartment. Detective Barteet went to the apartment and met with Ms. Frazier.

|fiRosetta Frazier stated that she knew the defendant because he was friendly with her sister, Jacqueline Bourgeois, who is also known as “Betty.” Ms. Frazier stated that she worked from 7 a.m. until 3 p.m. on weekdays, so if a call was made from her home telephone number during those hours, it was not made by her. Ms. Frazier admitted that Ms. Bourgeois frequented her apartment at that time and the defendant could have been at the apartment, too. When Ms. Frazier reviewed telephone logs from her home telephone number, she saw that a call was made at 9:57 a.m., on December 31, 2004. She denied making that call from her home telephone.

Based on the information gained from these interviews, Detective Barteet compiled a photographic lineup of suspects that contained the defendant’s photograph. When Detective Barteet showed Ms. Bacon the photographic lineup on the afternoon of the robbery, she positively identified the defendant as the man that had robbed her at the Westwego ‘Mr. Cash’ that morning.

After the second armed robbery of the same store, Lieutenant Johnson suspected that the same man had committed both crimes. He also compiled a photographic lineup that contained defendant’s picture. When he showed the lineup to Michelle Colbert, she identified defendant as the man that robbed her at gunpoint on December 31, 2004.

Based on the positive identification of the defendant by the victims, the Westwe-go Police obtained a warrant for the defendant’s arrest. On or about February 10, 2005, officers from the New Orleans Police Department arrested defendant in Orleans Parish at 400 North Galvez, Apartment 3, which was Jacqueline ‘Betty Bourgeois’ apartment.

Detective Todd Rivere, who was with the Westwego Police Department on February 10, 2005, accompanied his partner, Detective Barteet, to conduct a search |7of that apartment. After advising her of her Miranda rights, the two detectives spoke with Ms. Bourgeois. She told them that she was the only lessee and only resident of the apartment. She did admit that defendant frequented her apartment but denied that he resided with her. Both detectives testified that Ms. Bourgeois consented verbally and in writing to a search of her apartment. When the officers searched the apartment, they found men’s items in one corner of the bedroom. From that corner, the officers seized, among other things, a men’s blue blazer, baseball caps, and eyeglasses.

At trial, Ms. Colbert and Ms. Bacon both identified the defendant, in court, as the armed robber of ‘Mr. Cash’ in Westwe-go. After hearing the testimony and reviewing the evidence, the jury unanimously found defendant guilty as charged on both counts of armed robbery.

In his only counseled assignment of error, defendant argues that the trial judge erred in denying the Motion to Suppress the evidence obtained pursuant to purported consensual search of the apartment on Galvez Street. He specifically argues that his jacket was improperly seized by police from the home of Ms. Bourgeois. He contends that, while Ms. Bourgeois may have consented to the search of the home, he did not. He further contends that the Westwego Police Officers purposely prevented him from objecting to the search by having him arrested before arriving to begin the search.

The Fourth Amendment to the United States Constitution and Article I of Louisiana’s Constitution prohibit police from making a warrantless entry into a private dwelling. State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. Evidence that is derived from an unreasonable search or seizure will be excluded at trial. Id. Warrantless searches and seizures are unreasonable per se | «unless justified by one of the exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, 335.

One exception to the warrant requirement is where voluntary consent has been obtained, either from the property owner or from a third party who possesses common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). In order to rely on consent to justify a warrantless search, the State has the burden of proving that consent was given freely and voluntarily. State v. Joseph, 04-1240, p. 10 (La.App. 5 Cir. 4/26/05), 901 So.2d 590, 597, writ denied, 05-1700 (La.2/3/06), 922 So.2d 1176. Voluntariness is a question of fact to be determined by the trial judge under the totality of the circumstances. Id.

Where the prosecution seeks to justify a warrantless search by proving voluntary consent, it may show that permission to search was obtained from a third party who possessed common authority over (or other sufficient relationship to) the premises sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). In Matlock, the Supreme Court of the United States clarified that someone who has common authority over a residence, described as “mutual use” and “joint access and control for most purposes,” may consent to a search that is valid against a co-occupant. State v. Nicholas, 06-903 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 687. A warrantless search may be valid even if consent was given by one without authority, if the facts available to police officers at the time of entry justified the officers’ reasonable, albeit erroneous, belief that the one consenting to the search had authority over the premises. State v. Cambre, 04-1317 (La.App. 5 Cir. 4/26/05), 902 So.2d 473, 482, writ denied, 05-1325 (La.1/9/06), 918 So.2d 1039 (citations omitted).

|nAt the suppression hearing, Deputy Todd Rivere, who was Detective Barteet’s partner, testified that New Orleans police informed him by telephone that they had arrested the defendant. By the time the Westwego police arrived, the defendant was in the custody of the New Orleans Police Department. Defendant was not inside the apartment when the Westwego officers arrived.

Detective Barteet testified that Ms. Bourgeois informed them that she was the sole lessee of Apartment 3 at 400 North Galvez. Ms. Bourgeois alone had dominion and control over the apartment. She stated that defendant stayed with her sometimes and kept some of his belongings at her apartment but did not live with her. She also indicated that no area in the apartment was beyond her access.

At trial, Deputy Rivere stated that there was a small corner in the bedroom that had a rack containing men’s clothes. Deputy Rivere also stated that Ms. Bourgeois told the police that this area was for Mr. Johnson. He added that the lessee specifically informed him that Mr. Johnson sometimes frequented the apartment but was not a resident.

Ms. Bourgeois gave police verbal and written consent to search her home. The consent form was entered into evidence at trial. Finally, neither officer was aware that the defendant raised an objection to the search.

Here, the defendant argues that the search should have been suppressed because he was under arrest, and therefore precluded from objecting to the search, when his girlfriend gave consent to search them dwelling. The defendant argues that the search was contrary to the spirit of Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). We disagree.

In Randolph, the Supreme Court of the United States held that when law enforcement officers conduct a search, authorized by one co-occupant, over the express objection of another co-occupant, any further search would be | ^unreasonable as to the objecting co-occupant. In our case, there is no indication that defendant was a “co-occupant,” but rather an occasional visitor. Further, the record does not reflect that defendant “expressly objected” to this search. We decline to extend the Supreme Court’s ruling in Randolph beyond its facts.

We find this factual scenario is much closer to Matlock, supra. In that case, the defendant was arrested in the front yard of a house and detained in a squad car nearby. While standing at the doorway of the house, police officers, without asking Matlock, obtained consent to search the premises from a woman with whom he lived.

Regarding defendant’s contention that he was purposely removed from his apartment upon arrest to prevent him from objecting to the search, we turn to United States v. Hicks, 539 F.3d 566 (7th Cir.8/20/08). In Hicks, the defendant and his girlfriend shared an apartment. The police, investigating a shooting, went to the apartment to obtain consent to search. Upon arrival, the police arrested the defendant on two outstanding arrest warrants and removed him from the premises. The police obtained consent to search from the girlfriend, search led to the discovery of illegal weapons. The Hicks court found that the officers removed the defendant in order to arrest him, not in order to avoid his objection to the search. Id. at 570.

In this case, we find, as in Hicks, that the officers did not remove defendant to avoid his objection to the search. The officers legally arrested and removed defendant based upon a valid arrest warrant. Once he was removed, the apartment lessee’s consent was valid and legally permitted the police to search the entire residence. We find no error in the trial court’s denial of defendant’s motion to suppress evidence. This assignment of error lacks merit.

|nIn his first pro se assignment of error, defendant argues that he was “never given a chance” to cross-examine Ms. Bourgeois regarding her consent to search the apartment and, thus, the search cannot be valid. He contends that Ms. Bourgeois, who was named as a witness in his case, was not called at trial. He states that the detectives mentioned that she signed the search warrant but he was “never given a chance to be cross-examine” Ms. Bourgeois.

The defendant provides no legal or factual support for his argument. He clearly had a right to compel the attendance of witnesses. He asserts no impediment to calling this or any other witness during his trial. We can see no basis for granting relief on this claim.

In his second pro se assignment of error, defendant argues that his pro se motion for speedy trial should have been granted. La.C.Cr.P. art. 701 provides that both the state and defendant have a right to a speedy trial. La.C.Cr.P. art. 701D(2) establishes that the sole remedy for failure to commence trial within the mandatory time limit is pretrial release without bail, “if after contradictory hearing with the district attorney, just cause for the delay is not shown.” In State v. Cowger, 581 So.2d 283, 286 (La.App. 5 Cir.1991), this Court noted that any rights under this article become moot after conviction. Thus, even if defendant’s right to a speedy trial was violated, the issue became moot after his conviction. We can see no basis for granting relief on this claim.

In his third assignment of error, the defendant argues that the amendment to the bill of information was defective and he should have been given a continuance to prepare a defense to the new bill of information. The defendant, however, did 112not object to the amendment of the bill of information nor did he request a continuance to prepare a defense to the amended charges. La.C.Cr.P. art. 841(A) provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” The article further provides that “It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefore.” Defendant’s failure to object to the amendment of the bill of information and/or to request a continuance precludes relief on this claim.

In his fourth pro se assignment of error, defendant states, as follows: “Constitution of La. Section 14. The right to a Preliminary Examination shall not be denied in felony cases except when the accused is indicted by a grand jury.”

On June 28, 2006, counsel filed, along with a number of other motions in his omnibus motions, a request for a preliminary examination, alleging that the arrest was without probable cause. The individual defense motions were set for hearing on several occasions, but apparently, the motion for preliminary examination was never resolved in court.

Under the provisions of La. C.Cr.P. art. 296, if a defendant has not been indicted, the court shall, at the preliminary examination, order his release from custody, if, from the evidence adduced, it appears that there is not probable cause to charge him with the offense or a lesser included offense. The lack of a preliminary examination is not a fatal defect in light of the defendant’s conviction after trial by jury. See State v. Gates, 24,995 (La.App. 2 Cir. 1/19/94), 630 So.2d 1345, writ denied, 94-0640 (La.6/17/94), 638 So.2d 1091; State v. Wright, 564 So.2d 1269 (La.App. 4 Cir.1989).

j 13In this case, the defendant proceeded to trial without insisting that a preliminary examination be held. Furthermore, he has not shown, or even asserted, any type of prejudice from the lack of a preliminary examination. This assignment of error lacks merit.

In his final pro se assignment of error, the defendant argues that he received ineffective assistance of counsel at trial. He specifically argues that his attorney admitted at trial that the defendant had been to Angola for a previous conviction for armed robbery.

It is fundamental that a criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. Effective assistance of counsel does not mean errorless counsel, or counsel who may be judged ineffective on mere hindsight. State v. Hollins, 99-278 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, 681, writ denied, 99-2853 (La.1/5/02), 778 So.2d 587.

To establish ineffective assistance of counsel, a defendant must prove both that 1) his attorney’s performance was deficient, and 2) he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055. An error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 686, 104 S.Ct. at 2064. Prejudice is shown when the defendant demonstrates that but for counsel’s unprofessional conduct, the outcome would have been different. Strickland v. Washington, 466 U.S. at 693, 104 S.Ct. at 2068; State v. Soler, supra, at 1075.

In order to prevail, the accused must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; | specifically, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. An alleged error that is within the ambit of trial strategy does not establish ineffective assistance of counsel, because “opinions may differ on the advisability of such a tactic.” State v. Singleton, 05-634, p. 11, (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 811.

A claim for ineffective assistance of counsel is most typically and efficiently addressed in an application for post-conviction relief, where a full evidentiary hearing can be conducted, rather than on direct appeal. State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. However, when the record con tains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, such claims may be addressed on appeal in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993).

It is well established that “hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. An attorney’s level of representation is not determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987), citing Strickland v. Washington, supra. If an alleged error is part of counsel’s trial strategy, it does not establish ineffective assistance of counsel. State v. Esteen, 02-1241, p. 6 (La.App. 5 Cir. 4/29/03), 846 So.2d 167, 174, writ denied, 03-1486 (La.1/9/04), 862 So.2d 978.

Here, defendant argues that, during closing argument, his attorney told the jury that defendant had previously been incarcerated for armed robbery. Defendant does not support his allegation with reference to the record. In fact, the transcript reveals that defense counsel asked one of the investigating detectives if 11sthe officer knew about defendant’s prior conviction for armed robbery. The detective denied any knowledge of defendant’s prior conviction. Furthermore, even if we were to determine that counsel made such a statement during closing arguments, we cannot say that this statement was not a strategic trial decision by counsel.

Finally, as is our customary procedure, we have reviewed the record for errors patent, as required by La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We have found an error patent that requires remand for resentencing.

First, armed robbery is punishable by imprisonment at hard labor for not less than ten nor more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B). La. R.S. 14:64.3 punishes armed robbery with a firearm by an additional five-year term of imprisonment, to be served without benefit of parole, probation, or suspension of sentence. Clearly, neither statute allows for any portion of the sentence to be imposed with benefits. In this case, the trial judge imposed sentence, on count four, of twenty-five years at hard labor, with fifteen years without benefits. No corrective action is required, however, as the entirety of defendant’s sentence is deemed to contain the restrictions set forth in the applicable statute. La. R.S. 15:301.1; State v. Payne, 06-378 (La.App. 5 Cir. 10/31/06), 945 So.2d 749, 752, n. 2; State v. Ellington, 04-654 (La.App. 5 Cir. 11/30/04), 889 So.2d 1146, 1150, n. 2.

Second, the restrictions on benefit eligibility imposed on habitual offender sentences under La. R.S. 15:529.1 “are those called for in the reference statute.” State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 79, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983. In this case, the underlying armed robbery statute, La. R.S. 14:64(B), mandates that the sentence be served without benefit of parole, probation, or suspension of sentence. Again, it was error not to prohibit benefits on the enhanced sentence, but this error does not require remand because the provision is self-activating. La. R.S. 15:301.1; Payne, 945 So.2d at 752, n. 2; Ellington, 889 So.2d at 1150, n. 2; Esteen, 821 So.2d at 78.

However, we find that the current sentences for count three and the enhanced sentence for count four are indeterminate because the trial judge did not impose the mandatory five-year firearm enhancement. In this case, the defendant was convicted of committing two armed robberies with a firearm. Under the provisions of La. R.S. 14:64.3(A) effective at the time of the offense, he was subject to the following additional penalty:

When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64. (Emphasis added.)

Despite the mandatory language of the penalty provision, the trial judge failed to impose separate, consecutive sentence enhancements as required by La. R.S. 14:64.3. Moreover, the imposition of consecutive sentences applies to the enhanced sentence imposed under La. R.S. 15:529.1, when the underlying conviction is a violation of La. R.S. 14:64.3. State v. King, 06-1903 (La.10/16/07), 969 So.2d 1228, 1232. For this reason, we find the sentences are 117indeterminate and remand for resentenc-ing on both counts as well as the multiple offender adjudication.

CONVICTIONS AND ADJUDICATION AFFIRMED; AND REMANDED FOR RESENTENCING.

JASMINE, J., concurs with reasons.

JASMINE, J.,

concurs with reasons:

|,1 agree with the majority’s decision resulting in the affirmation of defendant’s convictions; however in my opinion, defendant’s claim of ineffective assistance of counsel would be best handled in an application for post-conviction relief which would include an evidentiary hearing.

      . On the first day of trial, the prosecutor withdrew the second bill of information (dated May 8, 2007), and amended the original bill of information to charge defendant with four counts of violating "La. R.S. 14:64.3” and to add the words "or firearm” to each count. The defendant was not re-arraigned on the amended charges. Defendant, however, proceeded to trial without raising an objection, and, thus, waived any irregularity. La.C.Cr.P. art. 555; State v. Johnson, 04-614 (La.App. 5 Cir. 11/16/04), 890 So.2d 19, 26.

      . On January 24, 2008, the trial court denied the State's Motion for Continuance on counts one and two. The State then nolle prossed these armed robbery counts.

      . On April 15, 2008, the court held an additional hearing on defendant’s enhanced sentence; neither the defendant nor his attorney were present for this hearing. In this hearing, the prosecutor asked that the court amend the commitment order to clarify that the defendant was multiple billed on the third count and that the original sentence on count three only was vacated. The court reiterated that the defendant's sentence was forty-nine and a half years at hard labor for the crime of armed robbery charged in the third count and to twenty-five years at hard labor for the crime of armed robbery charged in the fourth count. See Error Patent review for discussion of multiple offender sentencing.

      . Ms. Frazier stated that Freddie Carter is her children's father. She further testified that he was incarcerated on December 31, 2004.

      . U.S. Const., 6th Am.; La. Const. Art. I, § 16.

      . Subpart E of Article 701 provides that “just cause” includes “any grounds beyond the control of the State or the Court.”

      . La.C.Cr.P. art. 489 provides that if it is shown, on the defendant’s motion, “that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time.”

      . La. R.S. 15:301.1 provides, in pari:
      The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

      . By Act 208, 2006, which became effective on June 2, 2006, the legislature amended La. R.S. 14:64.3 adding the term 'hard labor’ to the sentencing clause of the statute. However, at the time the offenses were committed in this case, La. R.S. 14:64.3 did not have the words "hard labor” in the sentencing clause. The law in effect at the time of the commission of the offense is determinative of the penalty, which the convicted accused must suffer. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518. Thus, the proper sentence would impose the additional five years "to be served consecutively,” but not at hard labor. See State v. King, 06-1903 (La.10/16/07), 969 So.2d 1228, 1232.