author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Bobby WALLACE, Jr. and Glenn Young, Appellant.
    No. 46,422-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      Louisiana Appellate Project, Monroe, LA, by Peggy J. Sullivan, for Appellant, Bobby Wallace, Jr.
    Bobby Wallace, Jr., Pro Se.
    Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant, Glenn Young.
    Glenn Young, Pro Se.
    Charles Rex Scott, II, District Attorney, Brian Harrist Barber, Jason Trevor Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   DREW, J.

| defendant Bobby Wallace, Jr., was convicted of possession of Schedule II CDS, over 28 grams but less than 200 grams of cocaine, a violation of La. R.S. 40:967(F)(l)(a). He was adjudicated a third felony habitual offender and sentenced to life imprisonment at hard labor without benefit of suspension of sentence, probation, or parole. Wallace was acquitted of illegal use of weapons, La. R.S. 14:94(A) and (B).

Defendant Glenn Young was convicted of possession of Schedule II CDS, over 28 grams but less than 200 grams of cocaine, a violation of La. R.S. 40:967(F)(l)(a). He was adjudicated a third felony habitual offender and sentenced to serve 50 years at hard labor, all without benefit of suspension of sentence, probation, or parole.

Young was also convicted of illegal use of weapons, a violation of La. R.S. 14:94(A) and (B), and sentenced to a concurrent 50 years at hard labor, all without benefits.

Both defendants appeal. We affirm all convictions, as well as the sentence imposed upon Wallace. We amend and affirm Young’s sentence for his drug conviction, eliminating any parole restriction after the initial five years of his sentence. Young’s sentence for illegal use of weapons far exceeds his statutory exposure, so we must vacate that séntenee and remand.

FACTS

The charges against these men arose when a feud between present and former gang members led to gunfire on the streets of Shreveport.

One of the victims, Marcus “Donut” Thomas, testified that:

• as a youth in the early 1990s, he had been a member of the Shreveport “Rollin 60s” street gang associated with the Crip gang faction;
|⅞* he has a long criminal history;
• he first went to prison in 1992 for illegal use of weapons;
• he left the gang lifestyle in the mid-1990s when released from prison;
• he remained acquainted, however, with many gang members;
• the defendants and many of Donut’s family were gang members;
• bad blood developed between him and the gang when he refused to “take a charge” for Stevie Young, the first cousin of defendants;
• Stevie Young was convicted of the referenced drug offense and sentenced to serve 24 years in federal prison;
• he (Donut) feared retaliation from the Young/Thomas families;
• on April 30, 2007, he and his girlfriend, Linnear Jordan, and her daughter went to the Quick Pack grocery store in Shreveport;
• the three of them entered the store;
• inside was Greg Young, Rollin 60s member, a cousin of defendants;
• he and Greg began arguing, which almost led to physical violence;
• Greg refused to fight, driving from the store with another man;
• as he (Donut) drove down David Raines Road near Victor Street, shots came from a group of men who were standing beside the road;
• several bullets hit the SUV;
• he sped off as his girlfriend successfully protected her child;
• despite the hail of bullets, no one in his SUV was hit;
• when questioned by Shreveport Police Department (“SPD”) officers, he first identified only Greg Young and Bobby Wallace as the shooters, but later added Glenn Young as a shooter;
Is*he attributed this discrepancy to the immediate trauma of the event;
• he could not recall what type of guns the other men had; and
• he told the SPD that Wallace and both Youngs lived on Hattie Street.

Police executed a search warrant for the house on May 7, 2007.

Five people were inside the Hattie Street house at the time of the search: Kendra Young (Glenn Young’s sister), Anthony Wallace, Calvin Elie, defendant Bobby Wallace, Jr., and defendant Glenn Young. Police Mirandized all subjects and took them outside during the search.

The SPD recovered a plastic Baggie from under the cushions of the couch in the front room. It contained just over 31 grams of powder cocaine. No fingerprints could be found on the Baggie.

The officers looked into a kitchen cabinet and found a box of small sandwich bags, an open box of baking soda, a package of batteries, and a Glock .40-caliber handgun. Subsequent testing proved that this was the handgun from which the spent casings at the scene had been fired.

Also found in the kitchen was a digital scale of a type commonly used for weighing drugs for resale. Investigators found on the scale the fingerprint of defendant Bobby Wallace, Jr. The police also seized Cingular ^telephone invoices bearing Glenn Young’s address at that location.

As the officers were about to transport the suspects to jail, Kendra Young, responding to urging from these two defendants, initially told them that “everything belonged to her.” SPD investigator Lee Scott asked Ms. Young whether she claimed the crime that went along with the gun, and she quickly changed her story to assert that the items belonged to Calvin Elie.

All occupants were charged with possession of cocaine over 28 grams but less than 200 grams. Glenn Young and Wallace were also charged with illegal use of weapons. The two men were tried together on both charges.

Calvin Elie pled guilty to possession of cocaine in January 2008. In exchange for his testimony against the other defendants, he received a two-year probated sentence. At the defendants’ trial, he testified that:

• he was sleeping in a back room with Wallace when the police arrived;
• despite his previous guilty plea, he denied that the drugs were his;
• he previously heard Glenn Young say that he needed a “Reggie”;
• he was unaware of any drug dealing at the Hattie Street residence;
• the digital scales did not belong to him;
• he did not know of the shooting and did not live with the Youngs; and
• despite physical signs of drug abuse, he denied being a drug user.

A variety of police witnesses and forensic experts testified and explained that the lack of additional shell casings at the scene of the | sshooting could be attributed to the use of revolvers — which do not automatically eject spent casings — or the use of “shell catchers.” Thomas said at trial that three of the four men fired at him. Elie did not.

The defendants chose to testify on their own behalf.

Glenn Young told the jury that:

• he lived on Hattie Street with Kendra Young and with Calvin Elie;
• he had prior convictions in 2002 for possession of crack cocaine and for indecent behavior with a juvenile;
• he was not employed at the time of the shooting;
• he had never been a member of the Rollin 60s street gang;
• he was at home with his sister when he heard the shooting;
• when the SPD executed the warrant, he was asleep in the back room;
• Elie was asleep on the sofa in the front room when the police came;
• Wallace was there to drive Kendra Young’s child to school;
• he had never before seen the Glock handgun seized from his kitchen, nor did he know how the weapon came to be there;
• he denied any knowledge of the drugs found in the sofa;
• he “couldn’t recall” whether he had asked his sister to take the charges for the items found in the house; and
• he denied knowing that the scale was in the house.

Bobby Wallace testified that:

• he was in the Rollin 60s until his manslaughter conviction at age 16;
• he left the gang when he was released from custody in 1996;
• he knew nothing of the shooting or the drugs at the Youngs’ home;
|r,* at the time of the shooting, he was at his uncle’s girlfriend’s house;
• he was on probation for a felony drug conviction at the time;
• his probation was due to end the day after the warrant was executed;
• Donut had always been an habitual liar;
• he did not understand why Donut would lie about the shooting;
• he knew nothing of any words that day between Donut and Greg;
• Elie was a drug addict who lived at the Hattie Street address because his family had thrown him out due to his drug problem;
• at the time the warrant was served, he was only at the Hattie Street residence to pick up Kendra’s child to take her to Head Start;
• Elie was asleep on the couch when he arrived, and he (Wallace) was in the back of the house when the police entered the home;
• he knew nothing about the gun or scale seized that day;
• his fingerprint on the scale was entirely innocent;
• he touched the scale at his grandmother’s house the day before, at which time he had told his cousin Marquae to get rid of the scale;
• after he was arrested, SPD investigator Scott unsuccessfully attempted to drop the bag into Wallace’s open hand; and
• he denied asking Kendra Scott to “take the charges.”

Marquae Wallace, cousin of Bobby Wallace, testified that Bobby had touched the digital scale at a location away from the Hattie Street address the day before the warrant was executed. He explained that after Bobby touched the scales, he (Mar-quae) left Bobby and then met Calvin Elie on the street. Marquae said that Elie had a bag of powder cocaine, which Elie identified as the same bag seized by police from the Young residence, so the |7two of them went to his cousin Kendra’s house (the Hattie Street address) and used some of the powder cocaine. Marquae said that he left the scales on the kitchen counter and forgot about them.

A jury convicted both men of possession of over 28 grams but less than 200 grams of cocaine. The jury convicted Glenn Young of illegal use of a weapon but acquitted Bobby Wallace of that charge.

The state filed habitual offender bills against both men. In due course, they were each adjudicated as a third felony offender.

The defendants filed a motion for new trial, citing inconsistencies in the testimony of two of the state’s witnesses. The trial court denied the motions in open court and immediately sentenced the defendants.

Wallace was sentenced to a mandatory life sentence at hard labor without benefits.

Young, convicted on both charges, was sentenced to serve 50 years without benefits on each. The sentencing range for his drug offense, after adjudication as an habitual offender, was 20 to 60 years at hard labor, with only the first five years to be served without benefits. The court took careful consideration of the factors under La. C. Cr. P. art. 894.1 before sentencing.

Young received the same 50-year -concurrent sentence for his conviction for illegal use of weapons, which sentence exceeds his exposure of two years, with or without hard labor. We vacate the sentence for that lsoffense only, and remand for resentencing.

DISCUSSION

Sufficiency

Our law is well settled as to reviewing convictions for sufficiency of the evidence.

Young argues that his conviction for illegal use of weapons must be reversed. He cites inconsistencies in Thomas’s testimony, including his varying recollection of the number of people who were shooting at him, 19despite the finding of only six spent shell casings fired by a single weapon. Further, Young notes that no fingerprints were found on the seized gun and that he never had possession of the gun at the time of seizure.

La. R.S. 14:94 provides, in pertinent part:

A. Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
B. Except as provided in Subsection E, whoever commits the crime of illegal use of weapons or dangerous instrumentalities shall be fined not more than one thousand dollars, or imprisoned with or without hard labor for not more than two years, or both.

Unquestionably there are internal and external variations in Thomas’s testimony and his reports to the police, and the physical evidence did not conclusively prove that more than one person fired at Thomas’s vehicle. Nevertheless, the jury saw photos of that vehicle and the damage that was unquestionably caused by a fusillade of bullets. Further, the .40-caliber handgun retrieved from Young’s house was proven to be the weapon that marked the shell casings left behind at the scene of the shooting. Thomas specifically identified Glenn Young as one of the three shooters and described the type of weapon being used by Young.

The jury chose to believe Thomas and to disbelieve Glenn Young as to Young’s participation in the crime. As regards Young, Thomas’ testimony had little internal contradiction and bore no irreconcilable conflict with the physical evidence seized from Young’s house. The evidence is sufficient to convict Glenn Young of illegal use of a weapon.

| inBoth Young and Wallace argue that the evidence is insufficient to prove that they were in possession of the drugs found in the Youngs’ house. Essentially, they argue that they were merely present in the house, were not in close proximity to the drugs (or related paraphernalia) when police arrived to execute the warrant, and that some of the evidence showed that Calvin Elie, a known drug user, was sleeping in close proximity to the location where the drugs were found.

The legal analysis for appellate review of possession cases is well settled.

The jury was faced with a wide array of often contradictory testimony about these factors relevant to the possession of the narcotics. The evidence proved that the drugs were found in the house shared by defendant Young, his sister, and perhaps Calvin Elie, who had pled to possession of the Indrugs. The bag of drugs did not bear any fingerprints; it was found under a couch in the main room, easily accessible by anyone.

Although there was testimony that Elie was sleeping on this couch just prior to the entry of the police, he denied being there. The jury had the opportunity to observe him, a witness who exuded the appearance and demeanor of a crack addict, and the evidence supports the conclusion that the seldom employed and homeless Elie was not the only person with a connection to this significant quantity of cocaine.

Elie explained that he had heard Glenn Young say that he needed a “Reggie,” which corresponds with the 81 grams of powder cocaine found in the couch. Moreover, only Wallace’s fingerprint was found on the digital scale, which was located in the kitchen cupboard near the gun, plastic bags, baking soda, and batteries. Wallace admitted that this type of scale was often used to weigh drugs. His thin explanation as to how his fingerprint came to be on the scale was dubious. Both defendants implored Kendra Young to, in effect, “take the charges.” Viewed in the light most favorable to the state, the evidence was sufficient to prove beyond a reasonable doubt that defendants were in constructive possession of drugs.

Wallace Sentencing: Trial court erred in not departing downward from the life sentence, in failing to specify which conviction was used to enhance the sentence, and in noncompliance with La. C. Cr. P. art. 894.1

This third felony conviction brought Wallace under the ambit of La. 112R.S. 15:529.1(A)(l)(b)(ii), which requires such a drastic sentence. The record does not reflect that Wallace filed a motion to reconsider sentence or formally requested a downward departure from the mandatory life sentence.

Our law is well settled relative to the review of a sentence where no motion to reconsider is filed.

Wallace argues that his is the rare case when a mandatory minimum sentence is excessive. He cites his testimony of leaving gang life and that people now call him “Preach,” because he counsels others to stay straight.

This record is sufficient to conclude that the life sentence is not excessive so as to consider any departure from the legislative mandate. Wallace was on probation at the time the police executed the warrant, yet he freely associated with a known crack addict. He was engaged in illicit activity with Glenn Young at Young’s residence. After Wallace’s arrest, he implored Kendra Young to take the charges for the items found in the house and, at trial, he proffered a preposterous story about (among other things) a 1 ^police effort to put his fingerprints on the drug evidence. This sort of conduct does not suggest that a downward departure is warranted.

He argues, without merit, that this record does not show which conviction was enhanced through the habitual offender proceedings. This is a simple inquiry, as he was convicted here only on the one drug offense.

Wallace attacks the unarticulated reasons for sentencing, in violation of La. C. Cr. P. art. 894.1. Such articulation is unnecessary where a sentence is mandated by law. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

Young’s Sentences: Claims of Excessiveness

Young argues that his 50-year hard labor sentence, all without benefits, is excessive. His attorney made a detailed and impassioned plea for the minimum sentence, and after the imposition of sentence, he filed a motion to reconsider sentence, expressing the same arguments. The trial court denied that motion, citing reasons surrounding the commission of the illegal use of a weapon offense.

La. R.S. 40:967(F)(l)(a) provides:

(a) Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.

At the time of the offense, La. R.S. 15:529.1(A)(l)(b)(i) provided, in part:

(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term |14less than his natural life then: (i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction[.]

Neither of these sections restricts the offender’s right to parole.

La. R.S. 40:967(G), however, provides:

G. With respect to any person to whom the provisions of Subsection F are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection F.

The potential sentence for a basic violation of La. R.S. 40:967(F)(l)(a) is from 10 to 30 years at hard labor. By operation of the applicable habitual offender law, the enhanced sentence must be for a term of at least 20 years but not more than 60 years at hard labor, without benefits only for the first five years.

The district court was without authority to order that Young’s entire sentence be served without benefit of parole. Accordingly, this court amends Young’s sentence to maintain the 50 years at hard labor, but requiring only the first five years to be served without benefit of suspension of sentence, probation, or parole.

The trial court engaged in a thorough examination of the factors enumerated in La. C. Cr. P. art. 894.1, noting that Young was convicted of illegal use of a weapon at the same trial as for his drug offense. The court cited the extremely dangerous nature of his conduct, his gang membership, and the serious nature of his previous convictions, one of which involved |1Bdrugs. Worse, the instant drug offense was committed in the presence of a child and an unsecured, loaded weapon.

The trial court’s sentence was appropriate for Young’s drug offense, but any restriction on parole beyond the five years allowed is illegal.

Confusion over which conviction was enhanced for Young’s sentence

There is none. The habitual offender bill clearly specifies that Young’s third offense was the instant drug conviction. Young argues that the trial court improperly sentenced him to serve 50-year hard labor concurrent sentences on both of his convictions. We agree.

The weapons charge was not multi-billed, leaving maximum exposure for violation of La. R.S. 14:94(A) and (B) to be two years at hard labor.

We remand this case for the imposition of a lawful sentence.

Lack of written reasons for adjudication per La. R.S. 1S:529.1(D)(3)

Both defendants complain of the trial court’s noncompliance with La. R.S. 15:529.1(D)(8), which requires, inter alia, that the court provide written reasons for its determination that an offender is an habitual offender. In this case, the trial court did not issue written reasons, but the error is harmless because the transcripts of the habitual offender proceedings show clear oral reasons and the sufficiency of the evidence presented. State v. James, 41,069 (La.App.2d Cir.8/23/06), 938 So.2d 1191.

Immediate sentencing after denial of motions for new trial without a waiver of the required 24-hour delay between denial and sentencing

Both defendants argue that the trial court committed reversible error by sentencing without observing the 24 hour delay required by La. C. Cr. P. |1fiart. 873. Although it is true that the defendants did not waive the delays prior to the imposition of sentence, vacation of the sentences is not mandatory, as this is harmless error, with no prejudice shown. State v. White, 404 So.2d 1202 (La.1981); State v. Bobo, 46,225 (La.App.2d Cir.6/8/11),-So.3d -.

DECREE

We affirm the convictions of each defendant.

We affirm the life sentence imposed upon Wallace for the enhanced drug conviction.

We amend Young’s 50-year hard labor sentence on the enhanced drug conviction, so as to deny parole only for the first five years of the sentence. As amended, we affirm Young’s sentence for possession of the drugs.

We vacate Young’s sentence relative to his conviction for illegal use of a weapon, and we remand that matter for resentenc-ing.

      . His convictions include two felonies and several misdemeanors.

      . Witnesses said they heard about six shots. SPD officers retrieved six spent .40-caliber shell casings from the area where the shooters had been standing.

      . His story as to the number of assailants varied as the investigation progressed, according to SPD detectives. He never alleged that a fourth person, "Little Cal,” actually shot at him.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Thirty-one grams of cocaine, with a street value of about $700, is known in street parlance as a "Reggie,” relating to the jersey number of former Indiana Pacer star Reggie Miller.

      . Although police also found an SKS rifle in a vehicle outside the house, no evidence tied the rifle to the shooting.

      . Police found a bag of marijuana next to the scale, but because the marijuana charge was not being pursued during this trial, the court excluded that evidence and, apart from inadvertent mentions by witnesses, the jury was not aware of its discovery.

      . A review of Elie's testimony as a whole reflects that of an unsophisticated and mentally slow drug abuser. A later police witness described Elie as physically appearing to be a crack user (his teeth and skin were in poor condition) and "simple.” The officer explained that a crack user like Elie would likely not have possession of such a large quantity of cocaine nor would he be likely to have powder cocaine because crack users typically do not use the powder form.

      . Kendra Young is Glenn Young’s sister.

      . Young testified that Elie, his first cousin, had lived with him for the seven months since his grandmother kicked him out of her house for drug usage.

      . This allegation is bitterly denied by the investigator.

      . The two predicate felony convictions for Wallace's adjudication were manslaughter and possession of Schedule I CDS with the intent to distribute.

      . Young’s two predicate felony convictions for his adjudication were indecent behavior with a juvenile and simple possession of a Schedule II CDS.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs

        denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,-032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

      . To support a conviction for possession of a controlled dangerous substance, the state must prove the defendant was in possession of the illegal drug and that he knowingly possessed the drug. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987. The state need not prove that the defendant was in physical possession of the drugs found; constructive possession is sufficient to support a conviction. State v. Toups, 2001-1875 (La.10/15/02), 833 So.2d 910. Constructive possession is defined as having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. Mingo, 42,407 (La.App.2d Cir.9/19/07), 965 So.2d 952; State v. White, supra. The mere presence of a person in the place where contraband is found or the mere association with another person possessing contraband is not sufficient to prove constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Brown, 42,188 (La.App.2d Cir.9/26/07), 966 So.2d 727, writ denied, 2007-2199 (La.4/18/08), 978 So.2d 347.
      Guilty knowledge is an essential element of a possession charge, and such knowledge may be inferred from the circumstances. State v. Toups, supra; State v. Robbins, 43,129 (La.App.2d Cir.3/19/08), 979 So.2d 630. A determination of whether the defendant was in possession depends on the "peculiar facts” of each case, which may include the following: (1) the defendant’s knowledge that the contraband is in an area; (2) his relationship with the person found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug use; and (5) the defendant’s physical proximity to the contraband. Id. Further, a defendant may have constructive possession if he willfully and knowingly shares the right to control the contraband with another. Id.

      . Elie explained, in effect, that this was a "best interest” plea, to get out of jail.

      . Scientific testimony proved that this gun fired the recovered bullet hulls.

      . The nature of his prior offenses mandated a life sentence upon adjudication. The lesser nature of Young's prior offenses did not expose him to this fate.

      . When a defendant fails to timely file a motion to reconsider sentence under La. C. Cr. P. art. 881.1, the appellate court’s review is limited to the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158.
      Although the Louisiana Supreme Court has held that courts have the power to declare a mandatory minimum sentence excessive under Art. I, § 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.
      The mandatory life sentences the habitual offender law requires are presumptively constitutional and should be accorded great deference by the judiciary. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.4/4/03), 840 So.2d 1213.

      . La. C. Cr. P. Art. 873:
      If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in the article or pleads guilty, sentence may be imposed immediately.

      . The sentence cannot exceed two years, with or without hard labor.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Gwendolyn JONES and Sandra Durbin, Plaintiffs-Respondents v. RUSTON LOUISIANA HOSPITAL COMPANY, L.L.C. d/b/a Northern Louisiana Medical Center a/k/a Lincoln General Hospital, et al., Defendant-Applicant.
    Nos. 46,356-CW, 46,202-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      Stamey & Miller, Natchitoches, LA, by J. Mark Miller, for Plaintiffs-Respondents.
    Blue Williams, L.L.P., by Kurt S. Blankenship, Metairie, LA, Christopher G. Ot-ten, Mandeville, LA, for Defendant-Applicant.
    Before GASKINS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| iThis court granted a writ and docketed this matter for consideration after reviewing the application for supervisory writ of the defendant, Ruston Louisiana Hospital Company, L.L.C., d/b/a Northern Louisiana Medical Center (the “NLMC”). The Third Judicial District Court, Parish of Lincoln, denied the exception of prematurity filed by the NLMC in response to the petition of plaintiffs, Gwendolyn Jones and Sandra Durbin. For the following reasons, we affirm the trial court’s judgment.

Facts

Gwendolyn Jones and Sandra Durbin, as the sole surviving heirs of their father, Agnes J. Liles, filed suit against the NLMC for damages arising out of its alleged failure to abide by Liles’ “Do-Not-Resuscitate” (“DNR”) order, which was on record with the defendant. According to the original and amended petitions, Liles was admitted into the NLMC for medical treatment on July 10, 2009, and on July 16, 2009, he went into cardiac arrest. Despite the NLMC’s knowledge of the DNR order, employees of the hospital resuscitated Liles, who suffered physical limitation and disabilities requiring rehabilitation until his ultimate death two months later on September 25, 2009.

Plaintiffs asserted claims for the medical expenses attributable to his post-resuscitation care, physical and mental pain and suffering, loss of enjoyment of life and cognitive decline. They also asserted a claim for bystander recovery. Simultaneous to the trial court filing, plaintiffs also filed a request for a medical review panel with the Louisiana Patients’ Compensation Fund. In response, the NLMC filed an exception of 12prematurity in the trial court arguing that as a qualified healthcare provider under the Louisiana Medical Malpractice Act (“MMA”), La. R.S. 40:1299.41, et seq., it was entitled to have plaintiffs’ claims against it reviewed by a medical review panel prior to the institution of litigation. The plaintiffs, relying on this court’s opinion in Terry v. Red River Center Corp., 37,991 (La.App.2d Cir.12/10/03), 862 So.2d 1061, writ denied, 2004-0094 (La.03/19/2004), 869 So.2d 856, opposed the exception arguing that the conduct complained of by plaintiffs in their petition, ie., failure to abide by a DNR order, did not fall under the MMA. After a hearing, the exception was overruled by the trial court. The NMLC sought supervisory review of the trial court’s judgment.

Discussion

Under Louisiana’s MMA, a medical malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel. La. R.S. 40:1299.47(A); LaCoste v. Pendleton Methodist Hosp., L.L.C., 2007-0008 (La.09/05/07), 966 So.2d 519. This exception is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for consideration by a medical review panel before filing suit against the provider. La. C.C.P. art. 926; LaCoste, supra. The burden of proving prematurity is on the exceptor. Id.

The MMA applies only to “malpractice” as defined by the statute; other tort liability on the part of a qualified health care provider is governed Rby general tort law. Coleman v. Deno, 2001-1517 (La.01/25/02), 813 So.2d 303. The Louisiana Supreme Court has set forth six factors which determine whether a claim sounds in medical malpractice and must first be presented to a medical review panel. Coleman, supra at 315-16. Those factors are:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and,
(6) whether the tort alleged was intentional.

In Terry, supra, we considered the issue of whether a nursing home’s failure to abide by the DNR order of one of its residents was actionable under the Nursing. Home Residents’ Bill of Rights (“NHRBR”), La. R.S. 40:2010.8, et seq., or whether the procedure under the MMA would be applicable. In Terry, employees of the nursing home found a resident unresponsive to stimulation, and in opposition to a DNR order on record, the employees instituted efforts to revive the resident. Subsequently, the resident’s life support was discontinued and the resident died.

The deceased’s heirs brought suit under the NHRBR, alleging that the nursing home had failed to abide by the DNR order causing the deceased |4and plaintiffs to suffer damages. The defendant filed an exception of prematurity contending that the matter should go before a medical review panel before the institution of litigation because such matters are covered under the MMA. The trial court in Terry agreed with the defendant nursing home and sustained the exception.

In reversing the trial court, this court expressly stated that it made “no determination of whether [the conduct] falls under the ambit of the MMA.” Terry, supra at 1064. However, the Terry court went on to apply the test set forth in Coleman, reasoning that the claim would not be subject to the MMA for the following reasons:

Our analysis of the facts of this case leads us to conclude that the problems [the deceased] experienced were not “treatment related” because the problems came as a result of [the nursing home’s] failure to abide by [the deceased’s] wishes not to be resuscitated by CPR. The fact that they “treated” her after they negligently acted does not bring this case under the MMA. Secondly, the directive stated that [the nursing home] was not to perform CPR, and it is clear that it is not necessary to have a medical expert to determine whether the directive was ignored. There is no evidence to support the idea that [the nursing home’s] failure to abide by [the deceased’s] wishes came as a result of an assessment of her condition. There is no dispute that nursing homes are covered under the MMA, but we are not deciding whether [the nursing home] performed a medical task and fell below the standard of care. Lastly, the plaintiffs do not contend that an intentional tort occurred; therefore, the sixth factor is inapplicable to this matter.

In reaching this conclusion, the Terry court was guided by the Louisiana Supreme Court’s decision in Richard v. Louisiana Extended Care Centers, Inc., 2002-0978 (La.01/14/03), 835 So.2d 460, from which it quoted the following:

While clearly an act of malpractice can occur in the rendition of professional services, the patient must still be in | Bthe process of receiving “health care” from the doctor or hospital when the negligent rendition of professional services occurs. This means that the act or omission must have occurred “during the patient’s medical care, treatment or confinement.” [Citation omitted].

Richard, supra at 468.

Although Terry is not precisely on point, it is certainly analogous to this case. In Terry, as in this case, the precise action of disregarding a DNR order was the issue. Therefore, for the reasons noted in Terry, we conclude that the actions by the nursing personnel in failing to honor the DNR order were not covered under the MMA as medical malpractice, but instead should be governed by Louisiana negligence principles of law. The plaintiffs lawsuit was not premature, and the trial court was not in error in so finding.

Conclusion

For the foregoing reasons, the judgment of the trial court denying the exception of prematurity filed by the defendant, Ruston Louisiana Hospital Company, L.L.C’, d/b/a Northern Louisiana Medical Center, is affirmed. Costs of this proceeding are assessed to the defendant. As stated in the trial court’s judgment, this matter will now proceed in the Third Judicial District Court for the Parish of Lincoln, Louisiana.

AFFIRMED.


text:
    Lisa FORD, Plaintiff-Appellant v. HOUSE OF RAEFORD, Defendant-Appellee.
    No. 46,454-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      Brian & Sylvester, Natchitoches, LA, by Russell L. Sylvester, for Appellant.
    Nelson, Zentner, Sartor & Snellings, LLC, Monroe, LA, by George M. Snell-ings, IV, for Appellee.
    Before STEWART, GASKINS, and DREW, JJ.
   DREW, J.

| ,In this workers’ compensation proceeding, Lisa Ford obtained relief on some of her claims for penalties and attorney fees. She now appeals the denial of her other claims for penalties and attorney fees, as well as the amount of attorney fees awarded on her successful claims.

FACTS

Lisa Ford was employed as a line leader at a chicken plant operated by House of Raeford (“Raeford”). Her job required her to lift boxes weighing between 40 and 70 pounds.

It is undisputed that Ford was injured at work when she fell down stairs on January 8, 2009. She continued working until March 18, 2009. On March 19, 2009, her physician restricted her from work because of the injury, and Raeford received notice of this restriction. Ford’s attorney wrote to Raeford on April 6, 2009, demanding that it institute workers’ comp benefits. Ford received her first payment of temporary total disability benefits from Raeford, which was self-insured, on April 7, 2009.

Ford sought penalties and attorney fees from Raeford. She alleged that these were due because Raeford: (i) was late in making the initial payment of indemnity benefits; (ii) untimely paid or never paid subsequent indemnity benefits; (iii) failed to provide copies of medical reports from Raeford’s doctor; and (iv) failed to timely authorize additional medical treatments, namely a discogram and a second MRI.

The WCJ found that the initial installment of indemnity benefits was received four days late; it assessed a penalty of $200 and awarded an 12attorney fee of $200 for this delinquent payment. The WCJ also assessed a penalty of $200 and attorney fee of $250 for Raeford’s failure to provide copies of the medical reports. The WCJ denied Ford’s claims for penalties and attorney fees for the denial of medical treatment and the alleged untimely payment or nonpayment of indemnity benefits.

Ford has appealed the denial of penalties and attorney fees as well as the amount of attorney fees that were awarded.

DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Dean v. Southmark Constr., 2003-1051 (La.7/6/04), 879 So.2d 112; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. To reverse a factfinder’s determination under this standárd of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993). Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even Isthough convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. When there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Winford v. Conerly Corp., 2004-1278 (La.3/11/05), 897 So.2d 560.

The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact. Authement v. Shappert Engineering, 2002-1631 (La.2/25/03), 840 So.2d 1181.

Payment of indemnity benefits

La. R.S. 23:1201(A)(1), which provides for the time and place of payment of compensation benefits, states:

Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident; however, when the employee is not living at the place where the wages were paid, or is absent therefrom, such payments shall be made by mail, upon the employee giving to the employer a sufficient mailing address. However, a longer interval, not to exceed one month, may be substituted by agreement without approval of the director. An interval of more than one month must be approved by the director.

The WCJ interpreted La. R.S. 23:1201(A) as providing that a claim for penalties for the late payment of indemnity benefits requires proof of the manner in which wages were paid prior to the accident. The WCJ declined to award penalties for the untimely subsequent payments of indemnity benefits because he could not determine the manner in which Ford was paid prior to her injury. Ford argues that the WCJ was manifestly erroneous in denying this claim because Raeford’s payment ledger and compensation |4checks clearly showed the benefits were intended to be paid on a weekly basis.

The WCJ noted lapses in the payment of weekly benefits. A weekly installment was paid on July 28, 2010, then the August 4, 11, and 18 payments were skipped until a lump sum payment covering the prior three weeks was made on August 20, 2010. The next payment was made on September 15, 2010, to cover the period of September,1—14, 2010.

Ford contends that the fact that she had received indemnity benefits on a weekly basis established that she had been paid on a weekly basis when working for Raeford. We disagree. This shows only the normal pattern of indemnity payments. It does not show the manner in which Ford had been paid when she worked for Raeford.

Ford argues that even if she had been paid on monthly basis prior to her injury, she had not received payment for the period of September 28 to October 25, 2009, at the time of the October 2010 trial. The evidence does not show that she was ever paid for that period, despite demand being made by letter from her attorney on October 2 and October 14, 2009, for payment. As such, the WCJ was clearly wrong in failing to assess a penalty and attorney fee for this violation of La. R.S. 23:1201.

La. R.S. 23:1201(F) provides, in part:

Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars |fiper calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim.

The statute further states that this subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control. La. R.S. 23:1201(F)(2).

Raeford, which blamed delays on a change in third party administrators, has not shown that the claim for payment of indemnity benefits during the period in question was reasonably controverted or that nonpayment resulted from conditions over which it had no control. Accordingly, we assess a penalty of $2,000 for this violation. Ford is entitled to attorney fees for this violation. The amount of attorney fees will be addressed after other alleged violations of La. R.S. 23:1201 are reviewed on this appeal.

Denial of medical treatment

Regarding the failure to authorize additional medical treatment, the WCJ concluded that Raeford could have relied on an independent medical examination opinion by Dr. Karl Bilderback to justify its earlier decision not to authorize a disco-gram or initially authorize a second MRI. Therefore, the WCJ concluded that the requests for medical treatment were reasonably controverted, and penalties and attorney fees were denied.

IfiFord contends that the WCJ was manifestly erroneous in not ordering Raeford to pay penalties and attorney fees for terminating medical treatment in October 2009 and for later failing to authorize a disco-gram.

Dr. Douglas Brown, who is board certified in orthopedic medicine, first examined Ford on April 2, 2009. Ford complained of pain in her left lower back going down the back of her left leg. An MRI from March of 2009 showed disc herniation at left L4.

Ford underwent a micro discectomy performed by Dr. Brown on April 20, 2009. The disc herniation was removed and the nerve was decompressed. When Dr. Brown next examined Ford on May 1, 2009, her leg pain was gone.

Ford complained to Dr. Brown on September 8, 2009, that she was experiencing a little pain in the right side of her back, but none in the left side.

When Dr. Brown next treated Ford on October 6, 2009, she related having a little pain at L4. Dr. Brown thought the back pain was being caused by scar tissue. He suggested a new MRI to determine the cause of the pain as he was concerned that something else had happened because she had been doing well and then suddenly started having more pain. Dr. Brown thought it was possible that an earlier functional capacity evaluation of Ford aggravated the scar tissue and caused the pain.

The MRI request was sent to the adjuster on October 12, 2009, and was denied two days later. Dr. Brown’s office notes from that date state that |7the adjuster was not approving the MRI or any other further treatment. Dr. Brown was not told why the adjuster was taking that action.

On December 14, 2009, Ford’s attorney wrote to Raeford’s attorney requesting authorization for her to return to Dr. Brown. Ford’s attorney wrote to Raeford’s attorney on January 6, 2010, that Ford was still having significant problems and needed to see Dr. Brown. The MRI was approved on January 7 and performed on January 11, 2010. Ford also returned to Dr. Brown for treatment.

The radiologist who interpreted the January 2010 MRI said Ford had a little bulging remnant at L4 where the surgery had been, but there was no nerve pressure. Ford was also developing arthritic changes in her back, but there was no neurologic deterioration.

Ford complained of tremendous pain to Dr. Brown’s physician assistant on January 18, 2010. Dr. Brown recommended a discogram to diagnose the cause of the pain. He thought that Ford might need a spinal fusion because of her complaints, and he wanted a discogram to verify that she needed the surgery.

Dr. Brown’s physician assistant saw Ford on January 18, 2010, for complaints of recurrent back pain going into the left leg. Neurologically, her exam was normal. After Dr. Brown reviewed her MRI again, he thought that epidural steroid injections would possibly help with the pain.

The request for approval of the disco-gram was made again on February 1, 2010. The adjuster informed Dr. Brown’s office 11 days later |sthat the discogram would not be authorized. When Dr. Brown received the denial, he was offered no explanation.

On February 18, 2010, Ford’s attorney wrote to Raeford’s attorney asking for the basis for the denial of the discogram requested by Dr. Brown.

Epidural steroid injections were approved on March 9, 2010. Ford received epidural steroid injections at L4 on both sides from Dr. Brown on March 20 and April 10, 2010. She seemed to be doing well, and the pain improved after the first series of injections. After the second series of injections, the only pain that Ford had was minor muscle pain. She received injections again on April 23, and she was able to move without pain, only a minor spasm in her back. Dr. Brown wanted her to get into a reconditioning program to get her ready for work.

Dr. Brown noted that Ford had some dense scar tissue from her prior surgery. Dr. Brown stated that the scar tissue was more on the right side, which was where she was having pain, so he tried to break up the scar tissue with the injections. Dr. Brown thought the scarring that he broke up alleviated Ford’s pain.

Dr. Brown last treated Ford on June 29, 2010. He recalled that she was doing well and she agreed that she had recovered and was stable. Ford seemed to him to be at maximum medical improvement. Dr. Brown thought she could work at a light/medium work level with a 25-pound safety limit, and she had a 7.5% whole body impairment.

Ford contends that the WCJ was clearly wrong in not assessing a penalty and attorney fees for Raeford’s termination of medical treatment and |9denial of the second MRI in October of 2009. Ford contends that the termination of medical treatment was in violation of La. R.S. 23:1201(1), which states, in part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

Unreasonably controverting a claim requires action of a less egregious nature than that required for arbitrary and capricious behavior. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Id.

There was no justification for Raeford’s decision in October of 2009 to terminate medical treatment and refuse to approve the second MRI. Therefore, the WCJ was clearly wrong in not ordering Raeford to pay penalties and attorney fees for discontinuing medical treatment and delaying the second MRI for three months. A penalty of $1,000 is appropriate in this instance. Ford is also entitled to attorney fees for this violation, and the issue of attorney fees will be addressed later in this opinion.

Ford next contends that the WCJ was clearly wrong in not assessing a penalty and attorney fees for Raeford’s failure to authorize the discogram. The WCJ concluded that the request for the disco-gram was reasonably controverted by Rae-ford because it could have relied on an independent | Tnmedical examination (“IME”) to later justify its decision not to authorize a discogram.

The IME opinion was requested on March 11, 2010, and Dr. Bilderback examined Ford at the end of that month. He noted that Ford had only low back pain, and that all of her leg pain had resolved. Dr. Bilderback noted that the back surgery left Ford with some back pain as well as some numbness in the distribution of her prior leg pain, which was the typical result of a lumbar discectomy. He thought that she was at maximum medical improvement.

Dr. Bilderback could not recommend the lumbar discogram of Ford’s spine because the procedure no longer appeared to be a medically supported test for the evaluation of back pain. He noted that while disco-grams had been used in the past to evaluate patients with low back pain for surgical intervention, studies had recently questioned the use of a discogram as a preoperative indication for spinal fusion.

Dr. Brown admitted that the discogram is a controversial procedure. However, he considered the two local pain management specialists who performed them as achieving reliable results.

As noted earlier, La. R.S. 23:1201(F) provides for the assessment of penalties and attorney fees based on an employer’s failure to provide payment of benefits unless the claim is reasonably controverted or the failure to pay results from conditions over which the employer had no control.

|uIn order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Koenig v. Christus Schumpert Health System, 44,244 (La.App.2d Cir.5/13/09), 12 So.3d 1037; Howard v. Holyfield Const., Inc., 38,728 (La.App.2d Cir.7/14/04), 878 So.2d 875, writ denied, 2004-2303 (La.1/7/05), 891 So.2d 684.

The crucial inquiry in determining whether to impose penalties and attorney fees on an employer is whether the employer had an articulable and objective reason to deny benefits at the time it took action. Authement v. Shappert Engineering, supra; Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41.

Here, Raeford denied the discogram and then sought a second medical opinion to justify its decision. Dr. Brown later agreed with Dr. Bilderback that Ford was not a candidate for a . diseogram. Dr. Brown ultimately concluded that the disco-gram was unnecessary because the breaking up of the scar tissue by the injections had alleviated her pain. Dr. Brown did not think the failure to have the diseogram affected Ford’s recovery as it is strictly a diagnostic test. It should also be noted that Ford herself did not wish to have a diseogram at the time she was examined by Dr. Bilderback.

A workers’ compensation claimant must prove that the medical expenses are reasonably necessary for the treatment of a medical condition caused by a work-related injury. Hodge v. Manpower Temporary Services, 45,648 (La.App.2d Cir.9/22/10), 47 So.3d 1148. The disco-gram turned |12out to be unnecessary for the treatment of Ford’s work-related injury. Although Raeford did not possess this information at the time it denied the request for a diseogram, we cannot say the WCJ was clearly wrong in finding that the request had been reasonably controverted.

Attorney fees

Ford urges this court to increase the award ($450) of attorney fees for Raeford’s failure to timely provide medical records in violation of La. R.S. 23:1125 and for its failure to timely initiate benefits. Ford contends that the amount was abusively low. Ford also seeks an increase in attorney fees for the work performed on this appeal.

Ford was awarded attorney fees of $200 for Raeford’s violation of La. R.S. 23:1201 when it made a delinquent payment of the first installment of indemnity benefits. We amend this award of attorney fees by increasing it to a single award of $2,000 to reflect that Ford prevailed on this appeal regarding two additional claims of violations of La. R.S. 23:1201. We do not disturb the $250 in attorney fees awarded for the failure to timely provide copies of medical records as that award was not manifestly erroneous.

CONCLUSION

The judgment is reversed to assess a penalty of $2,000 for the failure to pay indemnity benefits from September 28 to October 25, 2009. The judgment is also reversed to assess a penalty of $1,000 for the denial of the [ ^second MRI and termination of medical treatment in October of 2009. The award of attorney fees for all the violations of La. R.S. 23:1201 is amended to $2,000. In all other respects, the judgment is affirmed. Raeford is to bear the costs of this appeal.

REVERSED IN PART, AMENDED IN PART, AND, AS AMENDED, AFFIRMED.

      . La. R.S. 23:1201(B) provides that the first installment of compensation payable for temporary total disability benefits shall become due on the 14th day after the employer or insurer has knowledge of the injury.

      . The WCJ’s written reasons for judgment state that the penalty is $250. However, the judgment states that the penalty is $200.

      . La. R.S. 23:1201(J) provides, "Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section!.]”

      . La. R.S. 23:1125 provides for a penalty of $250, plus reasonable attorney fees for the collection of such penalty, when the employer is late in furnishing the medical report.


author: PEATROSS, J.

text:
    Antonio WELLS, Sr., individually and on behalf of his minor children, Antonio Wells, Jr. and Amber Wells, Plaintiff-Appellee v. William C. NORRIS and XYZ Insurance Company, Defendants-Appellants.
    No. 46,458-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      John S. Stephens, for Appellant.
    Fischer & Associates, Shreveport, LA, by Mark K. Manno, for Appellee.
    Before WILLIAMS, STEWART & PEATROSS, JJ.
   PEATROSS, J.

|, Plaintiff, Antonio Wells, Sr. (“Mr. Wells”), individually and on behalf of his minor children, Antonio Wells, Jr. and Amber Wells, filed suit in 2002 against Defendants, William C. Norris (“Mr. Norris”) and XYZ Insurance Company, for wrongful death and injuries sustained as the result of a house fire. After trial of the case in March 2010, the trial judge took the matter under advisement. Then, in August 2010, without assigning written reasons for judgment, the trial judge ruled in favor of Plaintiffs, awarding damages in the amount of $207,572.79.

Mr. Norris and XYZ Insurance Company appeal from the trial judge’s ruling in favor of Plaintiffs. For the reasons set forth herein, we affirm.

FACTS

In December 2000, Mr. Wells leased from Mr. Norris a house located on Julia Street in Bossier City, Louisiana. Mr. Wells lived there with his wife, Amanda Wells, and their three children: (1) Amber Wells (born January 18, 2000), (2) Antonio Wells, Jr. (born December 30, 1998) and (3) Arquisia Wells (born November 11, 1997).

On July 1, 2001, between 11:00 a.m. and 12:00 noon, the house caught on fire. The Bossier City Fire Department (“BCFD”) responded and was ultimately able to extinguish the fire. Nevertheless, the fire resulted in the death of Arquisia Wells and injuries to both Amber Wells and Antonio Wells, Jr.

According to Mr. Wells, when he and his family moved into the house, several of the electrical outlets in the walls were not operational. l2Extension cords had been plugged into the functioning wall outlets throughout the home to power the areas in the home that did not have correctly functioning wall outlets. For instance, in the living room, there was a light hanging from the ceiling which was connected to an extension cord which ran down the wall and plugged into a functioning wall outlet.

BCFD Chief David Gray investigated the scene of the fire and discovered that the fuse box in the home contained mostly 30 amp fuses. According to Chief Gray, the use of 30 amp fuses in a residential circuit would be “indicative of an overload” because residential circuits typically use 20 amp fuses. Chief Gray further observed that a penny had been placed below one of the 20 amp fuses, presumably to prevent the system from tripping. Chief Gray also found that there were several fuses lying on the floor by the fuse box indicating that someone had changed the fuses. Chief Gray opined that the altered condition of the fuse box and the discarded fuses likely meant there was a problem with fuses blowing in the home.

Chief Gray determined that the fire appeared to have started where an additional air conditioner had been placed in the home and powered by an extension cord. He theorized that there was an overload by the air conditioner powered by the extension cord and the altered fuse box would not let the system trip. As a result, the system began heating up until a fire ignited.

As previously mentioned, Mr. Wells filed suit in the matter in June 2002, claiming that Mr. Norris was strictly liable for the damages sustained |sby him and his family due to the fire. Trial of the matter was held in March 2010 and the trial judge ruled in favor of Mr. Wells. The trial judge awarded $207,572.79 in damages to Mr. Wells, individually and on behalf of his minor children, to be paid by Mr. Norris and XYZ Insurance Company. The total damage award was divided into the following sums: $150,000 for the wrongful death of Arquisia Wells; $50,000 for injuries sustained by Amber Wells; $3,684.06 for the medical bills of Arquisia and Amber Wells; and $3,888.73 for the funeral expenses of Arquisia Wells. The trial judge did not assign oral or written reasons for his ruling in favor of Mr. Wells.

This appeal ensued.

DISCUSSION

According to Mr. Norris, the trial judge erred in ruling that he was strictly liable under La. C.C. art. 2696, infra, for the injuries and death sustained by the Wells family because Mr. Wells waived the warranty against vices and defects imposed by Article 2696 when he signed the lease agreement. The lease agreement between Mr. Norris and Mr. Wells contained the following clause:

14. Maintenance and Repair
A. Tenant will, at Tenant’s sole expense, keep and maintain the House and appurtenances in good and sanitary condition and repair during the term of this Lease. In particular, Tenant shall keep the fixtures in the House in good order and repair; keep the furnace clean; and keep the walks free from dirt and debris. Tenant shall, at Tenant’s sole expense, make all required repairs to the plumbing, range, oven heating apparatus, electric and gas fixtures, other mechanical devices and systems, floors, ceilings and walls whenever damage to such items shall have | resulted from Tenant’s misuse, waste or neglect, or that of Tenant’s family, agent or visitor.

Relying primarily on La. R.S. 9:3221, infra, Mr. Norris asserts that the above language in the lease obligating Mr. Wells to “maintain the house in good repair” amounts to an unequivocal waiver of any warranty imposed on the lessor (Mr. Norris) by La. C.C. art. 2696.

In response, Mr. Wells contends that a defect in the home, i.e., the altered fuse box, presented an unreasonable risk of harm, ultimately resulting in injuries to two of his children and in the death of another. Mr. Wells argues that, under La. C.C. art. 2696, Mr. Norris is strictly liable for the injuries to Mr. Wells’ family and, further, that there was no waiver in the lease relieving Mr. Norris of the warranty imposed by Article 2696. Specifically, Mr. Wells argues that the clause in the lease wherein he agrees to maintain the house in good repair does not amount to or contain clear or unambiguous language resulting in an express waiver of warranty in favor of Mr. Norris under La. R.S. 9:3221.

When appellate review is based upon an independent review and examination of the lease contract on its face, the manifest error rule does not apply. Johnson v. Ledoux, 42,090 (La.App.2d Cir.5/16/07), 957 So.2d 911, writ denied, 07-1482 (La.10/5/07), 964 So.2d 946; Lawrence v. Terral Seed, Inc., 35,019 (La.App.2d Cir.9/26/01), 796 So.2d 115, writ denied, 01-3134 (La.2/1/02), 808 So.2d 341. In such cases, appellate review of a question of law is simply whether the trial court was legally correct or legally incorrect. Johnson v. Ledoux, supra; Lawrence v. Terral Seed, Inc., supra.

|fiThe Louisiana Civil Code provides the following:

La. C.C. art. 2696
The lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose. This warranty also extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee.
La. C.C. art. 2697
The warranty provided in the preceding Article also encompasses vices or defects that are not known to the lessor. However, if the lessee knows of such vices or defects and fails to notify the lessor, the lessee’s recovery for breach of warranty may be reduced accordingly.
La. C.C. art. 2698
In a residential lease, the warranty provided in the preceding Articles applies to all persons who reside in the premises in accordance with the lease.
La. C.C. art. 2699
The warranty provided in the preceding Articles may be waived, but only by clear and unambiguous language that is brought to the attention of the lessee. Nevertheless, a waiver of warranty is ineffective:
(1) To the extent it pertains to vices or defects of which the lessee did not know and the lessor knew or should have known;
(2) To the extent it is contrary to the provisions of Article 2004; or
(3) In a residential or consumer lease, to the extent it purports to waive the warranty for vices or defects that seriously affect health or safety.

Additionally, La. R.S. 9:3221 provides:

Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

|nTo prevail on a strict liability claim under La. C.C. art. 2696, the plaintiff must prove that the defendant had custody of the thing causing the injury; that it contained a defect, that is, a condition creating an unreasonable risk of harm; and that the defective condition caused plaintiffs injury. Shuff v. Brookshire Grocery Co., 45,109 (La.App.2d Cir.3/3/10), 32 So.3d 1030; Davis v. Diamond Shamrock Refining and Marketing Co., 34,309 (La.App.2d Cir.12/6/00), 774 So.2d 1076. The lessor’s liability is based on his status as landlord, not his personal fault; therefore, his lack of knowledge regarding the defect is inconsequential. Bertini v. Scaife, 04-1229 (La.App.3d Cir.2/16/05), 895 So.2d 619. If the lessee knows of such vices or defects and fails to notify the lessor, however, the lessee’s recovery for breach of warranty may be reduced accordingly. La. C.C. art. 2697. The warranty under Article 2696 may be waived, but only by clear and unambiguous language brought to the attention of the lessee. La. C.C. art. 2699.

La. R.S. 9:3221 operates as an express statutory exception to La. C.C. art. 2699 where the lessee assumes responsibility for the condition of leased premises. Stuckey v. Riverstone Residential SC, LP, 08-1770 (La.App.1st Cir.8/5/09), 21 So.3d 970, writ denied, 09-2328 (La.1/8/10), 24 So.3d 873. Where the language of a provision transferring delictual liability under La. R.S. 9:3221 is clear and'unambiguous, the law does not require that the provision be brought to the lessee’s attention or explained to him. Greely v. OAG Properties, LLC, 44,240 (La.App.2d Cir.5/13/09), 12 So.3d 490, writ denied, 09-1282 (La.9/25/09), 18 So.3d 77; Stuckey v. Riverstone Residential SC, LP, supra. Thus, La. C.C. art. 2699’s requirement that a waiver of the lessor’s warranty against vices or defects be brought to the attention of the lessee does not apply to a provision transferring responsibility for purposes of La. R.S. 9:3221. Stuckey v. Riverstone Residential SC, LP, supra.

In the case sub judice, Paragraph 14 of the lease signed by the parties provided that Mr. Wells was obligated to “keep and maintain the House and appurtenances in good and sanitary condition and repair during the term of this Lease.” Mr. Norris argues that this language was clear and unequivocal and that “any warranty imposing strict liability on the defendant was waived.” We are not persuaded by this argument.

Mr. Wells’ agreement to “maintain the house in good repair” does not equate to his assumption of responsibility for the condition of the premises leased as contemplated by La. R.S. 9:3221. Additionally, further review of the entire lease indicates that no language existed anywhere therein amounting to a clear and unambiguous waiver of the warranty against vices and defects imposed by La. C.C. art. 2696. Accordingly, we find that Mr. Norris is strictly liable for Mr. Wells’ injuries and that the trial judge did not err in rendering judgment in favor of Mr. Wells.

In light of our disposition of appellant’s first and second assignments of error, we pretermit any discussion of the remaining assignments of error set forth in his brief.

^CONCLUSION

For the forgoing reasons, the judgment of the trial court in favor of Antonio Wells, Sr., individually and on behalf of his minor children, Antonio Wells, Jr. and Amber Wells, is affirmed. Costs of this appeal are assessed to William C. Norris and XYZ Insurance Company.

AFFIRMED.

      . Mr. and Ms. Wells are now divorced.