author: PETERS, J.

text:
    Robin POOLE v. Wendell E. POOLE.
    No. 08-1325.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Walter E. Dorroh, Jr., Dorroh & Kendrick, APLC, Jena, LA, for Plaintiff/Appellant Robin Poole.
    Paul A. Lemke, III, Owens & Lemke, Inc., Harrisonburg, LA, for Defendant/Ap-pellee Wendell E. Poole.

      Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

| iRobin Poole appeals the trial court’s grant of a divorce to her former husband, Wendell E. Poole, based on her adultery, asserting two assignments of error:

1) The trial judge erred in overruling the exception of no cause of action filed to the reconventional demand alleging adultery.
2) The trial judge erred in accepting the testimony of the alleged paramours of Mrs. Poole.

For the following reasons, we affirm the trial court judgment.

The record establishes without dispute that the litigants were married on November 22, 1996, and that this litigation began with Mrs. Poole’s May 8, 2008 filing of a petition for divorce. In her petition, Mrs. Poole asserted that she and Mr. Poole last resided together as husband and wife on May 3, 2008, and based her request for relief upon her intention to continue to live separate and apart from her husband as required by La.Civ.Code art. 102. She also sought, among other relief, spousal support, claiming to have been free from fault in causing the breakup of the marriage.

Mr. Poole responded to this petition by filing an answer and reconventional demand. In this May 20, 2008 filing, Mr. Poole contested Mrs. Poole’s spousal support demand, asserting that she was at fault in causing the breakup of the marriage. Specifically, he asserted that Mrs. Poole had committed adultery. The act of adultery was the basis for his reconven-tional demand for a divorce. Mrs. Poole filed an answer to the reconventional demand in which she denied having committed adultery.

The matter went to trial on all issues on June 30, 2008, and upon the completion of the evidence presentation, the trial court took the matter under advisement. Without issuing reasons for judgment, the trial court executed a written ^judgment on August 11, 2008, granting Mr. Poole an immediate divorce based on Mrs. Poole’s adultery. This appeal followed that judgment.

OPINION

Assignment of Eiror Number One

Mrs. Poole’s first assignment of error addresses, not the trial on the merits, but a preliminary ruling by the trial court. Mrs. Poole responded to Mr. Poole’s re-conventional demand by filing, among other pleadings, a peremptory exception of no cause of action as to his adultery claim.

As previously stated, Mr. Poole filed his reconventional demand on May 20, 2008. With regard to the adultery claim, the reconventional demand stated that:

[Defendant in reconvention had an affair with Travis McCready, plaintiff in reconvention only found out 2 months ago, and assumes that the parties left the “Natchez Under the Hill lounge” and went parking. Plaintiff in reconvention states that he was asleep on the couch and defendant in reconvention was asleep in the bedroom, when the defendant in reconvention’s daughter, Christina Smart came into the bedroom to confront her mother, and awoke plaintiff in reconvention due to their altercation between the mother and daughter, when plaintiff in reconvention tried to interrupt the altercation he then learn [sic] that the defendant in reconvention had slept with her daughter’s boyfriend.

In her June 3, 2008 answer to the recon-ventional demand, Mrs. Poole addressed the adultery issue with the following response:

Plaintiff, Ms. Robin Poole, attests that she did not at any time commit adultery against the defendant by having an affair with Travis McCready or any other person. Travis McCready is the boyfriend of plaintiffs daughter, Christina Smart. Plaintiff has only ever escorted both her daughter, Christina Smart, along with Travis McCready, in plaintiffs vehicle when the two have requested that plaintiff give them a ride to various locations. Plaintiff has never left the Natchez Under the Hill Lounge or any other location with Travis McCready without the accompaniment of plaintiffs daughter, Christina Smart. Plaintiff has never gone “parking” with Travis McCready or any other person at any point and time.

_jjHer exception of no cause of action, which was filed on June 26, 2008, asserted that Mr. Poole did not “support his allegations with a specific date, time, or place that he alleges [Mrs. Poole] committed” adultery, and that without such information, she could not “provide an adequate defense” by establishing where she was at the time alleged.

The function of an exception of no cause of action under La.Code Civ.P. art. 927(A)(5) is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts that are alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234 (La.1993). When trying an exception of no cause of action, “[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.Code Civ.P. art. 931. In Industrial Companies, Inc. v. Durbin, 02-665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213 (citations omitted), the supreme court explained:

The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court ... should conduct a de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.

Louisiana Civil Code Article 103(2) provides that “[e]xcept in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that ... [t]he other spouse has committed adultery.” Thus, the law does provide Mr. |4Poole a remedy if he can prove the allegation of adultery. The inquiry on appeal, therefore, is whether Mr. Poole alleged facts in his petition which would afford him relief under La.Civ.Code art. 103(2), not whether Mr. Poole could prevail at trial.

The supreme court held in Simon v. Duet, 177 La. 337, 339, 148 So. 250, 251 (1933), that “[w]hen adultery is relied upon as a cause of action for divorce, it must be alleged in the petition or complaint that the act was actually committed. Otherwise no cause of action is expressed.” The court explained that “[i]t will not suffice to merely set out conduct from which it may be inferred that the act was committed. It must be alleged that the offending party was guilty of adultery, or was guilty of having sexual connection or intercourse, which mean the same thing.” Id. at 251. Here, Mr. Poole alleged that Mrs. Poole had committed adultery and that she had an affair with Travis McCready, which is sufficient to establish grounds for an immediate divorce under La.Civ.Code art. 103(2).

Following our de novo review, we conclude that the trial court did not err in denying Mrs. Poole’s exception of no cause of action. In reaching this conclusion, we do not suggest that Mr. Poole’s pleadings were adequate in all respects. The lack of information, however, should have been addressed by a dilatory exception of vagueness or ambiguity, as provided for in La.Code Civ.P. art. 926(A)(5), or by discovery.

Assignment of Error Number Two

In her second assignment of error, Mrs. Poole argues that the trial court was clearly wrong in concluding that Mr. Poole established that she committed adultery. This is a factual determination of the trial court that is subject to the manifest | serror/clearly wrong standard of review. Stobart v. State, Through Dep’t. of Tramp. & Den, 617 So.2d 880 (La.1993).

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. Where there is conflict in the testimony presented at trial, the trial court’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989). A trial court’s credibility determinations are subject to the strictest deference, and the manifest error or clearly wrong standard demands great deference for the trial court’s findings. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Stobart, 617 So.2d at 882. Thus, if the trial court’s decision is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though the appellate court would have weighed the evidence differently. Rosell, 549 So.2d 840.

The evidence at trial concerning the adultery issue was certainly contradictory, and the principal witness against Mrs. Poole was her alleged co-respondent in adultery, Travis McCready. Mr. McCready, who is a resident of Natchez, Mississippi, testified that he did commit adultery with Mrs. Poole and that the single act occurred in September of 2005. According to Mr. McCready, he met Mrs. Poole at a bar in Natchez, Mississippi, on an evening in late September of 2005. After some conversation at the bar, she offered him a ride home. On the trip to his house, shejjpulled the vehicle off the highway, and they engaged in vaginal sexual intercourse in the vehicle. This, according to Mr. McCready, was the only time he had sexual relations with Mrs. Poole, although he continued to see her on a regular basis at various bars in Natchez. He was eighteen years old at the time.

Mr. McCready testified that over two years later, in October of 2007, he began “hanging out” with Christina Smart (Ms. Smart), Mrs. Poole’s daughter. According to Mr. McCready, he fell in love with Ms. Smart and his conscience got the best of him. Rather than continue to lie to Ms. Smart, on April 5, 2007, he told her about the September 2005 sexual encounter with her mother.

Mr. McCready admitted on cross-examination that he used to smoke marijuana once or twice per week, has abused both prescription drugs and alcohol, and has been convicted twice of driving while intoxicated. He also admitted that he had lied to Ms. Smart in the past when questioned about any prior relationship with her mother, and specifically about whether he had sexual relations with her. Mrs. Poole’s counsel also suggested that perhaps Mr. Poole had paid for his testimony. While admitting that he had financial problems from time to time, Mr. McCready testified that Mr. Poole had never offered to give him money.

In her testimony, Ms. Smart acknowledged that Mr. McCready had confided in her in April of 2007 and said that, upon hearing Mr. McCready’s confession, she went directly to her mother’s and Mr. Poole’s home, confronted her mother about Mr. 17McCready’s confession, and informed Mr. Poole that her mother had committed adultery with Mr. McCready.

While acknowledging on cross-examination that she was still extremely upset at her mother, that Mr. Poole was paying her tuition for technical college, that she lived in a trailer provided her by Mr. Poole, and that he pays all of her utility bills, Ms. Smart denied that Mr. Poole’s kindnesses to her provided a financial incentive for her to testify. She stated that she was testifying against her mother because she felt it was the right thing to do. However, she also acknowledged that she left home in October of 2004, before she graduated from high school, because she and her mother “did not get along at all.”

In his testimony, Mr. Poole denied that either Mr. McCready or Ms. Smart were paid to testify on his behalf. He stated that he would have continued to pay Ms. Smart’s expenses even if she had chosen not to testify at the trial.

In response to the allegations against her, Mrs. Poole testified that she did not commit adultery with Mr. McCready in September of 2005 and was never alone in a vehicle with him, although she admitted meeting him at the bar at some time in the past. She also testified that she had not had sex with any man other than Mr. Poole since her November 1996 marriage. Mrs. Poole introduced the testimony of four character witnesses, all of whom testified as to her positive reputation for honesty and truthfulness.

Jessica Smart, another of Mrs. Poole’s daughters, also testified concerning a March 2008 discussion she had with Mr. Poole wherein he told her that he wanted a divorce from Mrs. Poole, and that he had wanted one for five years. She was also 18present at the April 5, 2008 confrontation between her mother and her sister and testified that her sister, while intoxicated and angry, asserted that their mother had been sleeping with both of their boyfriends.

John Morgan Hall, a twenty-two-year-old resident of Natchez, Mississippi, testified on behalf of Mr. Poole on rebuttal. He asserted that in January or February of 2008, he met Mrs. Poole at Dimples in Natchez, went to her Jonesville, Louisiana home with her, and had sexual intercourse with her. Interestingly, he testified that Mr. McCready, Christina Smart, Jessica Smart, and Jessica’s boyfriend were present at the Jonesville home as well. According to Mr. Hall, he became acquainted with Mrs. Poole through his friendship with Mr. McCready and Christina Smart. He had to admit to use of marijuana, a conviction of driving while intoxicated, and a conviction for theft. Furthermore, he could produce little or no detail concerning the evening in question.

This is an exceedingly close case involving credibility determinations on the part of the trial court. While we might well have made different credibility determinations and reached a different result, particularly because the only evidence of adultery is the normally highly suspect testimony of the co-respondent in adultery, we cannot say that the trial court was clearly wrong in accepting the.testimony of Mr. Poole’s witnesses to conclude that Mrs. Poole had committed adultery with Mr. McCready.

| ^DISPOSITION

We affirm the trial court’s judgment granting Wendell E. Poole an immediate divorce from his wife, Robin Poole, pursuant to La.Civ.Code art. 103(2). We assess all costs of this appeal to Robin Poole.

AFFIRMED.

      . The matter before us is not a covenant marriage.

      . The record contains no evidence that any discovery was pursued by either litigant.

      . Mr. McCready claims to be a musician who performed with a group at various establishments in the Natchez, Mississippi area.

      . Mr. Poole is not Ms. Smart’s father.

      . Mr. McCready claims his need to confess to Ms. Smart arose from guilt on his part as well as the fact that someone had informed Ms. Smart of a relationship between him and Mrs. Poole. In the past, Ms. Smart had confronted him about having sex with her mother, but he had denied to her that it ever happened.

      .These four witnesses were Geraldine Blackwell, Mrs. Poole's mother; Vickie Hamilton, Mrs. Poole's sister-in-law; Barry Hamilton, Jr., Mrs. Poole’s brother; and Jessica Smart.

      . Dimples is the same establishment where Mr. McCready is alleged to have met Mrs. Poole. We note that Mr. Hall’s testimony was presented on rebuttal and, therefore, cannot be used for the purpose of establishing the adultery allegation. We further note that the testimony was elicited without objection and assume that it is was submitted to offset Mrs. Poole’s testimony that she had not had sexual relations with any man other than her husband since her marriage, as well as the character evidence presented on her behalf.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Bobbie JEFFERS v. KENTUCKY FRIED CHICKEN.
    No. WCA 2008-1380.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff Appellee, Bobbie Jeffers.
    Kristine Smiley, Tierney and Smiley, LLC, Baton Rouge, LA, for Defendant Appellant, Kentucky Fried Chicken.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| |Appellants, Kentucky Fried Chicken and Louisiana Retailers Mutual Insurance Company (KFC), appeal the judgment of the workers’ compensation judge in favor of Appellee, Bobbie Jeffers (Jeffers). Jef-fers answered the appeal seeking additional attorneys fees. For the reasons that follow, we affirm in part and reverse in part.

FACTS

Jeffers was employed by KFC on January 2, 2005, when, as she lifted a pan of food, she felt or heard a “pop” in her back. The following day, she experienced an exacerbation of that condition; nonetheless, she continued to work for several days thereafter. On January 14, 2005, Jeffers complained to Mr. Ron Wilson, owner of the restaurant. Wilson and Jeffers discussed a referral to a doctor. Although the import of this conversation about a doctor is greatly in dispute, as we will later discuss, the gist of the conversation is not. Wilson asked Jeffers if Dr. Ronald Menard was acceptable to her. Jeffers replied that Dr. Menard was her family physician, and she consented to see him.

Dr. Menard saw Jeffers on January 14, 2005, and diagnosed her with lumbar sprain, “new problem.” He treated her with medications and advised that she could return to work on January 16 or 17. Jeffers went back to Dr. Menard on January 17. Dr. Menard told her at that time to take the next three to four days off.

On January 21, Jeffers again saw Dr. Menard, who at that time initiated physical therapy. Dr. Menard released Jeffers to work light duty the following week, if such work was available.

Wilson had placed his workers’ compensation carrier on notice of Jeffers’ claim. pit assigned Ms. Diane Spencer of Summit Claims Service to adjust the claim. Spencer forwarded a packet of information and documents to Jeffers. Included in that packet was a form for Jeffers to designate a physician of her choice. Jeffers signed that document, dated it February 3, 2005, and wrote that her physician of choice was Dr. Menard.

On February 4, Dr. Menard referred Jeffers to Dr. Roland Miller, an orthopedic surgeon in Crowley, Louisiana. Dr. Miller was to have seen Jeffers on February 17. Dr. Menard excused Jeffers from work until her appointment with Dr. Miller. Sometime between February 4 and 17, Spencer requested an update from Dr. Me-nard on Jeffers’ work status. Dr. Menard faxed Spencer a reply indicating that Jef-fers could return to work on February 19, despite his earlier February 4 work excuse and the fact that he had not seen Jeffers since that February 4 visit.

Unfortunately, Dr. Miller was sick on February 17, and did not see Jeffers then. This fact was communicated to Dr. Me-nard that day, who noted in his records that he was extending Jeffers’ work excuse until her rescheduled appointment with Dr. Miller in March. The records and testimony do not establish that this extension of the work excuse was communicated to Spencer.

Spencer had not initially been provided with Jeffers’ wage information. Summit commenced weekly indemnity benefit payments to Jeffers, mailed directly to her home, beginning with the January 24 pay period, for which Jeffers was paid $88.33 per week. Spencer’s supervisor issued this initial payment and based this payment on information that Jeffers was paid $5.30 per hour. Upon receipt on February 18 of Dr. Menard’s reply indicating that Jeffers could return to light duty on February 19, Spencer terminated weekly indemnity payments.

| aJeffers saw Dr. Miller on March 3, and he transmitted his report to Spencer. Dr. Miller indicated that Jeffers was unable to work. Her indemnity payments commenced again on March 4. These continued at the rate of $88.33 until March 31, when they were changed to $117.00 per week, based upon wage information Spencer at last received from KFC. Jeffers’ indemnity checks were based upon the belief that she was a part-time employee.

Treatment by Dr. Miller continued. On April 7, Dr. Miller reported that an MRI indicated a small L5-S1 disc herniation. However, Dr. Miller felt it could be treated non-surgically with epidural steroid injections that he wanted performed by a pain management specialist. While a referral for a pain management specialist was not approved, the steroid injections were. However, Jeffers was afraid of the injections and refused them.

On June 16, Dr. Miller had reached the point that he felt Jeffers needed a surgical evaluation by a neurosurgeon. He relayed this to Spencer by his report of that date. No neurosurgeon was named as the doctor to whom Dr. Miller wished to refer Jeffers, and Jeffers did not specify a neurosurgeon herself.

On June 20, a representative of Cypress Vocational Services, L.L.C., the vocational rehabilitation consultants hired by KFC, confirmed by letter to Dr. Miller that he was sending Jeffers to undergo a functional capacity examination, and that her work status was dependent on the outcome of that examination. Representatives of the Fontana Center for Work Rehabilitation, Inc., in Lafayette, Louisiana, scheduled the one-day examination for August 4. Jeffers did not appear for that FCE, though, because her back was hurting.

On August 31, Jeffers’ counsel forwarded a letter of representation to Spencer. |4In that correspondence, counsel requested that Spencer guarantee the referral to the still-unnamed neurosurgeon. Spencer did not directly respond to this request, but testified at trial that she did not deny the referral. That correspondence also attached a statement from American Legion Hospital in the amount of $165.00 with the demand that Spencer pay same. Spencer testified at trial that $99.00 had been paid on the American Legion statement on August 23. The statement was dated August 16. The record contains no other evidence regarding the payment of the American Legion statement.

A similar issue arose at trial over a bill from Opelousas Radiology Group, Ltd., of Lafayette. Spencer testified that $83.00 toward the bill was paid on April 13, 2005. This bill, though, had been forwarded to Spencer by letter from Jeffers’ attorney dated April 18, 2007, and was dated March 28, 2007. While the bill did not reflect the date of service by the radiology group, it showed that the bill was 31-60 days past due.

Jeffers filed a motion to compel medical treatment with Dr. John Cobb, a Lafayette orthopedic surgeon. In her motion, Jef-fers asserted that she had scheduled an appointment with Dr. Cobb for October 24, 2005, but KFC had denied benefits for it. The basis for KFC’s denial was that, because Dr. Menard was Jeffers’ choice of general practitioner, and he had referred her to Dr. Miller, Dr. Miller was thus her choice of orthopedic surgeon. The motion to compel was held on April 5, 2006. The workers’ compensation judge ruled that Dr. Menard was KFC’s choice of general practitioner; thus Jeffers was free to seek treatment from Dr. Cobb. She did see Dr. Cobb, who ultimately performed a diskec-tomy and fusion on January 23, 2007.

Jeffers filed three “Disputed Claims for Compensation” (hereafter simply referred to as “1008s”). In her first 1008, Jeffers asserted that no medical treatment |fihad been authorized, that the compensation rate was incorrect, that she had been denied her choice of orthopedic surgeon and “neuro,” and she was entitled to penalties and attorneys fees. That 1008 was filed on October 5, 2005. The first amended 1008 was filed on July 18, 2006, and asserted as the bases for the dispute the aforementioned items plus interest on all amounts. The second amended 1008, filed on August 27, 2007, asserted as grounds for dispute incorrect indemnity rate; failure to authorize medical treatment; termination of benefits on February 18, 2005; failure specifically to authorize the “neuro,” pain management and physical therapy; denial of choice of physician, “ortho/neuro”; penalties and attorneys fees; late weekly compensation checks; and legal interest on all amounts.

Trial commenced on December 5, 2007. The parties prepared pretrial memoranda. In her “Answer to Pretrial Questionnaire,” Jeffers asserted that the issues before the court were: whether KFC provided reasonable medical treatment, including the timely guaranteeing of medical treatment and payment of bills; whether KFC paid the appropriate weekly benefit rate and whether it paid them timely; whether mileage had been paid and paid timely; whether KFC provided appropriate vocation rehabilitation services; and whether KFC was unreasonable, arbitrary and capricious in failing to pay the correct indemnity rate, failing to allow choice of physician, failing to approve the referral by Dr. Miller to a neurosurgeon, failing to approve the referral by Dr. Miller to a pain management specialist, terminating indemnity payments, paying indemnity checks untimely, and denying physical therapy. Shortly before trial, Jeffers’ counsel served supplemental discovery responses that — KFC contends — for the first time raised the issue of when her weekly indemnity benefits should have commenced. KFC’s counsel objected to this issue being heard at that time. The | (¡workers’ compensation judge stated that if it appeared to him that KFC was going to be prejudiced by this late response, he would rule on allowing evidence on this issue at that time.

Following the close of evidence, the workers’ compensation judge found for Jeffers and awarded her weekly indemnity benefits of $142.00, ordered KFC to pay for all reasonable and necessary medical treatment, and assessed $8,000.00 in penalties and $18,750.00 in attorneys fees. The workers’ compensation judge awarded penalties because: 1) KFC failed to pay the correct compensation rate; 2) KFC failed to commence indemnity appropriately (failing to pay the “waiting week”); 3) KFC failed to timely guarantee treatment with a neurosurgeon; and, 4) KFC failed to timely pay medical bills.

This appeal ensued. Jeffers answered the appeal and seeks additional attorneys fees in the defense of the appeal. For the reasons that follow, we affirm in part and reverse in part.

ASSIGNMENTS OF ERROR

KFC urges ten assignments of error by the workers’ compensation judge:

1) awarding indemnity benefits for the period of January 14 through 23, 2005;
2) allowing the introduction of evidence regarding the “waiting week” of January 14 through 23, 2005;
3) finding that KFC did not pay the “waiting week;”
4) awarding penalties and attorneys fees for failing to pay the “waiting week;”
5) ruling that Dr. Menard was KFC’s choice of physician and not Jeffers’;
6) awarding penalties for failing to approve a neurosurgeon;
7) applying a 40-hour work week presumption in the calculation of indemnity benefits;
8) awarding penalties for untimely payment of the American Legion Hospital statement and Opelousas Radiology Group bill;
9) finding that Jeffers did not violate La.R.S. 23:1208.1 by not disclosing on a post-hire questionnaire previous treatment for back ailment; and,
17IO) awarding excessive attorneys fees.

ANALYSIS

Generally, the factual findings of a workers’ compensation judge are subject to the manifest error standard. That standard requires that the appellate court, in order to reverse, must find that the record reflects that there is no reasonable basis for the workers’ compensation judge’s factual determinations. Clay v. City of Jeanerette, 99-1421 (La.App. 3 Cir. 5/31/00), 768 So.2d 609, writ denied, 00-2006 (La.10/27/00), 772 So.2d 124. However:

“[T]he appellate court is not required by [the manifest error/clearly wrong] principle to affirm the trier of fact’s refusal to accept as credible uncontradicted testimony ... where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles.” West [v. Bayou Vista Manor, Inc.], 371 So.2d at 1150; See Thomas v. RPM Corp., 449 So.2d 18, 21 (La.App. 1st Cir.), writ denied, 450 So.2d 965 (La.1984).

Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992).

Assignments of error numbers 1 through 4,: KFC complains of the award of indemnity benefits for the period of January 14-23, 2005. The record reflects that Jeffers first saw Dr. Menard on January 14. Dr. Menard initially opined that Jef-fers could return to work on January 16 or 17. However, on January 17, Dr. Menard saw Jeffers again and opined that she should take the ensuing three or four days off and return to light duty the following week. A fair reading of the record supports the workers’ compensation judge’s ruling that Jeffers’ disability began on January 14. The issue regarding this period was whether Jeffers worked on the 16th and/or 17th. She was excused from work for the remainder of the week.

KFC complains that it was ambushed at trial because Jeffers had not made an issue of when her benefits should have commenced. We disagree. The second |samended 1008, which was filed a full three months before the trial, specifically asserted that part of the dispute at issue was timeliness of benefits. Further, Jef-fers’ “Answer to Pretrial Questionnaire,” filed even before the second amended 1008, twice referenced the timeliness of benefits. Further, the issue of when an employee actually worked during a given week should not be a mystery to either the employee or the employer; this is a fact equally verifiable by both. The argument in a workers’ compensation trial should be about whether the employee could work, not whether she did. The issue was properly before the workers’ compensation judge, and we find no error in his rulings on either the award of benefits for that week or the award of penalties for KFC’s failure to pay indemnity for that week.

Assignment of error number 5: KFC’s fifth assignment of error asserts that the workers’ compensation judge incorrectly ruled that Dr. Menard was not Jeffers’ choice of physician. This is a finding of fact, and cannot be disturbed absent manifest error.

A reasonable basis exists in the record for this finding. It is true that Jeffers signed a selection of physician naming Dr. Menard. We are also mindful that Dr. Menard was Jeffers’ family physician. Indeed, she may have sought treatment from Dr. Menard without her employer’s intervention, but that is purely hypothetical. The fact remains that the uncontradicted testimony established that her employer directed his injured employee to her family physician. The choice was the employer’s.

Assignment of e-iror number 6: The workers’ compensation judge ruled that KFC failed to approve a neurosurgeon as recommended by Dr. Miller. He assessed a $2,000 penalty to KFC for this failure. KFC urges that this was error because Jeffers never specified a neurosurgeon until after the hearing was held in which it was ordered to provide her with such a consult.

|<)The evidence establishes that KFC in fact never denied Jeffers the right to a neurosurgical consult. KFC merely requested that Jeffers designate to whom she wished to seek treatment. Jeffers did not designate a neurosurgeon until after the workers’ compensation judge ordered one authorized. In that same order, the workers’ compensation judge found that Jeffers had not chosen an orthopedic surgeon and was, therefore, free to choose Dr. John Cobb. Dr. Cobb, though, did not at any time recommend any neurosurgical consult. Indeed, the consult was recommended by Dr. Miller for the purpose of determining whether Jeffers was a candidate for surgery, while Dr. Cobb reached this determination on his own without the opinion of a neurosurgeon.

The Louisiana Supreme Court has held that, under certain circumstances, penalties can be awarded for an employer’s refusal to authorize a referral to a health care provider. Authement v. Shappert Eng’g., 02-1631 (La.2/25/03), 840 So.2d 1181. We note, however, that in Authe ment, the employer had authorized treatment with a specified doctor, then refused to prepay $750 for the treatment. The employer under those circumstances would have been subject to a penalty anyway.

The purpose of penalties is to discourage indifference on the part of the employer. Id. In the matter at hand, the uncontra-dicted testimony establishes no such indifference on KFC’s part regarding this authorization. It is not unreasonable that the employer at least be given the name of the physician to whom the referral is sought. KFC raises a valid point: the method Jeffers employed creates a “double authorization” procedure, in that the employer must initially authorize the referral to any neurosurgeon, then authorize the subsequent referral to a specific neurosurgeon. This when all Jeffers had to do was actually go see a neurosurgeon, as was her right. |inLa.R.S. 23:1121. When Jeffers did actually name a neurosurgeon, Dr. Thomas Bertuccini, the referral was authorized by Spencer.

This is in keeping with the statutory scheme. La.R.S. 28:1201(F) imposes a penalty for the failure of the employer “to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121.” Section 1201 does not impose a penalty for failing to authorize a specialist, but rather for failing to consent to the employee’s selection of a treating physician. For the employer to fail to consent to the employee’s selection of a treating physician, it stands to reason that an actual selection must be made. Consent for an initial treating physician of a given specialty is not required by La.R.S. 23:1121. See Apeck Constr., Inc. v. Bowers, 03-486 (La.App. 3 Cir. 12/10/03), 862 So.2d 1087, writ denied, 04-459 (La.4/23/04), 870 So.2d 301. We, therefore, find that the workers’ compensation judge did clearly err in finding that KFC failed to authorize a neurosurgical consult, and reverse his award of penalties in the amount of $2,000.00.

Assignment of eiror number 7: The workers’ compensation judge awarded Jeffers weekly indemnity benefits in the amount of $142.00 from January 14, 2005. KFC asserts that the amount was based upon an inappropriate presumption that Jeffers was a full-time employee whose compensation rate should have been based upon a 40-hour work week. We disagree.

La.R.S. 23:1021(11) defines a part-time employee as:

[A]n employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.

No evidence that the custom in the industry classifies Jeffers’ position as part-time was introduced. There was no evidence that KFC classified Jeffers’ position as part-time. |nNo evidence demonstrated Jeffers’ knowledge that the position was part-time. Nothing in the record, then, establishes that Jeffers was indeed a part-time employee as defined in La.R.S. 23:1021(11).

The workers’ compensation judge properly calculated the weekly indemnity benefits. According to La.R.S. 23:1021(12)(a), unless a non-part-time hourly employee regularly works less than 40 hours per week at her own discretion, the average weekly wage is calculated by multiplying her hourly pay rate times either the average actual hours worked during the four full weeks before the accident, or times 40, whichever is greater.

KFC was the party in the best position to correctly calculate Jeffers’ benefits. KFC failed to communicate Jeffers’ wage information to its insurer, and the insurer failed to pay the correct rate. We affirm the workers’ compensation judge’s awards of indemnity from January 14, 2005, and of penalties and attorneys fees.

Assignment of error number 8: The workers’ compensation judge assessed KFC penalties in the amount of $2,000.00 for failure to timely pay medical bills. The first was a radiology statement from American Legion Hospital in the amount of $165.00. Spencer testified that the statement was paid. However, she further testified that the payment was made by someone else. Four key facts about this statement are noteworthy: 1) its date; 2) when the statement was forwarded by Jef-fers’ counsel; 3) when the bill was paid; and, 4) a “pending notice” included on it. This statement was dated August 16, 2005. The date of service on the statement was January 14, 2005. At trial, counsel for Jeffers introduced his correspondence of August 31, forwarding the statement to Spencer. The uncontradicted testimony at trial establishes that $99.00 toward this statement was paid on August 23, 2005. Why a lesser amount was paid [ ^remains a mystery, as there is no explanation in the record. While it appears that the bill was timely paid, it is clear that the full amount was not. Without a valid explanation, this court cannot say that the workers’ compensation. judge erred in his findings regarding the bill.

The Opelousas Radiology Group bill indicated on its face that it was more than 30 days past-due. Again, an amount less than the actual bill was paid. With no further evidence introduced than the bill itself, we cannot conclude the workers’ compensation judge erred in ruling that it was not paid timely. We affirm the award of penalties.

Assignment of error number 9: KFC assigns as error the workers’ compensation judge’s adverse ruling on the issue of whether Jeffers forfeited her benefits pursuant to La.R.S. 23:1208.1. That section provides that an employer may require the employee to complete a questionnaire meeting certain formal requisites that inquires about the employee’s previous injuries. The employee is required to answer those questions truthfully. If the employee fails to answer truthfully regarding a previous injury, her benefits may be subject to forfeiture.

The case of Nabors Drilling USA v. Davis, 03-136 (La.10/21/03), 857 So.2d 407, provides the test for determining whether benefits are subject to forfeiture under § 1208.1: (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. The employer has the burden of proving each of the elements required by the statute. Id. The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute. Id.

In determining whether an employer has been prejudiced by an untruthful response, the supreme court adopted the “inevitability test,” under which the employer |13must demonstrate a direct relation between the two injuries, such that the previous injury rendered it inevitable or very likely that the subsequent injury would occur. See Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So.2d 1214. This lays a very difficult test before the employer, and with good reason: forfeiture of benefits is a harsh remedy. It should require very strict proof.

The evidence demonstrated that Jeffers indeed suffered low back strain in the past. Nothing demonstrated any direct relation between the previous low back strain and Jeffers’ herniated disc for which Dr. Cobb performed surgery. We cannot say that the workers’ compensation judge was in error.

Assignment of error number 10: The workers’ compensation judge assessed attorneys fees in the amount of $18,750.00, which KFC asserts was excessive. The Louisiana Supreme Court has stated:

The amount awarded rests within the discretion of the workers’ compensation judge, as long as that amount is supported by the record. Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case.

McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La.11/28/00), 773 So.2d 694, 700. Given the discretion vested in the workers’ compensation judge, we must find that discretion abused in order to reverse his ruling.

The record reflects that the hearings held are best described as contentious. Much of the record is devoted to evidentia-ry objections. Additionally, Jeffers’ counsel provided extensive documentation of the work he performed on the case. Given the nature of the claim and the documentation provided by Jeffers’ counsel, we cannot conclude that the workers’ compensation judge abused his discretion in |14awarding the fees.

Jeffers' request for additional attorneys fees on appeal: Jeffers seeks additional attorneys fees on appeal. This court has long held that an employee who successfully defends the workers’ compensation judge’s ruling should be entitled to additional fees. See Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. Jeffers has succeeded in defending nine of ten assignments of error in this appeal. She is, therefore, entitled to additional fees in the amount of $3,000.00.

CONCLUSION

Addressing KFC’s assignments of error, we find:

1), 2), 3) and 4) The issue of the “waiting week” of January 14 through 23, 2005, was properly before the workers’ compensation judge, and he correctly calculated and awarded weekly indemnity. He further correctly awarded penalties for KFC’s failure to pay timely and correctly the weekly indemnity benefits.

5) There was no error in the workers’ compensation judge’s finding that KFC made the choice of Dr. Menard;

6) The workers’ compensation judge did err in determining that KFC failed to authorize a neurosurgeon and in awarding a penalty on that basis;

7) The workers’ compensation judge accurately calculated Jeffers’ average weekly wage;

8) KFC failed to properly and timely pay the American Legion Hospital and Opelousas Radiology Group invoices, and the workers’ compensation judge correctly awarded a penalty for that failure;

11fi9) The workers’ compensation judge did not err in finding that Jeffers did not violate La.R.S. 23:1208.1; and

10) The award of attorneys fees was not an abuse of the workers’ compensation judge’s vast discretion. Therefore, with regard to the awards of penalties by the workers’ compensation judge, we rule as follows:

Failing to pay the correct indemnity rate, $2,000.00: Affirmed
Failing to pay the “waiting week”, $2,000.00: Affirmed
Failing to timely guarantee treatment with a neurosurgeon, $2,000.00: Reversed Failing to pay medical bills in a timely fashion, $2,000.00: Affirmed.

Plaintiffs request for additional attorneys fees in the defense of this appeal is granted and she is awarded $3,000.00 for same. All costs of the appeal are cast against RFC.

AFFIRMED IN PART, REVERSED IN PART.

      . All of the pertinent events, except as otherwise noted, took place in 2005.


text:
    Jackie Ray RENNET v. CITY OF NEW IBERIA.
    No. CA 2008-1369.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      David W. Groner, Attorney at Law, New Iberia, LA, for Plaintiff/Appellant, Jackie Ray Bennet.
    Rene Sylvain Paysse, Jr., Neal John Favret, Thomas Paul Anzelmo, Jr., Johnson, Johnson, Barrios, <& Yacoubian, New Orleans, LA, for Defendant/Appellant, City of New Iberia.
    Marcus A. Bryant, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Jackie Ray Bennet.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|TThe defendant, the City of New Iberia, appeals the judgment in favor of the plaintiffs, Jackie Ray Bennet, individually and as natural tutor over the estate of his minor child, Joshua Bennet, awarding Joshua $197,601.48, plus court costs and judicial interest from the date of judicial demand. For the following reasons, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

In late July 2005, Joshua, who was ten years old at the time, attended the “Softball Fun Day” at City Park in New Iberia, Louisiana. The property is owned and administered by the City. Included at the festivities was a child’s motorized train driven by an employee of the City’s recreation department. Joshua’s foot was seriously injured after the driver of the train hit a bump, causing Joshua’s foot to get entangled in the wheel, which thereafter rolled over his foot. Jackie filed suit against the City. Following a two-day bench trial in February 2006, the trial court awarded Joshua $197,601.48 (comprising past medical expenses in the amount of $19,531.48, future medical expenses in the amount of $70,570, $7,500 for permanent scarring, and $100,000 for past and future physical and mental pain and suffering and loss of enjoyment of life), plus court costs and judicial interest from the date of judicial demand. The trial court declined to award an amount for loss of future earning capacity. Both the City and Jackie now appeal.

ISSUES

The City assigns as error:

1. The trial court’s finding that it was 100% at fault for Joshua’s injuries when his mother, Paula Bennet, testified that she left her ten-year-old son unsupervised at the park.
|⅞2. The trial court’s finding that the City was 100% at fault despite expert testimony that the manufacturer of the train failed to install seat belts or construct fenders or running boards to protect occupants from moving parts, including the tires.
3. The trial court’s award of $100,000 in general damages for a broken toe.

Jackie assigns as error:

1. The trial court’s failure to find a loss of earning capacity for Joshua when he suffered a 12% permanent disability of his lower extremity and would likely have followed in father’s footsteps and sought employment offshore.

LIABILITY

The City argues that it was error for the trial court not to apportion fault to Paula or to Stephen Thebedeaux, the maker of the train.

In Layssard v. State, Dep’t of Public Safety and Corrections, 07-78, p. 3 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1057, writ denied', 07-1821 (La.11/9/07), 967 So.2d 511, the standard of review for a trier of fact’s apportionment of fault was set forth as follows:

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La.10/30/00), 773 So.2d 670, 680-81, set forth the standard for reviewing comparative fault determinations as follows:
This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault.
^Therefore, a trier of fact’s allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s finding of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

The testimony at trial regarding how the train came into use at the Fun Day was as follows: Hayward Migues, Jr. testified that he is the Superintendent of Parks and Recreation and that he organized the Fun Day event. He became aware of the train because he saw it traveling around the park. He said that Thebe-deaux asked if he could ride his grandchildren in the train in the park. Migues stated that he thought it would be a good idea to have the train for Fun Day. According to Migues, Thebedeaux did not charge the City for using the train and City employees went to Thebedeaux’s house to pick up the train. Migues stated that another city employee, Howard Rogers, drove the train on Fun Day. Migues testified that he asked Rogers to inspect the train overall, but did not require that he sign any paperwork. Further, he stated that he did not ask Thebedeaux for any paperwork relating to the train. Migues and Thebedeaux did have a conversation in which they discussed the construction of the train, but Migues did not ask for specifications or building standards Thebedeaux may have used when he built the train. Migues further testified that he visually inspected the train.

Migues admitted that he was unfamiliar with La.R.S. 40:1484.4, which provides regulations for the inspection of amusement attractions and rides and states, in pertinent part:

14A. Except for the purpose of testing, training, and inspection, no air-supported structure, amusement attraction or ride shall be operated in this state without an inspection having been conducted by an inspector and a certificate of inspection having been issued by the assistant secretary to an operator of such equipment.
B. (1) Every air-supported structure, amusement ride or attraction shall be inspected by an inspector for safety and subjected to nondestructive testing in accordance with ASTM-F-24 at least annually.

The statute requires certification of the results of the inspection and notification to the assistant secretary of the office of the State Fire Marshall by the operator of the amusement ride of his intent to commence operation at least thirty days prior to operation of any amusement ride or attraction. La.R.S. 40:1484.4(B)(2) and (C)(1). After reviewing La.R.S. 40:1484.4, Migues admitted that its requirements were not met. He went on to state that he was unfamiliar with La.R.S. 40:1484.2(3), but that after reviewing it he agreed that the train was an amusement ride within the definition of the statute. La.R.S. 40:1484.2(3) states:

“Amusement ride” means any mechanized device or combination of devices which carries passengers along, around, or over a fixed or restricted course for the purpose of giving its passengers amusement, pleasure, thrills, or excitement. “Amusement ride” also includes any mechanized device or combination of devices of a permanent nature even though such device or combination of devices is subject to building regulations issued by cities or parishes and existing applicable safety orders.

Migues testified that he instructed Rogers to drive the train at a speed of less than fifteen miles per hour, to have the kids dry off before getting on the train if they were coming from the pool, and to instruct the kids to keep them hands and feet inside the train. He further stated that parents were not required to ride with them children. Migues testified that he was not at the park at the time of the accident.

Rogers testified that he has been a park ranger for eleven years and that his duties included safety and security. He said that he drove the train at Fun Day. | ¡¿Rogers testified that he did not have any discussions with Thebedeaux about the train. He said that he, Migues, and Brian Romero, the maintenance supervisor, visually inspected the train. After a trial run, Rogers said that he felt the train was “safe enough” to pull. He stated that he drove the train at less than fifteen miles per hour.

Rogers said that on the day of the accident he picked the kids up in front of the pool. He stated that he used his judgment with regard to how wet the children were after getting out of the pool. He said that as the train went through a dip in the street, he heard people shouting to stop the train. He said the next thing that he saw was Joshua running from the train. Rogers said that the train had no guards covering the wheels, no running boards next to the wheels, no foot rails, or any kind of protective covering over the tires.

Thebedeaux testified that the train was built for his personal use. He said that he came up with the idea after seeing things on TV. He said that he did not purchase anything for the design of the train, nor did he purchase any regulations. He further testified that he did not write the design of the train down nor did he receive any training for building trains. Thebe-deaux testified that he and Migues did not discuss any specifications, regulations, or inspections. He said that he told Migues that he did not have insurance on the train, but that Migues said it would be covered while it was on the City’s property. Thebedeaux said that prior to the accident in question the City borrowed the train eight to ten times on weekends. Thebedeaux said that, following the accident, he made some modifications to the train.

George Fred Liebkemann, IV, an expert in mechanical and safety engineering, testified that he inspected the train following the accident. Liebkemann testified that had the train been inspected, pursuant to La.R.S. 40:1484.4, it would not [ fihave passed because the unguarded wheels violated safety regulations.

Joshua testified that he boarded the train and was not given any safety instruction by the driver. He said that the train hit a dip in the road causing him to bump up and his foot to slip off of the floor of the train. He said his foot got caught in between the tire and axle.

The trial court, in its well-reasoned written reasons for judgment, found that the City was negligent in:

failing to inspect the cart and take appropriate action to make certain that the wheels were covered or protected before allowing young riders to be on the cart. The Court also finds the City was negligent in that its employee driving the car drove at an excessive rate of speed under the circumstances and didn’t slow for a bump in the road, or a dip in the road, causing Joshua, who was seated on his seat at the time of the incident properly and in the right location, to bump from his seat. The Court finds it caused Joshua to bump from his seat, causing his foot to come into contact with the unguarded tire, proximately causing the injuries and damages in this litigation.
Regardless of whether or not strict liability applies under 40:1484.3 and 40:1484.4, the Court finds that the City is responsible based on negligence. As to the strict liability argument, the Court finds that the City is also strictly liable having guard over a defective product over which it knew, or should have known, of the defect. 40:1484.3 compels certificates of inspection. Had that been done in this case, then the cart could not have been used in service at the time of this particular injury. That is not to say that the employees of the City were callous or in complete disregard of the safety of their young charges on the day of the accident. They took what they felt at the time to be reasonable precautions; but reasonable people could and should have been aware of the inspection requirements and could and should have been aware of the dangerous condition of the cart, having an unguarded tire in close proximity to young feet as they were pulled through the City Park over speed bumps and uneven surfaces. It certainly was easily foreseeable that something like this could and would happen if unbuckled children, whose feet were 2-5/16" from an unguarded wheel, were riding in a cart and that cart hit a bump or a dip causing them to come into contact with that wheel, as happened in this particular case.

Regarding fault allocation to Thebedeaux, the trial court found:

[T]here is no comparative fault on the part of Stephen Thebedeaux. 17This man didn’t build the train to lease it out or lend it out to the City of New Iberia. They (the City of New Iberia) took the responsibility when they got it for the condition of the train, and the City (of New Iberia) was the one that had the duty to inspect before allowing anyone to ride. The owner never represented anything to the City (of New Iberia) anything about the train, other than, “You can use if you want to.” He built the train for his grandchildren and wasn’t expected to build it up to specs. Though he did allow the City (of New Iberia) to use it, they assumed all of the responsibility for it when took it into their guard or possession.

We cannot say that the trial court manifestly erred in apportioning 100% fault to the city. We note that the City failed in its duty to not only have the train inspected to be sure it met safety regulations, but also to inform the assistant secretary in writing thirty days ahead of time that it intended to use the train at the Fun Day. We additionally find that the presence or absence of Paula had no bearing on the occurrence of this accident. The City specifically allowed children to ride the train without parental supervision; moreover, there is nothing to suggest that a parent’s presence on the train would have eliminated the safety issues surrounding a completely unguarded tire in close proximity to passengers’ feet. There is no manifest error in the trial court’s finding that the train was negligently operated by the driver. Finally, we cannot say the trial court erred in not apportioning fault to Thebe-deaux. It is clear that he built the train for personal use and the City approached him about using it for Fun Day, which he generously agreed to provide free of charge. Accordingly, there was no error in the trial court’s finding that the City assumed the responsibility for using the train at a public event. For all of these reasons, apportioning fault 100% to the City was not erroneous and this assignment of error is without merit.

GENERAL DAMAGES

General damages are speculative in nature and, thus, are incapable of | Rbeing fixed with any mathematical certainty. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70. They include pain and suffering, physical impairment and disability, and loss of enjoyment of life. Id. As they are speculative, a trial court’s award of such damages is reviewed in light of the standard set forth in 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). First, we determine if the trial court’s award for the particular injury and its effect under the particular circumstances on this plaintiff is a clear abuse of the trial court’s “much discretion.” Id. at 1260. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id. at 1261.

Again, the trial court provided extensive, well-thought out, reasons for awarding Joshua $100,000 in general damages as follows:

As to the award for pain and suffering, there is no doubt that this was an extremely painful injury for young Joshua. The evidence was clear that he was screaming in pain at the time his mother picked him up and brought him to Dauterive Hospital. The city workers apparently did an exceptional job in cleaning that wound, as did Dauterive (Hospital), as did the Lafayette General Hospital because no infection took place and that wound was able to heal without infection; but not without some considerable pain on the part of Joshua.
In addition to the pain he experienced required morphine, a very strong pain medication at the hospital, he continued to suffer excruciating pain when that wound was changed by the home health care people, so much so that his mother and father had to help hold him down, depending on who was available, as that dressing was changed, and so much so that he fought those home health care workers and did not want his dressing changed. Fortunately, they prevailed, as did his parents, and that vacu-pack that was put on him did help prevent future infection that may have resulted in the loss of his foot had those dressings not been changed.
laSo he did achieve an excellent result from the surgery that was performed at Lafayette General Hospital by Dr. Hebert, as well as the after-care from the nurses, and especially by his mother, and to some extent his father, who sat on him and made sure that his wound was cleaned and made sure that he was not allowed to play in the yard or do anything that might get that wound infected. They took a lot of love and care and attention with him to make certain that that wound healed, and they are to be commended for that. He did, however, suffer a considerable amount while those home health care workers were working with him and while that would was being dressed and re-dressed, and to some extent through October the 17th of '05 continued to suffer some fairly substantial pain.
At about that time he was released to go back to a regular school setting and to wear a regular shoe. He did wear an open-toe boot for some time after he regained his ability to walk at school, and he suffered some embarrassment because of that. And then finally, was able to wear the regular shoe.
He continued to suffer with pain at school through at least through October of '06 when things seemed to have stabilized to some extent; and though he continued to have some pain and discomfort upon excessive motion, for the most part he has had an excellent result and has made an extremely good recovery.
The testimony was that in February of '07 when he attended a Cajun Fun Fest during Mardi Gras in Lafayette, he had to stand and walk for two (2) to three (hours) at a time, resulting in some swelling and some additional pain, for which he was seen by Dr. Hebert and treated, with the caution that: If swelling occurred, or if fever occurred, or anything of the like occurred, he was to return immediately. Apparently he either modified his activities or did not suffer any additional bouts that required him to be brought to the hospital.
There was some testimony that from time to time his foot did swell on extremes of activity and his mother had to get him to sit down and get off of his feet. There was some testimony that from time to time in P.E., or in other activities, he had some pain on extremes of activity, basketball practice, etc., all of which has been considered by the Court and is being considered.
There was some additional testimony that in 2006 in September he started the After School Program and was extremely active during the program with no complaints. Indeed there were no medical records to corroborate or substantiate that he had to see the doctor, or suffered any pain or swelling as a result of those activities.
The last young lady who testified made a very credible witness, | inand the Court accepts her testimony as credible and believable (Crystal Boyance), [that] she was in daily contact with Joshua in the '06 school year; and if not daily, significant contact in the '07 school year, and she was not even aware that he had a foot injury. Certainly he exhibited no real problems, which indicates that he was not having any significant pain or swelling in '06 or '07, except for the incident reported by his mother, and that was reported to Dr. Hebert.
That is not to say he was not having problems. It is not to say that he didn’t suffer; but it wasn’t to the extent that it required medical treatment and it wasn’t to the extent that it was an unusual amount of suffering. Certainly the Court accepts his testimony, as well as that of his mother, that on extremes of motion and activity he did have some swelling and pain that continues to this day. But fortunately for him, it wasn’t to the extent that disables him from any of his regular activities.
The testimony was clear that he is not playing basketball, not because of his inability to do so because of his injury, but because of his mother’s wise decision to try to keep him from sports until he can focus on a much more important aspect of his youthful upbringing, and that is his education....
Certainly he is not medically limited from performing any activity. He is limited on self-limited by pain, and the Court finds that that pain is not so significant as would impair his ability to do normal sports activities and normal activities. If it does get to that point, which the Court feels the doctors have said it eventually will, that is when the fusion will take place, the future surgery, for which he will also experience pain and suffering and some significant pain during post-op treatment and recovery. But after that, according to both doctors, he should be good to go for just about anything.
He will have a permanent impairment and a permanent disability as a result of this lower extremity injury: 12% of the lower extremity and 5% of the foot, I believe, according to the doctors; so there is some permanent disability.
Considering all of the evidence that the Court has heard and the law, the Court feels a general damage award in the amount of one Hundred Thousand ($100,000.00) Dollars would be fair, just, and reasonable for Joshua under the circumstances of this case.
Certainly Mr. Favret has cited cases to the Court that would, in his view and in the Defense’s view, would warrant an award substantially less than that, a $30,000.00-range. Mr. Bryant has cited cases to the Court in the $175,000.00 to the $200,000.00-plus range, and the Court has considered those awards.
|T1 The bottom line in this case however, is that the young man has achieved what the doctors feel is an excellent result; and even though he has suffered considerably and will continue to suffer in the future, and will have a permanent loss of enjoyment of life to some extent based on that disability in the future, an award of One Hundred Thousand ($100,-000.00) Dollars in this Court’s view adequately compensates Joshua for his general pain and suffering, past and future, and loss of enjoyment of life.

Having reviewed all of the testimony and evidence, we find that the trial court did not abuse its discretion in awarding Joshua $100,000 in general damages. It was clear from reading Joshua, Paula, and Jackie’s testimony that Joshua’s injury was painful, required surgery and an extended period of recovery at home, the use of orthodics and a boot at school, alteration of his normal levels of activity and play, and ongoing pain, depending on activity. Accordingly, this assignment of error is without merit.

FUTURE LOSS OF EARNING CAPACITY

Joshua argues the trial court erred in failing to award him an amount for future loss of earning capacity. We disagree. In Batiste v. New Hampshire Ins. Co., 94-1467, pp. 3-4 (La.App. 3 Cir. 5/3/96), 657 So.2d 168, 170, writ denied, 95-1413 (La.9/22/95), 660 So.2d 472 (citations omitted), we stated:

Loss of earning capacity is not the same as lost wages. Rather, earning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiffs earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiffs lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity.
In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages him in the work force. The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now | 12earn given his resulting condition. The very nature of lost earning capacity makes it impossible to measure the loss with any kind of mathematical certainty. The facts of each case must take into account a variety of factors, including the plaintiffs condition prior to the accident, his work record prior to and after the accident, his previous earnings, the likelihood of his ability to earn a certain amount but for the accident, the amount of work life remaining, inflation, and the plaintiffs employment opportunities before and after the accident.

An award of damages for future loss of earnings and loss of earning capacity is reviewed on appeal for manifest error. Fruge v. Hebert Oilfield Constr., Inc., 03-349 (La.App. 3 Cir. 10/1/03), 856 So.2d 100, writ denied, 03-2997 (La.1/30/04), 865 So.2d 77.

Glenn Hebert, a licensed rehabilitation counselor, testified that he works with individuals that are disabled, conducting vocational assessments, loss of earning capacity assessments, and helping them go back to work if feasible. He was qualified as an expert in vocational rehabilitation. Hebert discussed all of the factors that go into making an assessment, particularly in a child who has no work background, such as his educational achievements and his parents’ occupations. Hebert determined that it was unlikely that Joshua would attend college since his parents do not have college degrees. He determined that it was most likely that Joshua would be a general laborer either offshore or on land. He further opined that with a 12% impairment in his foot he would be unable to engage in jobs that require a lot of climbing up and down stairs, squatting, picking up heavy weights and walking with them. These restrictions were also based on testimony that Joshua would develop arthritis and probably have to have toe fusion surgery in the future.

Hebert testified that he looked at the average weekly wage paid to laborers. Finding that “children normally follow in their father’s footsteps,” Hebert | ¡.¡said that as a laborer in the Gulf of Mexico he would make $8.00 to $8.50 per hour. Hebert then essentially stated than any anatomical loss would incur a loss of future earning capacity. This subject was debated and Hebert admitted that he was not sure if a loss would be incurred if the patient is not restricted from performing any activity that is required of the job. However, he opined that any potential loss of earning capacity is a loss even if one does not actually lose money. Hebert admitted that Joshua’s physician did not say that Joshua would have a problem working in the future.

R. Douglas Womack, an expert in economics, testified that he looked at Joshua’s earning potential before and after the accident. According to Hebert’s calculations that Joshua could have earned $9.00 per hour, but due to his disability he would probably earn $6.50 an hour, he would lose $139,838 over his work-life expectancy, and $186,298 if he worked until age 67. If he were to follow in the his father’s footsteps, Womack stated that he would lose $667,133 or $888,783 if he worked until he was 67. Womack discussed in detail various factors that were used in making those determinations.

Again, after providing extensive written reasons for judgment the trial court found:

After an extensive review of the jurisprudence and full consideration of all of the evidence, briefs, and argument of counsel, in this case, this Court is not persuaded that more likely than not, Joshua has proved a loss of earning capacity. Dr. Hebert’s testimony is clear that a fusion will actually help Joshua in the future, and though he will have a permanent physical impairment and anatomical disability rating, for which he has been generously compensated, the Court finds that an award for loss of earning capacity in this case is too speculative and has not been proven by a preponderance of the evidence.

The trial court found that Hebert’s testimony was not supported by 114medical evidence or from studies. It further found that it was speculative whether Joshua’s disability would cause any functional loss of ability to do anything. We find no manifest error in these findings. This assignment of error is without merit.

CONCLUSION

The judgment in favor of the plaintiffs, Jackie Ray Bennet, individually and as natural tutor over the estate of his minor child, Joshua Bennet, awarding them $197,601.48, plus court costs and judicial interest from the date of judicial demand, and against the defendant, the City of New Iberia, is affirmed. All costs of this appeal are assessed against the City of New Iberia.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Thomas G. RIOS, Appellant.
    No. 44,132-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Lea R. Hall, Jr., Damon D. Kervin, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and MOORE, JJ.
   BROWN, Chief Judge.

11 Defendant, Thomas G. Rios, was charged by bill of information with unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4. A jury found defendant guilty as charged. After being adjudicated a second felony offender, defendant was sentenced to serve 20 years at hard labor. Defendant has appealed his conviction and sentence. For the reasons set forth below, we affirm both the conviction and sentence.

Discussion

Sufficiency of Evidence

Both appellate counsel and defendant in a pro se supplemental brief argue that the evidence presented was insufficient to prove guilt beyond a reasonable doubt.

Lloyd Nelson, the new car sales manager of Red River Chevrolet, testified that on May 16, 2006, defendant entered the dealership. Nelson had a discussion with defendant, who then left. Nelson never saw defendant again; however, a few minutes later, Theron Colston, a porter for the dealership, came into the showroom. Nelson testified that he thought Colston looked “excited” and “stirred up.” When he asked Colston what happened, Colston replied, “Lloyd, that Mexican dude that was just in the showroom jumped in a truck and took off.” Nelson testified that he assumed that defendant was the “Mexican dude.” Nelson positively identified defendant as the man he saw and spoke with inside the dealership.

Nelson testified that the truck that had been taken was a 2006 silver crew cab Z-71 Silverado that had been placed in the “make-ready” area to be detailed for a purchaser. Normally when vehicles were taken to the |2“make-ready” area, the keys were removed and placed in either a lock box or a locked closet for safekeeping. At the time the truck was stolen, it had no license plate on it, only the Red River Chevrolet advertisement tag. The vehicle was equipped with OnStar. Nelson reported the taking to police, and an alert was issued.

Red River Chevrolet is located on the Bossier City side of the Red River just off 1-20. Lieutenant David Searcy of the Greenwood Police Department learned that the truck was being tracked via OnS-tar and was westbound on 1-20. Lt. Searcy entered 1-20 westbound directly behind the truck. He initiated his lights and siren and stopped the truck. When his backup, Officer Stacy Porch, arrived, Lt. Searcy cuffed defendant and read him his Miranda rights. After defendant was read his rights and placed in Lt. Searcy’s vehicle, the officer asked defendant where he got the vehicle. “He said he had borrowed it from a friend. [Searcy] asked him what was the friend’s name, and after that he didn’t say anything ... The only statement he really made, he asked about the food in the jail and, you know, things of that nature, but nothing else about the vehicle or anything like that.”

Officer Porch ran the license plate on the vehicle through the computer system in her car and found that the plate belonged to a vehicle registered to Ricky Bridges, who was the Assistant Chief of Police for the Town of Haughton. Chief Bridges was contacted and informed the officers that the license plate belonged to his Chevrolet Tahoe.

According to defendant, the state failed to meet its burden of proving that defendant knew he was driving a stolen vehicle. Defendant concedes 1 ;ithat the state proved that the vehicle was stolen and that defendant was driving it, but that the state failed to disprove defendant’s statement to Officer Searcy that he got it from a friend.

The decision of the U.S. Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), expanded appellate review of facts in state court criminal cases. The Jackson decision did away with Louisiana’s “no evidence” standard because it did not adequately protect due process guarantees. The Jackson court held that the proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2792-93. Having been fully implemented by the Louisiana Supreme Court and legislatively enacted in La. C. Cr. P. art. 821, the Jackson reasonable doubt standard is now the only standard of review of facts for Louisiana appellate courts. State v. Brown, 43,916 (La.App. 2d Cir.02/25/08), 4 So.3d 301; State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 86 (Lemmon, J, concurring).

In the instant case, the evidence shows that defendant was present at the car dealership immediately before the vehicle was taken, arousing the suspicions of Lloyd Nelson. Shortly after defendant left, another employee of the dealership reported the truck missing and stated “that Mexican dude” |4had taken it. Approximately an hour after Nelson reported the vehicle missing it was located, with a stolen license plate attached, on 1-20 in Greenwood, Louisiana, near the Texas state line; defendant was driving the truck and there was no one else in the vehicle.

The essential elements of unauthorized use of a motor vehicle, La. R.S. 14:68.4, are: (1) the intentional taking or use (2) of a motor vehicle (3) which belongs to another (4) without the other’s consent or by fraud. Defendant’s self-serving statement to the arresting officer that he borrowed it from a friend was supported by no other evidence. A rational trier of fact could have found the evidence of guilt beyond a reasonable doubt to be overwhelming.

Habitual Offender

Defendant argues that the hearing on the habitual offender bill of information was untimely and the bill of information should have been quashed as a result.

Louisiana Code of Criminal Procedure article 874 provides that sentence shall be imposed without unreasonable delay. Although La. R.S. 15:529.1 does not prescribe a time within which a habitual offender bill must be filed, the supreme court has determined that the district attorney must file the habitual offender bill within a reasonable time. State v. Muhammad, 03-2991 (La.05/25/04), 875 So.2d 45; State v. Toney, 02-0992 (La.04/09/03), 842 So.2d 1083. In State v. McQueen, 308 So.2d 752, 755 (La.1975), the supreme court found that a multiple offender bill must be filed within a reasonable time after the necessary information is available to |fithe appropriate district attorney. The court in McQueen noted that an important factor to consider in determining whether a bill is filed timely requires an analysis of when the district attorney acquired the knowledge that defendant is a multiple offender. Id. Furthermore, the determination of whether the habitual offender hearing is held within a reasonable time hinges on the facts and circumstances of the specific case. State v. Toney, 842 So.2d at 1086.

In State v. Toney, supra, the Louisiana Supreme Court held that a 17-month delay between the filing of a habitual offender bill of information and the hearing on the bill was not an unreasonable delay because nothing in the record suggested that the continuances were unjustified, and the defendant was not caught by surprise because the habitual offender bill of information was filed on the day of his sentencing.

In 2004, the Louisiana Supreme Court went so far as to say that a multiple offender adjudication could be timely even if the defendant had finished serving his sentence for the underlying felony. State v. Muhammad, supra. In determining whether habitual offender proceedings are timely, in addition to consideration of the facts and circumstances of the instant case, the relevant speedy trial factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), may also be a consideration: length of the delay, reasons for the delay, defendant’s request for a speedy trial, and prejudice to the accused. State v. Muhammad, supra.

In the instant case, defendant was initially sentenced on September 22, 2006, to 10 years at hard labor following the jury’s verdict. A habitual | (¡offender bill of information was filed by the district attorney that same day. The hearing on the habitual offender bill of information was continued several times: on November 7, 2006, December 7, 2006, February 23, 2007, April 18, 2007, June 13, 2007, and July 30, 2007. In the interim, defendant filed several motions, including one for discovery and to appoint new counsel. On May 30, 2008, the defense filed a motion to quash the habitual offender bill. The hearing was held on June 3, 2008, and the motion to quash was denied. The court found defendant to be a second felony habitual offender and sentenced him to 20 years imprisonment at hard labor.

Defendant was serving his 10-year sentence the entire time and had not finished serving it at the time the hearing was held. The factors to be considered in determining whether this hearing occurred within a reasonable time are: (1) the length of the delay — in this case, 20 months; (2) the reasons for the delay — in the instant case, defendant had used approximately 29 aliases in the past and had multiple birth dates and social security numbers associated with his name(s), creating difficulty in sorting through prior convictions and criminal records to determine what his status as an offender actually was; (3) request for speedy trial — defendant made no requests for a hearing on the habitual offender bill of information and was in fact filing motions and seeking discovery during the delay; and, (4) prejudice to the accused — defendant was not prejudiced. The bill was timely filed, and, under these circumstances, the delay for the adjudication hearing was not unreasonable.

| tExcessive Sentence

During the original sentencing, the trial court reiterated the facts of the case in detail. The court found several names, birth dates and social security numbers associated with defendant in the criminal record check.

At the second felony habitual offender proceeding, the trial court did not repeat the same information given above; however, the court did state that it had received rap sheets from Florida, Texas, Nevada and Louisiana in which defendant had multiple aliases, birth dates, birth states, and physical descriptions.

This sentence does not shock a sense of justice nor is it grossly out of proportion to the crime.

Pro Se Claim of Ineffective Assistance of Counsel

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App. 2d Cir.09/26/07), 966 So.2d 139, writ denied, 07-2190 (La.04/04/08), 978 So.2d 325.

In the instant case, defendant has raised multiple claims for ineffective assistance which would be better considered on an application for post-conviction relief where an evidentiary hearing can be held to determine the merits of each claim.

| JPro Se Claim that the Bill of Information Charged Wrong Essential Element of Offense

The amended bill of information filed September 18, 2006, states that on or about May 16, 2006, defendant “did intentionally take and use a movable, to wit: 2006 CHEVY SILVERADO, which belongs to RED RIVER CHEVROLET, without the consent of the owner thereof.” La. C. Cr. P. art. 463 establishes the basic form for a bill of information.

The amended bill of information in this case conforms to the form requirements set forth in La. C. Cr. P. art. 463.

Pro Se Claim of Erroneous Instructions and Responsive Verdicts on Lesser included Offenses

Defendant argues that the court erred in not advising the jury that defendant could have been convicted of theft and attempted theft as a lesser-included offense of unauthorized use of a motor vehicle.

Theft, defined in La. R.S. 14:67, contains the essential element of “intent to deprive,” which is expressly not contained in the language for unauthorized use of a motor vehicle under La. R.S. 14:68.4. Theft is not a lesser-included offense of unauthorized use of a motor vehicle.

|flPro Se Claim of Erroneous and Improper Jury Instructions, Prosecutorial Misconduct and Violation of Confrontation Clause

Defendant asserts that the trial court’s permitting the witness, Lloyd Nelson, to testify to the statement made by Theron Colston after the vehicle was stolen was “prosecutorial misconduct,” as well as a denial of the right to confront a witness.

Louisiana Code of Evidence Article 802 establishes that hearsay is not admissible except as otherwise provided by the Code. Hearsay is “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C).

The statement admitted into evidence in this case was made by Theron Colston, an employee of Red River Chevrolet to Lloyd Nelson. Colston did not testify. Lloyd, however, testified that Colston said, “That Mexican dude that was just in the showroom jumped in a truck and took off.” An objection was made by the defense; however, the state argued that the statement was being introduced not to prove the truth of what was said, but to explain why Nelson called the police and initiated the use of OnStar. If an out-of-court statement is not offered to prove the truth of the words spoken, it is not hearsay and is admissible, subject to rules regarding relevancy. Further, this was a spontaneous declaration related to a startling event and would qualify as an excited utterance exception to the hearsay prohibition. La. C.E. art. 803(2).

U(]Pro Se Claim of a Plea Agreement and the Trial Court’s Abuse of its Discretion in Rejecting Defendant’s Guilty Plea and Forcing Him to go to Trial

Defendant argues that the trial court wrongfully refused to accept his plea of guilty and forced him to go to trial.

There is no evidence of a plea agreement in the record save a mention by the trial court during sentencing of the court’s refusal to accept a plea agreement earlier in the proceedings. There is no mention of a plea agreement in the trial court minutes. There is no indication that a contemporaneous objection was made to the trial court’s refusal to accept the plea agreement, nor is there any indication that any agreement between the state and defendant was reached. Even if such had occurred, the fact that the trial court refused to accept the alleged agreement prevents either party from claiming the other side has breached the agreement.

In his pro se brief, defendant claims that the trial court rejected an agreement to an 18-month sentencing cap. It is clear that the trial court has the plenary power to accept or reject a limitation on its sentencing authority. See State v. Crosby, 338 So.2d 584 (La.1976), and its progeny.

Conclusion

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

      . “In the (Here state the name of the court.) On the_day of_, 19 — . State of Louisiana v. A.B. (Here state the name or description of the accused.).
      X.Y. District Attorney for the Parish of_, charges that A.B. (Here state the name or description of the accused.) committed the offense of_, in that (Here set forth the offense and transaction according to the rules stated in this Title. The particulars of the offense may be added with a view to avoiding the necessity for a bill of particulars.) contrary to the law of the State of Louisiana and against the peace and dignity of the same.’’ La C. Cr. P. art. 463.