author: CARTER, C.J.

text:
    Alvin DANGERFIELD v. HUNT FOREST PRODUCTS, INC.
    No. 2010 CA 1324.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.

      Laurie W. Maschek, Slidell, LA, for Plaintiff/Appellant, Alvin Dangerfield.
    Trenton J. Oubre, Baton Rouge, LA, for Defendant/Appellee, Hunt Forest Products, Inc.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   CARTER, C.J.

|aAlvin Dangerfield, a former employee of Hunt Forest Products, Inc., who was injured in a workplace accident, appeals a judgment dismissing his disputed claim requesting a psychiatric evaluation. Hunt and its insurer, Crawford and Company, have answered the appeal, contending that Dangerfield was untruthful and should forfeit all benefits pursuant to La.Rev.Stat. Ann. § 23:1208, and alternatively requesting that this court limit Dangerfield’s entitlement to benefits.

FACTS AND PROCEDURAL HISTORY

On May 26, 2008, Dangerfield was injured in an accident that occurred at his workplace, a plywood plant operated by Hunt. Dangerfield was performing his job as a dryer tender and attempting to unplug the machine that dried thin layers of wood later made into plywood, when the machine suddenly started and caught Dangerfield’s right hand in a sprocket. As a result of injuries suffered in the accident, Dangerfield’s pointer and small fingers were amputated. His long and ring fingers were not amputated, but are now in a hooked position.

Dangerfield was treated by Dr. Eric George, a hand surgeon, for over a year dating from the initial emergency room visit. In October 2008, after three surgical procedures, Dr. George determined that Dangerfield reached maximum medical recovery and assigned a 45% impairment of the hand, which equated to a 42% impairment of the upper extremity. Dangerfield returned to work at Hunt and remained a Hunt employee until the plant closed in May 2009.

Following the accident, Hunt paid workers’ compensation benefits, first in the form of total disability benefits and then permanent partial |sdisability benefits. In July 2009, Dangerfield requested an evaluation by his choice of psychiatrist, Dr. John MacGregor. Hunt denied the request. Dangerfield then filed a disputed claim for compensation.

The workers’ compensation judge (“WCJ”) determined that Dangerfield did not meet his burden of establishing that a psychiatric evaluation and treatment was medically necessary and denied Dangerfield’s claim. Dangerfield now appeals, contending the WCJ erred in denying his request for a psychiatric evaluation. Hunt has answered the appeal raising multiple issues, including Dangerfield’s forfeiture of workers’ compensation benefits under La. Rev.Stat. Ann. § 23:1208, and his entitlement to indemnity benefits.

DISCUSSION

We first address the issue raised by Hunt in its answer to Dangerfield’s appeal that Dangerfield willfully made false statements and therefore forfeited his right to receive workers’ compensation benefits.

Pursuant to La.Rev.Stat. Ann. § 23:1208, an employee who makes a false statement for the purpose of obtaining workers’ compensation benefits shall forfeit any right to compensation benefits. The requirements for forfeiture of benefits under § 23:1208 are: 1) a false statement or representation; 2) that is willfully made; 3) for the purpose of obtaining any benefit or payment. A claimant does not forfeit benefits merely by making inconsistent statements or inadvertent admissions. Clark v. Godfrey Knight Farms, Inc., 08-1723 (La.App. 1 Cir. 2/13/09), 6 So.3d 284, 290, writ denied, 09-0562 (La.5/29/09), 9 So.3d 163. Statutory forfeiture of workers’ compensation benefits is a harsh remedy and as such must be strictly construed. Life Flight of New Orleans v. Homrighausen, 05-2538 (La.App. 1 Cir. 12/28/06), 952 So.2d 45, 50, writ denied, 07-0558 (La.5/4/07), 956 So.2d 615.

In his deposition testimony, Dangerfield explained that after the accident, he suffered sleeplessness due to nightmares and cold sweats, as well as nervous shakes. Dangerfield attested that he told Dr. George he was not getting sleep and having cold sweats, shakes, and depression problems. Dr. George has no record of any such remarks by Dangerfield. In fact, Dr. George found Dangerfield to be highly motivated, with no indications of psychological problems or depression. Dangerfield also attested that on his last visit he asked Dr. George about seeing a psychologist or psychiatrist, but Dr. George ignored him or directed him elsewhere.

Dr. George testified that if Dangerfield had made such a request, it is more likely than not that he would have indicated such in Dangerfield’s records, although he would not necessarily have made the requested referral. Dr. George limited his testimony to the contents of his medical records and could not say for certain that Dangerfield did not tell him about the psychological issues. Dr. George could only state that his records contain no notes to that effect and that it would be unusual for him to omit that if it were relayed to him. Thus, Dr. George opined that it was more likely than not that Dangerfield did not make any such statements. Dangerfield maintains that he relayed the information to Dr. George.

The judgment on appeal is silent as to the issue of forfeiture, which is deemed to be a rejection of the demand. See Robertson v. Sun Life Financial, 09-2275 (La.App. 1 Cir. 6/11/10), 40 So.3d 507, 510. Considering the record before us, which essentially is an attempt to prove | ¿the falsity of Dangerfield’s statement by the absence of a medical record notation, we do not find that a forfeiture of benefits is warranted.

We now turn to the issue raised by Dangerfield’s appeal, which is whether the WCJ erred in dismissing his disputed claim requesting a psychiatric evaluation as well as penalties and attorney’s fees.

An employer has a statutory duty to furnish all necessary medical treatment caused by work-related injury. La. Rev.Stat. Ann. § 23:1203 A. In addition to treatment designed to cure the work-related injury, the employer must furnish palliative treatment necessary to relieve pain. Jennings v. Ryan’s Family Steak House, 07-0372 (La.App. 1 Cir. 11/2/07), 984 So.2d 31, 39. A WCJ’s determination regarding medical necessity is entitled to great weight and will not be disturbed on appeal in the absence of manifest error or unless clearly wrong. Lang-Parker v. Unisys Corporation, 00-0880 (La.App. 1 Cir. 10/5/01), 809 So.2d 441, 449.

Additionally, La.Rev.Stat. Ann. § 23:1121 B(l) provides:

The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

|fiIn this case, it is undisputed that Dr. George was Dangerfield’s treating physician. Dr. George’s specialty is orthopedic surgery. Having completed his treatment with Dr. George, Dangerfield now wishes to seek treatment by a physician in another field or specialty—psychiatry. Under the plain language of La.Rev. Stat. Ann. § 28:1121 B(l), Dangerfield was not required to obtain approval to make such a change.

The workers’ compensation scheme sets forth specific provisions regarding mental injury caused by physical injury. The mental injury must be demonstrated by clear and convincing evidence and, to be compensable, must be diagnosed by a licensed psychiatrist or psychologist according to specific enumerated criteria. La.Rev.Stat. Ann. § 23:1021(8)(c) and (d). Our supreme court has cautioned reviewing courts to analyze claimed disabilities caused by mental conditions carefully and with utmost caution, recognizing the nebulous characteristics of mental conditions and the possibility of symptoms being easily feigned. Charles v. South Central Industries, 96-0883 (La.11/25/96), 683 So.2d 706, 709.

The WCJ in this case determined that Dangerfield did not meet his burden of proving the medical necessity of a psychiatric evaluation. Although an employer is only responsible for necessary medical treatment, the statutory scheme requires a diagnosis by a psychologist or psychiatrist as a prerequisite to a finding that treatment for a mental injury is necessary. See La.Rev.Stat. Ann. § 23:1021(8)(c),(d). At this stage, Dangerfield has not been evaluated by any psychiatric professional. Considering the traumatic injury suffered, we find that the WCJ erred in dismissing Dangerfield’s request for a psychiatric evaluation by his choice of physician in the psychiatric field. The WCJ likewise erred in denying benefits for |7“any purported mental injury claim.” Our decision is limited to entitlement of a choice of psychiatric professional and initial evaluation. Whether Hunt is responsible for any treatment must be determined thereafter in accordance with the statutory requirements.

Dangerfield contends that penalties should be awarded pursuant to La. Rev.Stat. Ann. § 23:1201 F, which provides for the imposition of penalties for failure to timely pay benefits or consent to the employee’s request to select or change physicians when such consent is required. The statute provides that penalties “shall be assessed” unless the claim is reasonably controverted. In order to reasonably controvert a claim, the employer must have some valid reason or evidence for refusing to pay, or must have based its decision on a nonfrivolous legal dispute. Sims v. BFI Waste Services, L.L.C., 06-1319 (La.App. 1 Cir. 5/16/07), 964 So.2d 998, 1005.

In this case, Dangerfield’s treating physician of record, Dr. George, did not find that any psychological treatment was necessary. While we have determined that Dangerfield is entitled to seek a psychiatric evaluation, we find that Dr. George’s opinion on the matter provides a valid basis for Hunt’s actions. In reaching this conclusion, we are mindful that as a penal statute, La.Rev.Stat. Ann. § 23:1201 must be strictly construed. See Sims, 964 So.2d at 1005. Accordingly, no penalties are warranted. For the same reasons, we likewise find that no attorney’s fees are warranted.

Lastly, Hunt has requested that this court amend the judgment on appeal to either find that Dangerfield is not entitled to any indemnity benefits or rights whatsoever, or that Dangerfield’s indemnity-rights are ^limited solely to permanent partial disability payments, with no entitlement to other indemnity benefits, including supplemental earnings benefits. The WCJ explicitly found that the issue of supplemental earnings benefits was not before her at the time of the hearing and made no ruling on the issues. While Hunt listed this issue in its pretrial order under the section identifying issues to be litigated, the issue clearly was not litigated. Therefore, this matter remains outstanding and will not be considered on appeal for the first time.

CONCLUSION

For the reasons set forth herein, the judgment appealed is reversed insofar as it dismisses Dangerfield’s disputed claim requesting a choice of physician in the psychiatric field and for any purported mental injury claim. This matter is remanded to the Office of Workers’ Compensation for further proceedings. Costs of this appeal are assessed to Hunt Forest Products, Inc., and Crawford and Company.

REVERSED AND REMANDED.

GAIDRY and WELCH, JJ., concur.

      . The general principle is that the issue of whether an employee forfeited workers' compensation benefits by willfully making false statements is one of fact, which should not be reversed on appeal absent manifest error. When findings are based on a credibility determination, a factfinder's decision to credit the testimony of one of two or more witnesses can virtually never be manifestly erroneous. Moreover, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous. Clark, 6 So.3d at 290.

      . We note that in his appellate brief, Dangerfield argues for an award of attorney's fees based on La.Rev.Stat. Ann. § 23:1121 C, which was repealed by 2003 La. Acts 1204, § 2. Attorney’s fees are, however, recoverable under La.Rev.Stat. Ann. § 23:1201 F, which Dangerfield cited for the imposition of penalties.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    Judy JOSEPH and James Joseph v. Lindsey RATCLIFF; Shelter Mutual Insurance Company and Allstate Insurance Company.
    No. 2010 CA 1342.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.

      Scott M. Emonet, Baton Rouge, LA, Attorney for Plaintiffs-Appellees, Judy Joseph and James Joseph.
    John C. Jacobs, Baton Rouge, LA, Attorney for Defendant-Appellant, Shelter Mutual Insurance Company.
    Steven Dale Cronin, Baton Rouge, LA, Attorney for Defendant-Appellee, State Farm Mutual Automobile Insurance Company.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

IgThis is an appeal from a partial summary judgment granted in favor of an insurance company on the issue of which Insurance policy provides primary coverage. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

This case arises out of a February 8, 2008, rear-end collision allegedly caused by Lindsey Ratcliff, who was operating her personal vehicle while in the course and scope of her employment as a courier for the Gunn & York law firm at the time of the accident. Judy and James Joseph brought a suit for damages against Ratcliff and her liability carrier, Shelter Mutual Insurance Company, as well as the Josephs’ uninsured/underinsured motorist carrier, Allstate Insurance Company. The Josephs subsequently dismissed Allstate, but amended their petition to name Gunn & York and its liability carrier, State Farm Mutual Automobile Insurance Company, as additional defendants.

Shelter, on behalf of Ratcliff, and State Farm, along with its insured, answered the Josephs’ lawsuit, but neither insurer filed a claim against the other. Shelter and State Farm then filed cross-motions for summary judgment on the issue of which insurance policy provided primary coverage and which one provided excess coverage. After a hearing on April 12, 2010, the trial court signed a judgment on April 27, 2010, granting a partial summary judgment in favor of State Farm and denying Shelter’s crossjmotion.3 The partial judgment did not dismiss any party from the litigation, nor did it determine liability or the Josephs’ entitlement to damages in any amount. Further, the partial judgment was not designated as final by the trial court after making a determination that there was no just reason for delaying an immediate appeal. Although Shelter indicated it intended to apply to this court for supervisory relief and the trial court set an April 26, 2010 deadline for Shelter’s writ application, Shelter did not timely file a writ application for supervisory relief.

On June 11, 2010, the trial court signed a judgment of dismissal, wherein the Josephs dismissed their claims against all defendants with prejudice. In the judgment of dismissal, Shelter specifically reserved its right to appeal the April 27, 2010 grant of partial summary judgment in favor of State Farm and the denial of Shelter’s cross-motion for partial summary judgment. Shortly thereafter, on June 29, 2010, the trial court signed an order of appeal granting Shelter an appeal from the April 27, 2010 partial summary judgment in favor of State Farm.

This court, ex proprio motu, issued a rule to show cause order noting that the April 27, 2010 judgment appeared to be a non-appealable ruling. Shelter and State Farm filed a joint reply brief, asserting that the partial summary judgment “essentially dismissed State Farm, meaning it was final |4and appealable without the necessity of a designation of the partial judgment as final and immediately appeal-ablet.]” Further, Shelter and State Farm averred that although the April 27, 2010 partial summary judgment was a non-ap-pealable interlocutory ruling at the time it was rendered, the impediment to Shelter’s appeal of that judgment was removed when the trial court signed the June 11, 2010 judgment adjudicating all the claims and the rights and liabilities of the parties. On November 15, 2010, a writ panel of this court issued an action maintaining Shelter’s appeal.

DISCUSSION

Initially, we are compelled to note that a regular appeal panel has the authority, and indeed the duty, to review, overrule, modify, and/or amend a writ panel’s decision on an issue when, after reconsidering the issue to the extent necessary to determine whether the writ panel’s decision was correct, the appeal panel finds that the writ panel’s decision was in error. Welch v. Willis-Knighton Pierremont, 45,554 (La.App.2d Cir.11/17/10), 56 So.3d 242, 252. Mere doubt as to the correctness of the prior ruling by a writ panel is not enough to change the prior ruling; only where it is manifestly erroneous or application of the law-of-the-case doctrine would result in an obvious injustice should we overrule or modify the prior ruling. Id.

Our review of the April 27, 2010 judgment appealed by Shelter, as well as the complete record, leads us to conclude that the writ panel’s previous ruling maintaining this appeal was in error. Furthermore, we note that the discretionary law-of-the-case principle does not bar us from reconsidering our prior rulings, especially when the previous decision was clearly erroneous and would result in an inappropriate review of a nonjappealable6 judgment. See Trans Louisiana Gas Co. v. Louisiana Ins. Guar. Ass’n, 96-1477 (La.App. 1st Cir.5/9/97), 693 So.2d 893, 896; Dodson v. Community Blood Center of Louisiana, Inc., 633 So.2d 252, 255 (La.App. 1st Cir.1993), writs denied, 93-3158, 93-3174 (La.3/18/94), 634 So.2d 850, 851. A court’s subject matter jurisdiction is an issue that cannot be waived or conferred by the consent of the parties, as Shelter attempted to do when it specifically reserved its right to appeal the primary coverage issue in the separate judgment of dismissal that was granted after the interlocutory ruling on the cross-motions for partial summary judgment. The issue of subject matter jurisdiction may be raised at any time, even by the court on its own motion, and at any stage of an action, de Nunez v. Bartels, 97-1384 (La.App. 1st Cir.9/9/98), 727 So.2d 463, 468 n. 5.

This court’s jurisdiction extends to final judgments. See LSA-C.C.P. art. 2083. A final judgment must be precise, definite, and certain. Vanderbrook v. Coachmen Industries, Inc., 01-0809 (La.App. 1st Cir.5/10/02), 818 So.2d 906, 913. Both Shelter and State Farm argue that it is apparent from the later judgment of dismissal on June 11, 2010, that State Farm was dismissed by the April 27, 2010 partial summary judgment even though the April 27, 2010 judgment did not formally dismiss any party or claim. However, it is impossible to ascertain what parties or claims may have been dismissed by the April 27, 2010 judgment without referring to and reviewing other judgments and pleadings in the record. Therefore, the April 27, 2010 judgment was not precise, definite, or certain. Furthermore, as to partial judgments, LSA-C.C.P. art. 1915 B states, in part:

(1) When a court renders a partial judgment or partial summary judgment ... as to one or more but less than all of the claims, demands, issues, or theories, ... the judgment IfiShall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purposes of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties. (Emphasis added.)

In the instant case, the April 27, 2010 partial summary judgment does not terminate any of the parties’ claims, nor does it dismiss any party. The judgment merely adjudicates one issue between two of the defendants — the insurance coverage issue as to which insurance company is primary — and nothing else. Further, the judgment does not contain a designation by the trial court that the judgment is final after an express determination that there is no just reason for delaying an appeal. See LSA-C.C.P. art. 1915 B(l). Therefore, the April 27, 2010 partial summary judgment is not a final judgment, and this court lacks jurisdiction to review this matter. See Latiolais v. Jackson, 06-2403 (La.App. 1st Cir.11/2/07), 979 So.2d 489, 492.

We also decline to exercise our plenary power of supervisory jurisdiction, as the merits of the instant case do not meet the criteria set forth by the Louisiana Supreme Court in Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). In particular, the Herlitz factors that “a reversal will terminate the litigation” and “the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits” are completely inapplicable due to the settlement |7and the undisputed dismissal of both of the insurance companies from the litigation. Furthermore, because Shelter’s motion for appeal of the April 27, 2010 judgment was filed moré than thirty days after the judgment was rendered and well past the writ application return date set by the trial court, we will not convert the appeal of that judgment to an application for supervisory writs. See Rule 4-3 of the Uniform Rules — Courts of Appeal.

The full and final settlement of this litigation after the partial summary judgment was rendered raises the question of whether this case is moot and no longer presents a justiciable controversy. See Council of City of New Orleans v. Sewerage and Water Bd. of New Orleans, 06-1989 (La.4/11/07), 953 So.2d 798, 800 (quoting St. Charles Parish School Bd. v. GAF Corp., 512 So.2d 1165, 1170 (La.1987)). It is well settled that courts will not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. In re E.W., 09-1589 (La.App. 1st Cir.5/7/10), 38 So.3d 1033, 1036. A case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. If the case is moot, there is no subject matter on which the judgment of the court can operate. Id., 38 So.3d at 1037. The justiciable controversy must normally exist at every stage of the proceeding, including appellate stages; and when the actual controversy lapses, any judicial pronouncement on the matter would be an impermissible advisory opinion. Id.

All of the legal questions arising from the controversy between Shelter and State Farm became moot, abstract, or hypothetical upon the settlement of the case. The compromise or settlement of the lawsuit extinguished the Josephs’ original claims and prevents any further action or 1 ¡^proceeding. Therefore, there is no subject matter on which the judgment of this court can operate. See Council of City of New Orleans, 953 So.2d at 801. In essence, Shelter’s object is to elicit, from this court an opinion on a question of law that has become academic or theoretical because of the settlement of the Josephs’ claims. It is fundamental in our law that courts sit to administer justice in actual cases and that they do not and will not act on feigned ones, even with the consent of some of the parties. Id., 953 So.2d at 801-802 (quoting St. Charles Parish School Bd., 512 So.2d at 1173). No stipulation of the parties or counsel can enlarge the power, or affect the duty of the court in this regard. Id., 953 So.2d at 802 (quoting St. Charles Parish School Bd., 512 So.2d at 1173). Further, we see no facts that warrant an exception to the general rule of the mootness doctrine in this case. See Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1197.

CONCLUSION

For the outlined reasons, we find that this court lacks jurisdiction to review the April 27, 2010 partial summary judgment. Accordingly, we dismiss this appeal at Shelter’s cost.

APPEAL DISMISSED.

      . Due to the Josephs' stipulation that their damages did not exceed $50,000.00, it was undisputed that both of the policies had sufficient limits to satisfy any damages that may be awarded to the Josephs. Further, it was undisputed that the "excess” insurer would not be answerable to the Josephs for any proven damages since the Shelter policy provided bodily injury limits of $50,000.00 per person and $100,000.00 per accident, and the State Farm policy provided a combined single limit of $1,000,000.00 per accident.

      . Uniform Rules — Courts of Appeal, Rule 4-3 provides that the return date for a writ application in civil cases shall not exceed thirty days. An application not filed in the appellate court within the explicit date set or within any extension shall not be considered by the appellate court in the absence of a showing that the delay was not due to the applicant's fault.

      . The judgment of dismissal specifically stated that the Josephs’ claims against Ratcliff, Shelter, and State Farm were all dismissed, but the judgment was silent as to State Farm's insured, Gunn & York. Nevertheless, Shelter and State Farm represented to this court in a joint submission and in their briefs that the June 11, 2010 judgment of dismissal adjudicated all the claims between all the parties pursuant to an out-of-court settlement of the case.


author: PARRO, J.

text:
    STATE of Louisiana v. Cory A. HARRIS.
    No. 2010 KA 0643.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.
    Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn Landry, Special Appeals Counsel, Baton Rouge, LA, for State of Louisiana.
    Mary E. Roper, Louisiana Appellate Project, Baton Rouge, LA, for Defendant-Appellant Cory A. Harris.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

li>The defendant, Cory A. Harris, was charged by bill of information with possession on June 11, 2008, of a Schedule I controlled dangerous substance, marijuana, second offense, a violation of LSA-R.S. 40:966(C). See also LSA-R.S. 40:964, Schedule 1(0(22) and 40:966(E)(2). The defendant filed a motion to quash the bill of information, arguing that the instant offense was not punishable as a second offense and that LSA-R.S. 40:966 was unconstitutionally vague. The trial court denied the motion to quash. Nonetheless, the defendant entered a plea of guilty as charged, reserving the right to appeal the trial court’s ruling pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The trial court deferred the imposition of sentence pursuant to LSA-C.Cr.P. art. 893 and placed the defendant on supervised probation for a period of three years, with special conditions of probation. The defendant now appeals, assigning as error the trial court’s denial of the motion to quash. For the following reasons, we reverse the trial court’s ruling denying the motion to quash, grant the motion to quash, vacate the guilty plea conviction and sentence, and remand for further proceedings in accordance with law.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

In the instant case, the facts were not developed, as the defendant entered a guilty plea on November 12, 2009, to the offense as charged. However, at the outset of the November 12, 2009 proceeding, the defendant pled guilty to a prior offense of possession of marijuana committed on December 24, 2007. Immediately after his plea of guilty to that charge, the state filed the bill of information for the instant offense in open court. This bill of information alleged | sthat the defendant committed the instant offense of possession of marijuana on June 11, 2008. After the state filed this bill of information, the defendant promptly entered his motion to quash.

ASSIGNMENT OF ERROR

In the sole assignment of error, the defendant argues that the trial court erred in denying his motion to quash the bill of information. The defendant specifically argues that this offense is not punishable as a second offense because it was committed before his conviction for the prior possession of marijuana offense. The defendant argues that LSA-R.S. 40:966(E)(2) should be interpreted as requiring that the second offense be committed after the conviction for the prior offense, noting the absence of language evidencing an intent otherwise and comparing the particular language of LSA-R.S. 14:98(0(1) and LSA-R.S. 14:35.3(D). Assuming that the statute is subject to more than one interpretation, the defendant argues that LSA-R.S. 40:966(E)(2) is unconstitutionally vague. In that regard, the defendant specifically argues that the statute does not provide whether a defendant can be convicted for a second offense possession of marijuana if the second offense occurred before he was convicted of the predicate offense.

According to the record in the instant case, the defendant’s predicate possession of marijuana offense was committed on December 24, 2007. The conviction for the predicate offense took place on the same date as, and prior to, the conviction for the instant offense, November 12, 2009. Thus, the date of the commission of the instant offense, June 11, 2008, preceded the conviction for the predicate offense.

The applicable version of LSA-R.S. 40:966(E)(2) provided as follows:

Except as provided in Subsection F or G of this Section, on a second conviction for violation of Subsection C of this Section with regard to marijuana, tetrahy-drocannabinol or chemical derivatives thereof, the offender shall be fined not more than two thousand | ¿dollars, imprisoned with or without hard labor for not more than five years, or both.

In denying the defendant’s motion to quash and finding that the predicate conviction could be used to enhance the defendant’s sentence, the trial court agreed with the state’s argument that the plain reading of LSA-R.S. 40:966(E)(2) does not require that the first conviction occur before the commission of the second offense.

The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that penal statutes describe unlawful conduct with sufficient particularity and clarity that ordinary persons of reasonable intelligence are capable of discerning the statute’s meaning and conforming their conduct thereto. State v. Gamberella, 633 So.2d 595, 602 (La.App. 1st Cir.1993), writ denied, 94-0200 (La.6/24/94), 640 So.2d 1341. See U.S. Const, amend. XIV, § 1; LSA-Const. art. I, §§ 2 and 13. In addition, a penal statute must provide adequate standards by which the guilt or innocence of the accused can be determined. In determining the meaning of a criminal statute and hence, its constitutionality, all of the provisions of penal statutes must be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. See LSA-R.S. 14:3; Gamberella, 633 So.2d at 602.

We find that LSA-R.S. 40:966 is not unconstitutionally vague and, in interpreting the statute, we consider the following. A common legislative purpose of repeater offense statutes is to serve as a warning to first offenders and to afford them an opportunity to reform. See State v. Neal, 347 So.2d 1139, 1141-42 (La.1977). The consistent application of repeater offense statutes over the years has been that prior convictions, in order to be available for imposition of a greater punishment as a subsequent offender, must precede the commission of the principal offense, that is, the latest prosecution in point of time. See Neal, 347 So.2d at 1141. This has been the greatly preponderant interpretation of ^similar statutes throughout the nation, regardless of the phraseology of the statute (or whether it specifies that the earlier conviction(s) must precede the latest offense), whenever enhanced penalties are provided for a subsequent offense. Id. If, therefore, the prior conviction is an essential allegation for conviction of the second-offense crime, an accused cannot be charged with the latter crime when arrested for the second incident if, at that time, he had not been previously convicted of a first offense. Id.

At the time of the Louisiana Supreme Court’s holding in Neal, the language of the DWI statute, LSA-R.S. 14:98, was similar to the current language of LSA-R.S. 40:966. Subsequent to the holding in Neal, the legislature deviated from the general rule when the DWI statute was amended by 1978 La. Acts, No. 682, § 1 to provide that “regardless of whether the second offense occurred before or after the first conviction,” the offender would be subject to enhanced punishment. LSA-R.S. 14:98(C); see also LSA-R.S. 14:35.3(D).

As there has been no legislative amendment to the contrary, we are constrained to apply the general rule enunciated in Neal in our interpretation of LSA-R.S. 40:966 for enhancement purposes. Accordingly, we find that one cannot be guilty of the crime of possession of marijuana, second offense, unless such crime is committed after the first conviction for this offense. Thus, we find that the trial court erred in denying the defendant’s motion to quash the bill of information, and we reverse the trial court’s ruling, grant the motion to quash, vacate the guilty plea conviction and sentence, and remand for further proceedings in accordance with law.

DENIAL OF THE MOTION TO QUASH REVERSED; MOTION TO QUASH GRANTED; GUILTY PLEA CONVICTION AND SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS.

      . Unless otherwise noted, all references to statutory provisions in this opinion are to their content as of the date of the instant offense.

      . By 2008 La. Acts, No. 67, § 1, effective August 15, 2008, this provision was amended, and the new citation is LSA-R.S. 40:964, Schedule I(C)(19).

      . The defendant entered his guilty plea to this misdemeanor charge under docket number 440856.

      . The particular language in those statutory provisions specifies that an offense may be enhanced "regardless of whether the second offense occurred before or after the first conviction.”


text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, OFFICE OF FAMILY SECURITY v. Sedric SENSLEY.
    No. 2010 CA 1319.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.
    Hillar C. Moore, III, District Attorney, Sherry E. Patrick, Assistant District Attorney, Baton Rouge, LA, for Plaintiff-Appellant State of Louisiana, Department of Social Services.
    Monique Fields, Office of the Public Defender, Baker, LA, for Defendant-Appel-lee Sedric Sensley.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

|2The State of Louisiana, Department of Social Services (DSS), appealed the judgment of the juvenile court, which modified the recommendation of the juvenile court hearing officer without a hearing and despite the fact that no party had filed a written objection to the recommendation of the hearing officer. For the following reasons, we remand this matter to the juvenile court, with instructions that it execute an amended judgment incorporating the October 21, 2009 recommendation of the hearing officer that required the father to obtain medical insurance coverage for his minor child.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves an expedited process, authorized by LSA-R.S. 46:236.5, for the establishment of paternity and the establishment and enforcement of support and other related family and domestic matters using hearing officers. The instant matter was initiated by DSS, through the East Baton Rouge Parish District Attorney, in the juvenile court. After the issue of paternity was resolved, DSS sought child support from Sedric Sensley, the father of his minor child.

The present matter came before the hearing officer on October 21, 2009, at a hearing to establish child support. Both Mr. Sensley and the child’s mother, Joh-netta Jones, were present at this hearing, as were Mr. Sensley’s attorney from the public defender’s office and an assistant district attorney on behalf of DSS. After discussion amongst the parties and counsel present, a stipulation was entered into the record in which it was agreed that Mr. Sensley was to pay temporary child support of $500 per month beginning on November 1, 2009. Mr. Sensley was also to obtain medical insurance coverage for the minor child upon its availability through his employer, provided the cost did not exceed 10% of his gross monthly income. The stipulation ^further provided that an income assignment order was to be made effective immediately, and the matter was reset for February 3, 2010, in order for Mr. Sensley to provide his check stubs and the cost of insurance.

This stipulation was entered as the recommendation of the hearing officer on a form approved by the juvenile court. No party filed any objection to the hearing officer’s recommendation. Nevertheless, when the juvenile court signed its judgment on December 14, 2009, based on the hearing officer’s recommendation, the juvenile court modified the hearing officer’s recommendation by omitting the paragraph that required Mr. Sensley to obtain medical insurance for the minor child. This modification took place despite the fact that no party filed an objection to the hearing officer’s recommendation, and despite the fact that no hearing before the juvenile court occurred before the modification. It is from this judgment that DSS has appealed.

DISCUSSION

The judges of the juvenile court may appoint one or more hearing officers to hear child support and support-related matters. See LSA-Ch.C. art. 423(A)(1). The hearing officer shall file his report and recommendation with the court, and a copy shall be promptly provided to all parties or their counsel of record either at the hearing or by mail. LSA-Ch.C. art. 423(E). If any aggrieved party objects to the hearing officer’s recommendation, that party must file a written objection within the ten-day delay set forth in LSA-Ch.C. art. 423(F), after which the juvenile court will hear the case de novo, and enter judgment. However, for hearings utilizing the expedited process for the establishment of paternity or support and the enforcement of support, like the current matter, the delay for serving and filing objections shall be established pursuant to local rule, as provided in LSA-R.S. 46:236.5. LSA-Ch.C. art. 423(F).

14Louisiana Revised Statute 46:236.5 provides, in pertinent part:

B. (1) Any court with jurisdiction to establish paternity or to establish or enforce support obligations shall implement an expedited process for the establishment or enforcement thereof in accordance with existing judicial procedures or the provisions of Subsection C of this Section. “Expedited process” means administrative or expedited judicial processes or both which increase effectiveness and meet completion time frames specified in Paragraphs (1) and (2) of Subsection A of this Section.
C. An expedited process for the establishment of paternity and the establishment and enforcement of support and other related family and domestic matters in district courts using hearing officers may be implemented as follows:
(1) The judge or judges of the appropriate court or courts for the establishment of paternity or the establishment and enforcement of support and other domestic and family matters may appoint one or more hearing officers to hear paternity, support, and other domestic and family related matters. Domestic and family matters shall include divorce and all issues ancillary to a divorce proceeding; all child-related issues such as paternity, filiation, custody, visitation, and support in non-marital cases; all protective orders filed in accordance with R.S. 46:2131 et seq., R.S. 46:2151 et seq., and the Children’s Code and all injunctions filed in accordance with R.S. 9:361, 371, and 372 and Code of Civil Procedure Articles 3601 et seq., which involve personal abuse, terrorizing, stalking, or harassment; and enforcement of orders in any of these matters, including contempt of court.
* * *
(3) The hearing officer shall act as a finder of fact and shall make written recommendations to the court concerning any domestic and family matters as set forth by local court rule, including but not limited to the following matters:
(a) Hear and make recommendations on establishment and modification of child and spousal support, child custody and visitation.
(b) Hear and make recommendations on method of collection of child and spousal support.
(c) Hear and make recommendations on enforcement of child and spousal support, including but not limited to proceedings under Children’s Code Articles 1352 through 1355, [] and on enforcement of child custody and visitation.
(6) A copy of any written recommendations, order, or uncontested judgments rendered by the hearing officer shall be provided to the parties and their counsel at the time of the hearing officer’s ruling, if present. Any party who disagrees with a judgment or ruling of a hearing officer on a matter set forth in Paragraph (3) may file a written objection to the findings of fact or law of the hearing officer within the time and manner established by court rule. The objection shall be heard by the judge of the district court to whom the case is assigned. Upon filing of the objection, the court shall schedule a contradictory hearing where the judge shall accept, reject, or modify in whole or in part the finding of the | shearing officer. If the judge in his discretion determines that additional information is needed, he may receive evidence at the hearing or remand the proceeding to the hearing officer.
(7) If no written objection is filed with the clerk of court within the time and manner established, the order shall become a final judgment of the court and shall be signed by a judge and appeal-able as a final judgment. The judgment after signature by a district judge shall be served upon the parties in accordance with law.

In conjunction with the provisions of LSA-R.S. 46:236.5(0) and pursuant to Rule 41.2 of the Louisiana Juvenile Court Rules, the juvenile court adopted a local rule found in Appendix 24 of those rules. See La. Juv. Ct. R. 41.2, App. 24. That local rule for this juvenile court provides, in pertinent part:

Motion for Contradictory Hearing
Any party may take exception to the Hearing Officer’s findings of fact and move for a contradictory hearing before the Judge of the appropriate Division of the Court. A written opposition to the Hearing Officer’s Recommendation to the Court shall be filed within 3 days from the date of the hearing with the Clerk of the Juvenile Court, Non-Support Division.
Upon filing a “Motion for Contradictory Hearing” opposing the Hearing Officer’s Recommendation, the Court shall schedule a contradictory hearing on the Court’s next available date to be held before the Judge in the appropriate Division. The Judge shall accept, reject, or modify in whole or part the findings of the Hearing Officer.
Except in extraordinary circumstances, if no exception to the Hearing Officer’s Recommendation is filed within 3 days following the initial hearing before the Hearing Officer, an order shall be signed by the Judge of the appropriate Division which shall be a final Judgment and shall be appealable to the proper appellate court.

In its only assignment of error, DSS contends that the juvenile court was without authority to modify the hearing officer’s recommendation, since neither party filed an objection to the recommendation. DSS contends that such a modification is in violation of LSA-R.S. 46:236.5(C)(7) and the local rule quoted above. DSS notes that the parties stipulated to the terms of the support order, which became the recommendation of the hearing officer; that neither party filed an opposition to this x’ecommendation within the three-day period established by the local rule; and that no extraordinary circumstances | (¡exist in this matter to authorize the juvenile court to modify the recommendation without the filing of an opposition. Furthermore, DSS contends that even if such extraordinary circumstances existed, or if the juvenile court were otherwise permitted to modify the recommendation without the filing of an objection, no hearing was ever held before the juvenile court; rather, the juvenile court unilaterally modified the hearing officer’s recommendation without granting the parties an opportunity to introduce evidence or otherwise address whatever concerns the juvenile court may have had.

Mr. Sensley has not appealed the juvenile court’s judgment, nor has he responded to the appeal by DSS. However, the juvenile court submitted a per curiam into the record in support of its decision to modify the recommendation of the hearing officer in this fashion. According to the per curiam, which was not signed until May 20, 2010, five months after the signing of the judgment contested on appeal, the juvenile court alleged that the rule to establish child support filed by DSS in this matter did not contain a prayer for medical coverage concerning the minor child. Therefore, the juvenile court excluded the language concerning medical coverage, because the juvenile court concluded that the language was not in compliance with 45 C.F.R. § 303.31 and LSA-R.S. 46:236.5. In so doing, it appears that the juvenile court noticed, on its own motion, a perceived failure to state a cause of action with regard to medical support for the minor child in the rule to establish support. For the following reasons, we conclude that the juvenile court’s view of the pleadings was too narrow.

According to the rule to establish support, DSS alleged that Mr. Sensley was gainfully employed at all times and had the ability to provide support on behalf of the minor child. DSS further requested that the “Court set a support obligation at a fair and reasonable amount for the support of the minor ehild(ren), to be paid by the Defendant, payable through [DSS].” While it is true that there is no specific mention of a request for payment of medical coverage or medical support anywhere in the rule to establish support, there was no necessity for such a request in light of the definition of 17support found in LSA-R.S. 46:236.3(A)(7). Pursuant to that definition, “support” means “child support, spousal support, and medical support established by a court order and any amounts ordered under R.S. 46:236.5.” Clearly, this definition specifically encompasses medical support, and the recommendation and order of the hearing officer that Mr. Sensley obtain medical insurance coverage for the minor child was in compliance with LSA-R.S. 46:236.5. Furthermore, the term “support obligation” used by DSS in its rule to establish support is certainly broad enough to include all facets of the child support obligation, including health insurance premiums. See LSA-R.S. 9:315(0(6).

Moreover, once the court determines the basic child support obligation pursuant to LSA-R.S. 9:315.2, the total child support obligation shall be determined by adding together the basic child support obligation amount, the net child care costs, the cost of health insurance premiums, extraordinary medical expenses, and other extraordinary expenses. LSA-R.S. 9:315.8(A). In addition, in any case in which DSS is providing support enforcement services, the child support order shall require one or both of the parties to provide “medical support” for the child. LSA-R.S. 9:315.4(B).

Based on the above statutory provisions, it is clear that a request to provide medical support for the minor child was encompassed within the term “support obligation.” Furthermore, because this matter is one in which DSS is providing support enforcement services, the child support order “shall” require that one or both of the parties provide medical support for the child. See LSA-R.S. 9:315.4(B). By removing the provision in the hearing officer’s recommendation that required Mr. Sensley to obtain medical insurance coverage for the minor child, the juvenile court ignored this statutory mandate. Accordingly, we find that the juvenile court erred in its apparent determination that the rule to establish support failed to state a cause of action with regard to medical support for the minor child.

The juvenile court further contends in its per curiam that it was authorized to | ^modify the hearing officer’s recommendation, because there was no finding in the recommendation that the custodial parent did not have satisfactory health insurance other than Medicaid, as required by 45 C.F.R. § 303.31. In support of this position, the juvenile court cited a version of 45 C.F.R. § 303.31 that required DSS to petition the court to include health insurance costs for the minor child if the custodial parent and the minor child did not have satisfactory health insurance other than Medicaid. This version of 45 C.F.R. § 303.31 is no longer in effect, however, and the current version has no such requirement. Furthermore, even if the version cited by the juvenile court were still valid, it overlooks the effect of LSA-R.S. 9:315.4(3), which mandates that the child support order require one or both of the parties to provide medical support for the child. In addition, the juvenile court’s contention fails to acknowledge that the parties stipulated that Mr. Sensley would provide health insurance coverage for the minor child.

The juvenile court judge also contended in her per curiam that she, and not the hearing officer, was the elected official sworn to uphold the law. According to the per curiam, the hearing officers are employees of the judges whose duties are to hear cases, act as finders of fact, and provide recommendations to the judge. The juvenile court judge further asserted that she was under no obligation to accept the recommendation of the hearing officer.

It is true that the juvenile court in this case is granted authority to adjudicate those matters within its jurisdiction “as provided by law.” LSA-Const. art. V, § 18. However, the authority of the juvenile court “as provided by law” in this case is found in LSA-R.S. 46:236.5, because the hearing utilized the expedited process for the establishment of paternity and the establishment and enforcement of support. See RLSA-R.S. 13:1621(A)(3). Therefore, with that grant of such authority came specified parameters within which the juvenile court judges were bound. Pursuant to those parameters, the recommendation of the hearing officer becomes the final judgment of the court if no objection is filed by either party within three days of the filing of the hearing officer’s recommendation. See LSA-R.S. 46:236.5(0(7); La. Juv. Ct. R. 41.2, App. 24. It is clear that under the statutory scheme established by LSA-R.S. 46:236.5 and the local rule adopted by the juvenile court, the hearing officer’s recommendation had, by operation of law, become a final judgment of the court, since no written objection was filed with the clerk of court within three days following the hearing. Furthermore, since LSA-R.S. 46:236.5(0(7) and the local rule mandate that the court sign such an order once it has become a final judgment, as it had here, the juvenile court lacked authority to modify such judgment. See C.G.D. v. M.W.D., 00-1492 (La.App. 3rd Cir.2/28/01), 782 So.2d 1128, 1131. Therefore, we find that the juvenile court committed legal error in modifying the recommendation of the hearing officer once it had become a final judgment in accordance with LSA-R.S. 46:236.5(0(7) and the local rule adopted by the juvenile court. Moreover, in light of the mandate set forth by LSA-R.S. 46:236.5(0(7) and the local rule, we remand this matter to the juvenile court with instructions that it execute an amended judgment incorporating the paragraph of the hearing officer’s recommendation that required Mr. Sensley to obtain | inmedical insurance coverage for the minor child.

CONCLUSION

For the above reasons, we conclude that the juvenile court erroneously modified the hearing officer’s recommendation after that recommendation had become a final judgment of the court, by operation of law, in accordance with LSA-R.S. 46:236.5(C)(7) and the local rule adopted by the juvenile court. Accordingly, we remand the matter to the juvenile court, with instructions to execute an amended judgment incorporating the October 21, 2009 recommendation of the hearing officer that required Mr. Sensley to obtain medical insurance coverage for the minor child. Each party is to bear its own costs of this appeal, which total $121.50.

REMANDED WITH INSTRUCTIONS.

GUIDRY, J., concurs in the result.

      . The matter had come before the hearing officer previously in August 2009; however, no payment determination was made at that time because Mr. Sensley challenged paternity, and a paternity test was scheduled. Based upon the paternity test to which Mr. Sensley submitted, the probability of his being the father of the minor child at issue in this matter was 99.99%.

      . Mr. Sensley also was to pay an additional 5% of this amount as an administrative fee in accordance with LSA-R.S. 46:236.5(B)(1).

      .The minute entry concerning the signing of this judgment simply stated that on December 14, 2009, the juvenile court judge rendered, read, signed, and filed a judgment in accordance with the recommendation of October 21, 2009. There was no mention that the hearing officer’s recommendation had been modified in any way.

      . According to DSS, there are currently forty-three other judgments in which this division of the juvenile court has modified the hearing officer's recommendation by deleting the paragraph concerning medical coverage. Those appeals have apparently been stayed, on motion of the district attorney, pending the outcome of this case. In addition, the district attorney has represented in its brief that there are numerous other cases in which the judgments have not been signed pending the outcome of this appeal.

      . Louisiana Children’s Code articles 1352— 1355 provide for proceedings concerning criminal neglect of family. Article 1355 specifically provides for cases in which the parent owing a duty of support and the district attorney stipulate to an order of support. In such circumstances, the court shall have the power to issue an order of support pursuant to the provisions of Article 1352 without the necessity of instituting criminal proceedings pursuant to LSA-R.S. 14:74.

      . Effective June 1, 2010, amendments by the Louisiana Supreme Court renumbered Juvenile Court Appendix 24 to Appendix 41.0, and Rule 41.2 was redesignated as Rule 41.0. All references in this opinion will be to Rule 41.2 and Appendix 24, which were in effect at the time of the hearing in this matter.

      . Notably, "medical support” is defined in LSA-R.S. 9:315(C)(6) as "health insurance and the payment of the medical expenses of the child."

      . The current version of 45 C.F.R. § 303.31 became effective July 21, 2008.

      .In furtherance of and in addition to making written recommendations as set forth in LSA-R.S. 46:236.5(C)(3), hearing officers are empowered to accept voluntary acknowledgments of support liabilities and stipulated agreements setting forth the amount of support to be paid. See LSA-R.S. 46:236.5(C)(4)(h).

      . At the time this matter was heard, LSA-R.S. 13:1621 (A)(3) provided, in pertinent part:
      A. There shall be a separate juvenile court for the parish of East Baton Rouge which shall be a court of record and shall be known as the "Juvenile Court for the Parish of East Baton Rouge". There shall be two judges of the juvenile court, who shall preside over that court. The court shall have exclusive jurisdiction in the following proceedings:
      (3) All such additional jurisdiction, power, and authority now or hereafter provided by law for juvenile courts, and particularly but not restricted to the jurisdiction, power, and authority under the provisions of ... R.S. 46:236.5....

      . This is in contrast to LSA-Ch.C. art. 423(F), which grants a ten-day period for the filing of objections to the hearing officer’s recommendation. In addition, LSA-Ch.C. art. 423(G) appears to grant the juvenile court judge some discretion on the issue of whether the hearing officer’s recommendation should be approved; however, this same discretion is not granted in LSA-R.S. 46:236.5(C)(7).

      .In addition, as noted above, the modification made by the juvenile court to the hearing officer’s recommendation was contrary to the mandate of LSA-R.S. 9:315.4(B). Therefore, even if the juvenile court were empowered to modify the hearing officer’s recommendation, despite the clear language of LSA-R.S. 46:236.5(C)(7) and the local rule, the removal of the requirement that Mr. Sensley provide health insurance coverage for the minor child, under the circumstances of this case, would not constitute a lawful modification.


author: MARION F. EDWARDS, Chief Judge.

text:
    Pam SOLIS v. NPK, L.L.C. and Parish Partners Company, L.L.C.
    No. 10-CA-465.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Rehearing Denied April 27, 2011.

      Albert J. Nicaud, Timothy P. Farrelly, Nicaud & Sunseri, LLC, Metairie, LA, for Plaintiffs/Appellees.
    Andrew L. Kramer, Binford E. Parker, III, Attorneys at Law, New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Chief Judge.

1 gDefendants/appellants, NPK, L.L.C. (“NPK”) and Parish Partners Company, L.L.C. (“PPC”), appeal a judgment in favor of plaintiff/appellee, Pam Solis (“Ms. Solis”), for repairs made to a condominium purchased by Ms. Solis. For reasons that follow, we affirm.

FACTS

NPK and PPC redeveloped a previously constructed structure into the Cleary Condominiums after Hurricane Katrina. In order to market the condos, the developers put out a brochure boasting granite floors in unit baths, all GE kitchen appliances with a one-year warranty, and ceramic floor tiles in kitchens. The common area was to be a five-story open air atrium with granite tile floors and a cascading water fall.

Ms. Solis entered into a purchase agreement on March 6, 2007 with NPK for a purchase of one of these condominiums, Unit 301, for the price of $238,901. The purchase agreement contained an “as is clause and addendum” that reads, in pertinent part, as follows:

Is All units are sold, and the condominium property in general is presented to all prospective purchasers, as is, without any warranty whatsoever, whether express or implied, including but not limited to any such warranties with respect to fitness for intended purpose or any such warranties against vices and defects, even hidden or latent defects that could not be discovered by an inspection, including but not limited to termites, mold (toxic or otherwise) and mildew as well as any lead based paint....

However, because the condominium was not completed timely, the “as is” clause was made subject to a “punch list,” which provides in part as follows:

Purchase [sic] shall inspect the Condominium with Seller’s representative and shall execute Seller’s form of inspection report (the “Inspection Report”) listing all items of work which the parties mutually agree are not in the condition required by this Agreement.... Seller shall complete the Punch List Items within a reasonable period of time after the Closing subject to delay caused by Purchaser, availability of labor and materials, and other circumstances beyond the reasonable control of Seller....

The punch list was made by the parties, and the act of sale was passed on June 20, 2007. The punch list is four handwritten pages. Some of the items are crossed out and dated 6/13/07 and 6/20/07. However, ultimately all of the work was not completed, and some of the work that was done to complete the punch list caused further damage to the property. As a result, Ms. Solis filed this action against NPK and PPC making claims in redhibition, breach of contract, and a claim under the New Home Warranty Act.

NPK and PPC answered the claims and subsequently filed a motion for summary judgment. The trial court granted summary judgment as to the claim under the New Home Warranty Act, but it denied the motion as to all other claims made by Ms. Solis. The matter went to trial on the remaining claims, after which, the trial court rendered judgment in favor of Ms. Solis in the amount of $23,192.35. It is that judgment that is before us in this appeal.

\ ¿LAW AND ANALYSIS

NPK and PPC argue that the trial court made an error of law in awarding damages pursuant to a contract claim that was not' noticed in the pleadings, necessitating a de novo review by this Court.

NPK and PPC argue that Ms. Solis made a claim for redhibition, breach of contract, and violation of the New Home Warranty Act. They assert that, when the trial court found no claim under the New Home Warranty Act, and there was no basis for a redhibition claim, the matter should have been dismissed. Defendants/appellants defend this position by asserting that the only remaining claim, that of breach of contract, was defeated by the “as is” clause in the purchase agreement.

We are not convinced by this argument. It is well established that Louisiana is a fact pleading state under the Louisiana Code of Civil Procedure. As long as the facts constituting a claim are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence. The theory of the case doctrine, under which a party must select a theory of his case or defense and adhere to it throughout the litigation, has been abolished. Plaintiff must set forth facts surrounding the claim but is not required to assert all theories of recovery. Furthermore, courts should construe pleadings so as to achieve substantial justice and in order to reach the truth, should avoid the application of harsh, technical rules of pleading. In this case, Ms. Solis’ petition sets forth facts which support an action in breach of contract for the agreement between the parties referred to as the punch list.

| ¡¡Because we find no merit in this argument, we will review the findings of the trial court using the manifest error standard of review.

It is clear from the transcript that the trial judge found there were no redhibitory defects in the condo. The trial judge further found that the punch list was a valid agreement between the parties to modify the “as is” agreement. We find that the testimony and exhibits support that finding.

At the trial, Ms. Solis testified that, after her home in Chalmette was destroyed in Hurricane Katrina, she lived in Monroe, Louisiana; Houston, Texas; and then Slidell, Louisiana before she got a FEMA trailer in June 2006. In March 2006, Ms. Solis signed a purchase agreement to buy the condo at issue herein and was originally told the condo would be ready in about 90 days. However, in November she was informed that the condo would not be ready for another 90 days. Subsequently, she was given a date of April 30, 2007 for the closing. That date was not met by NPK and PPC. Because Ms. Solis was anxious to move out of her FEMA trailer and into her condo, she agreed to close on the condo before all of the construction work was complete. At that point, the parties agreed to enter into the “punch list” agreement. Originally, Ms. Solis typed out a document listing work that was not yet completed. That list was revised twice before the act of sale on June 20, 2007 to reflect work still unfinished as well as some repair work to correct work improperly done.

Ms. Solis gave extensive testimony regarding work that was not completed and/or not completed properly, including improperly laid granite floor tiles, the absence of kick plates, problems with cabinets, the cooktop in the kitchen, and the Jacuzzi bath. She also testified that efforts by the defendants/appellants to complete work contained in the punch list caused further damage, especially to the wood floors.

1 fiPraveen Kailas was stipulated to be the designated corporate representative of both NPK and PPC. He stipulated that the punch list was an agreement between the parties that reflected repairs NPK and PPC agreed to make to Ms. Solis’ unit. It is clear that it was intended that NPK and PPC would bear the costs of repairs and completion of work encompassed by the punch list and that NPK and PPC sent either employees or subcontractors to Ms. Solis’ home in an attempt to comply with the agreement.

Ms. Solis offered the testimony of Troy Shirley, who was accepted as an expert in public adjusting of construction. He testified that he investigated Ms. Solis’ claim and completed a report of the damage and the cost of repairs. Both the report and the list of damages with costs are contained in the record. Mr. Shirley also gave the establishments from which the prices were obtained in most cases.

Therefore, we find no error in the trial court’s finding that a contract existed between the parties that was breached by NPK and PPC.

Based on the finding that the punch list was a valid contract between the parties and that the work was either not completed or caused further damages, the trial court awarded Ms. Solis $28,192.35.

NPK and PPC seem to argue that the judgment and damages are based in tort and, therefore, improperly awarded. In support of this argument, they refer us to general law relating to the responsibility of employers for damages caused by subcontractors. We find no support for that argument in the record. The damages awarded are all actual damages caused directly from the breach of the punch list agreement. They were completely supported and delineated by the testimony of Mr. Shirley and Ms. Solis as well as the documentation introduced into the record. It is clear that the trial judge found that NPK and PPC agreed to repair and 17complete certain items at their own expense and failed to do so. The judgment sounds in breach of contract, not tort. We find the law of principal/employer and employee/independent contractor is irrelevant under these facts. NPK and PPC were bound by contract to comply with the punch list at their expense. Accordingly, the court awarded actual damages for breach of this contract. We find no error in that judgment or in the award of damages.

For the reasons set forth in this opinion, we affirm the trial court’s judgment, and we assess costs of appeal to defendants/appellants, NPK and PPC.

AFFIRMED.

      . Ellis v. Normal Life of La., 93-1009 (La.App. 5 Cir. 5/31/94), 638 So.2d 422, 427.

      . First S. Prod. Credit Assoc. v. Georgia-Pacific, 585 So.2d 545, 548 (La.1991).

      . Gisclair v. Matmoor, Inc., 537 So.2d 876, 879 (La.App. 5 Cir. 1989).

      . See, La. C.C. art. 2320.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Theresa L. McDONALD v. AIG NATIONAL INSURANCE COMPANY, INC. and Mary W. Dee.
    No. 10-CA-751.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.

      James B. Guest, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant.
    P.M. Donovan, James L. Donovan, Jr., Attorneys at Law, Metairie, LA, for Defendant/Appellees.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

lain this personal injury action, plaintiff appeals from the trial court’s award of damages. For the reasons stated herein, we affirm.

Theresa L. McDonald filed this petition for damages against AIG National Insurance Company, Inc. and Mary W. Dee as a result of injuries she sustained in an automobile accident on October 18, 2008. Following a bench trial, judgment was rendered in favor of plaintiff and against defendants for general damages in the amount of $20,000 plus special damages in the amount of $16,199.91. Plaintiff now appeals from this judgment, arguing that both the general and special damage awards are insufficient.

Vast discretion is accorded the trier of fact in fixing general damage awards. La. Civ.Code art. 2324.1; Dufrene v. Gautreau Family, LLC 07-467 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, 81, writs denied, 08-629 (La.5/9/08), 980 So.2d 694 and 08-628 (La.5/9/08), 980 So.2d 698. The trier of fact is afforded much discretion in assessing the facts and rendering an|saward because it is in the best position to evaluate witness credibility and see the evidence firsthand. Bouquet v. Wal-Mart Stores, Inc., 08-309 (La.4/4/08), 979 So.2d 456, 459. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at 1260. To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. Bouquet v. Wal-Mart Stores, Inc., supra, 979 So.2d at 459.

The severity and duration of the injured person’s pain and suffering are the primary considerations in assessing general damages. Francis v. Brown, 95-1241 (La.App. 3 Cir. 3/20/96), 671 So.2d 1041. An appellate court may raise the award to the lowest reasonable amount or reduce it to the highest reasonable amount, only if articulable reasons are found to show that a reasonable trier of fact could not have made the award under all of the circumstances of the case. Williams v. Maritime, Inc., 04-625 (La.App. 5 Cir. 11/30/04), 889 So.2d 1055, writ denied, 04-3226 (La.3/11/05), 896 So.2d 72.

Special damages, unlike general damages, are susceptible of being established with reasonable mathematical certainty. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. To recover medical expenses, whether past or future, a plaintiff must show, through medical testimony, both the existence of the injury and a causal connection between |4the injuries and the incident of which plaintiff complained. The manifest error standard controls on the issue of the assessment of special damages. Wright v. General Aviation Co., 04-772 (La.App. 5 Cir. 11/30/04), 889 So.2d 1115, 1120.

Plaintiff testified at trial that she injured her knees and her neck in this automobile accident. Several days after the accident, plaintiff saw an orthopedist who performed an MRI of her right knee which revealed torn ligaments. She also saw a chiropractor for approximately one month after the accident to resolve her neck pain. She also saw an orthopedist for her neck pain, and an MRI was taken of her cervical spine, but plaintiff declined to accept injections offered by this physician.

In June of 2009, plaintiff underwent outpatient arthroscopic surgery on her right knee. She wore a brace for a few weeks after the surgery and also participated in physical therapy. Plaintiff testified that she still suffers from knee pain one and one-half years after the accident, and that the pain causes her several limitations, including difficulty driving, gardening, kneeling and bike riding. She also testified that her neck had not improved in the year after the accident and that she is in pain all of the time.

The record also contains evidence that plaintiff suffered prior injuries to her knees, and she denied reporting this to her treating physicians. The medical evidence also contained a notation that plaintiff injured her knees and back in February of 2009 lifting a heavy object. At trial, plaintiff denied giving this information to medical personnel. Further, the medical records contain information that plaintiff related to the orthopedist treating her neck that a manipulation by the chiropractor had caused the current pain in her neck.

|.sPlaintiffs treating orthopedist, Dr. Charles Haddad, testified that he first saw plaintiff in December of 2008 and that MRI imaging showed she sustained a tear of the medial meniscus in her right knee. She also had degenerative joint arthritis which was consistent with a sixty-year-old person. He gave plaintiff an injection for swelling and pain, a knee brace, and a prescription to start physical therapy. Plaintiff returned on January 14, 2009 and Dr. Haddad continued to recommend physical therapy. Plaintiff returned on March 18, 2009 and reported that she was still experiencing knee pain and wanted to have surgery. Arthroscopic surgery was performed on an outpatient basis on June 3, 2009 and plaintiff was sent home on crutches with pain medication. Plaintiff started physical therapy and reported that this was causing her pain. Dr. Haddad then recommended that plaintiff hold off on more physical therapy and perform less strenuous home exercises. Dr. Haddad believed that plaintiffs prognosis was good if she were able to tolerate a good round of therapy and build up her strength and endurance. Dr. Haddad also believed the automobile accident caused the tear in plaintiffs right knee.

On cross-examination, Dr. Haddad stated that a meniscus tear usually occurs with a twisting of the leg and not when the knee hits a car dashboard such as what occurred here. He also hoped plaintiff would have gone to physical therapy more regularly before deciding to have surgery. He also stated that plaintiff denied previous knee injuries, and it would be possible that the car accident aggravated a previous injury.

Plaintiff also submitted the testimony of her daughter who testified regarding her mother’s limitations following this accident. In addition, plaintiff submitted medical bills in the amount of over $21,000.

| r,Following trial, judgment was rendered in favor of plaintiff for general damages in the amount of $20,000.00 and special damages in the amount of $16,199.91, approximately $5,000 less than the amount of medical bills submitted by plaintiff. Plaintiff argues that the general damage award is abusively low and should be increased to a reasonable amount and that the special damage award should be increased based on the bills offered at trial.

Both plaintiff and defendant submit jurisprudence to this Court to support their position regarding the adequacy of the award. We have reviewed these cases, and we find a variance of factual scenarios in each case which impacted the varied awards. After a review of the testimony and evidence in this particular case, we find that the award of $20,000 adequately compensates plaintiff for her injuries. The trial judge found plaintiff’s injuries were caused by the accident, but also heard testimony that plaintiff suffered from preexisting injuries. Under the circumstances presented here, we cannot say that the award is below that which a reasonable trier of fact could assess. Accordingly, because we find that the general damages awarded by the trial court are within its vast discretion, they cannot be disturbed on appeal.

The trial court refused to award special damages for the particular neck treatment sustained by Mrs. McDonald, as it apparently found no causal relation to the accident. The medical records submitted into evidence indicate that plaintiff related to Dr. Waguespack that her neck pain was due to manipulation from the chiropractor, and the trial court evidently concluded that some of plaintiffs neck pain was not attributable to the automobile accident. These conclusions are supported by the record and are |7not manifestly erroneous or clearly wrong. Accordingly, we will not increase the award of special damages.

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

AFFIRMED