author: WILLIAMS, J.

text:
    Mark David CORRAL, Plaintiff-Appellee v. Eloisa CORRAL, Defendant-Appellant.
    No. 47,294-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 13, 2012.

      John N. Bokenfohr, for Appellant.
    Kelly L. Long, Terri K. Oliver, for Ap-pellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   WILLIAMS, J.

|,In this child custody dispute, the mother, Eloísa Corral, appeals a trial court judgment designating the father, Mark David Corral, as domiciliary parent of the minor child. For the following reasons, we affirm.

FACTS

Mark David Corral and Eloísa Corral were married on April 28, 2005. Of the marriage, one child, Devronic, was born on September 19, 2005. On July 23, 2010, Mark filed for divorce, requesting joint custody of Devronic. He also requested that he be designated domiciliary parent of the child. Eloísa filed an answer and re-conventional demand, requesting that she be designated domiciliary parent of Dev-ronic.

On October 7, 2010, the parties entered into a joint stipulation, whereby they agreed to joint custody of Devronic. The visitation schedule provided that Eloísa would have physical custody of Devronic from 12:00 p.m. Sunday until 8:00 a.m. Thursday “or upon delivery at school”; Mark would have physical custody of Dev-ronic from 8:00 a.m. Thursday until 12:00 p.m. Sunday. The order also provided that in the event that Mark had to work evenings during his periods of custody, Eloísa would have “the right of first refusal to keep the minor child while [Mark] is at work.” The order also prohibited both parties from “entertain[ing] overnight guests of the opposite sex not related by blood or marriage while the minor child is present.” The trial court entered a consent judgment ratifying the joint stipulation. The court also appointed Sandi Davis, a licensed professional counselor, to conduct a mental health evaluation of the parents and the|2child.

A trial to determine custody of the child was held on October 21, 2011. The evidence established the following: Devronic is currently in the first grade; he is well-behaved and makes good grades; Eloísa is employed as a bartender at a concert venue in Bossier City; she works weekends, which allows her to be with Devronic on weekdays; Eloísa was born in the Philippines and has been in the United States since 2001; Eloísa has not obtained her United States citizenship; Mark is currently a member of the United States Air Force, stationed at Barksdale Air Force Base; he works as an aircraft repairman; his normal work schedule is from 11:00 p.m. until 7:00 a.m. Sunday night through Friday morning; when he has to work during his periods of visitation, Devronic is with Eloísa or a babysitter; Mark has been deployed at least once per year during the marriage; each deployment has lasted for four months; Mark also has had temporary duty (“TDY”) assignments; each TDY assignment has lasted from eight days to two weeks; Eloísa takes care of Devronic during Mark’s deployments and TDY assignments; Eloísa attends all of Devronic’s school events and has been primarily responsible for making sure his homework assignments are completed; Mark handles the homework assignments when Devronic is with him; Mark does not attend school events.

At the conclusion of the trial, the court awarded joint custody of Devronic to Mark and Eloísa, with Mark being designated the domiciliary parent. Mark and Eloísa were ordered to “split custodial care” of the child as follows:

|sELOISA CORRAL shall have visitation with the minor child every Monday after school until the following Thursday 8:00 a.m. when the child is returned to school and alternating Sundays from 9:00am until 2:00pm;
MARK DAVID CORRAL shall have custodial care of the minor child from Thursday after school until the following Monday when the child is returned to school[,] with the exception of alternating Sundays from 9:00 a.m. until 2:00 p.m. as enumerated above.

The court also awarded specific visitation for Mother’s Day, Father’s Day, Easter, Spring Break, Thanksgiving and Christmas. The order further provided that should either parent have to work during their periods of visitation, then “they shall contact the other parent and offer them the right of first refusal to care [for] the minor child before leaving the minor child with another family member or babysitter.”

Eloísa appeals.

DISCUSSION

Eloisa contends the trial court erred in failing to consider all of the factors set forth in LSA-C.C. art. 134 when designating the father as the domiciliary parent of the minor child. She also argues that the court failed to address evidence of Mark’s alleged extramarital affairs and “sexual lifestyle.”

It is well settled in our statutory and jurisprudential law that the paramount consideration in any determination of child custody is the best interest of the child. LSA-C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Semmes v. Semmes, 45,006 (La.App.2d Cir.12/16/09), 27 So.3d 1024; Shivers v. Shivers, 44,596 (La.App.2d Cir.7/1/09), 16 So.3d 500. The court is to consider all relevant factors in ^determining the best interest of the child. LSA-C.C. art. 134.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in LSA-C.C. art. 134, but should decide each case on its own facts in light of those factors. Semmes, supra; Robert v. Robert, 44,528 (La.App.2d Cir.8/19/09), 17 So.3d 1050, writ denied, 2009-2036 (La.10/7/09), 19 So.3d 1; Bergeron v. Bergeron, 44,210 (La.App.2d Cir.3/18/09),5 6 So.3d 948. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id.

LSA-R.S. 9:335(A)(2)(b) provides that, to the extent feasible and in the best interest of the child, physical custody of the child should be shared equally. However, the law is clear: substantial time, rather than strict equality of time, is mandated by the legislative scheme providing for joint custody of children. Semmes, supra; Stephenson v. Stephenson, 37,323 (La.App.2d Cir.5/14/03), 847 So.2d 175.

The trial court has vast discretion in deciding matters of child custody and visitation. Semmes, supra; Slaughter v. Slaughter, 44,056 (La.App.2d Cir.12/30/08), 1 So.3d 788; Gaskin v. Henry, 36,714 (La.App.2d Cir.10/23/02), 830 So.2d 471. Therefore, the trial court’s determination will not be disturbed on appeal, absent a clear showing of an abuse of discretion. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Semmes, supra; Slaughter, supra. As long as the trial court’s factual findings are reasonable in light of the record when reviewed in its entirety, the appellate court may not reverse even though convinced it would have weighed the evidence differently if acting as the trier of fact. Id.

In the instant case, Eloisa and Mark testified that Devronic is a bright, well-adjusted child. Eloisa testified that she is a good parent to Devronic; Mark testified that he is a good parent to Devronic. They both agreed that the current custody and visitation schedule works “pretty good for the most part.” However, both expressed concerns about Devronic’s environment | fiwhen he is with the other parent.

Ms. Davis, who conducted the mental health evaluation of the parties, prepared the following recommendation:

It is recommended for Eloisa and Mark Corral to have a joint custody plan with Eloisa having physical custody of the minor [child] from Monday after school until Thursday morning. Mark should continue to have the child every Thursday, picking him up from school and taking him back to school Monday morning. Eloisa should have [the child] every other Sunday from 9am-2pm so she can take him to church. I am seriously concerned about the overall influence Eloisa has on [the child]. She hasn’t handled her temper very well and doesn’t seem to have a moral compass to know how to filter what her brain thinks and what comes out of her mouth. [The child] needs to be positively influenced and guided in the right direction. He is a precious little boy who has begged his parents to stop talking to each other and to stop fighting over and over. He has struggled and wondered if his daddy was going to take care of him and had doubt in his voice when wondering if his mother would take care of him. Eloisa is working on gaining her United States citizenship that she doesn’t have at this point. There was some discussion about her moving to San Antonio to be with her family. Although this is not a relocation evaluation, I would recommend that [the child] not be allowed to move away from his father. Because of Mark being in the military, he is likely to be deployed again sometime in the future, which should be the only time that [the child] is left in his mother’s care.
* * ⅜

Ms. Davis described Devronic as “very energetic and just very lively.” She stated that he had “a lot of affection for both of his parents[.]” Ms. Davis testified that Devronic seemed more attached to Mark, and he had verbalized that he wanted to spend more time with Mark. She described the communication between Mark and Eloisa as “very volatile at times.” After evaluating both parents and the child, Ms. Davis recommended that Mark be designated the domiciliary parent because “I thought based on all |7that I have had, information wise, that [Mark] would be better suited for that.” On cross examination, Ms. Davis admitted that Eloisa’s morality was a “big, big concern.”

Gayle Breffeilh, a licensed clinical social worker, was accepted by the court as an expert in family counseling and anger management. Ms. Breffeilh testified that she provided counseling services to Eloisa for approximately one year, beginning in June, 2010. She stated that Eloisa voluntarily sought counseling for co-parenting concerns, stress management, anger management and issues associated with the separation and divorce. Ms. Breffeilh also testified that Eloisa expressed anger regarding limited financial means and her belief that Mark would “manipulate the system and she would not be treated fairly.” She stated that during counseling sessions, Eloisa learned methods of reducing stress and to “walk away and calm down” prior to getting “to the point where you’re going to curse or yell.” Ms. Bref-feilh also testified that she observed significant progress in Eloisa’s stress management and anger management. She opined that Eloisa’s episodes of anger would decrease as long as she continued to follow through with the techniques she learned in counseling.

Mark and Eloisa both testified regarding accusations of infidelity during their marriage. Mark testified that he never had a sexual relationship with anyone other than Eloisa during their marriage. He stated that Eloisa accused him of having affairs “multiple times.” She even went so far as to report him to his first sergeant. He was investigated for adultery but was never disciplined for any misconduct. He admitted that he stopped having | «sexual intercourse with Eloisa because they argued “all the time” and he felt “no emotion” toward her. He also testified that it was typical for Eloisa to lose her temper and use profane and vulgar language. Mark further testified that Devronic would sometimes repeat comments made by Eloi-sa.

Eloisa testified that Mark engaged in “quite a few” extramarital affairs during their marriage. She also stated that she once confronted a woman about having an

affair with Mark and ended up being “detained” by military police for creating a disturbance. Eloisa also admitted that she confronted one of Mark’s female coworkers about having an affair with Mark, warning the woman to “stay away from my family.” Eloisa later learned that she had targeted the wrong woman, so she apologized to the woman. She testified that she suspected that Mark has having affairs because he stopped having sex with her during the second year of their marriage. Eloisa also testified that Mark did not pay the household bills during his last deployment and “drained all of the money” from their joint bank account. Eloisa admitted that she had engaged in an extramarital affair during Mark’s last deployment. She also admitted to the following disturbing behaviors:

— she has experimented with cocaine, but she lied to Ms. Davis about it because she was “scared”;
— she served beer at Devronic’s sixth birthday party. She stated that only the adults drank the beer, and “I’ve never been to any sort of birthday party where they didn’t even at least serve ... some sort of beer. And I didn’t think that [it is] illegal at all, just, you know, for some adults”;
In— despite the trial court’s order, she has had sexual intercourse with a man while Devronic was asleep in the house; the man has spent the night with her while Devronic was there;
— she has had parties, some of which have lasted until 4 a.m., while her son slept. She stated, “I don’t understand what’s wrong with that as long as my son was in bed ... and taken care of’;
— she has used vulgar language and berated Mark in Devronic’s presence “plenty of times.”

Several photographs of Eloisa were admitted into evidence. In one photograph, she was smiling into the camera while squatting in her parents’ driveway, with her dress around her waist and her panties around her thighs. She testified that she was urinating outside because she could not wait until someone came to the door. Other photographs depicted Eloisa scantily dressed and partying on top of bars, sticking her tongue out near a woman’s belly button, and drunkenly dancing with her dog with her panties exposed. She stated, “I’m a good mother, but I’m still alive. There is no reason for me to just act like I can’t have fun. I’m still young.”

Additionally, a compact disc containing a recording of an argument between Mark and Eloisa was admitted into evidence. On the recording, Eloisa was heard screaming and using vulgar language, while Devronic was heard saying, “Stop fighting.” Eloisa testified that Mark “picked a fight” with her and started recording “as soon as I was already fired up.” She admitted that she used profanity in the presence of her child and did not stop when the child asked her to do so because “it was already too late.” She blamed Mark for starting the argument because “he knew what was going to happen.” During the argument, Eloisa berated Mark, and Devronic began to |inmimic some of the derogatory comments she had directed toward Mark. Additionally, text messages were introduced into evidence in which Eloisa made insulting and vulgar comments to Mark.

Ms. Davis expressed concern about Eloi-sa’s inability to control her anger once she becomes “fired up.” She also expressed concern about the recorded “berating comments, hearing the derogatory remarks” Eloisa made against Mark in front of Dev-ronic. She stated, “I know that neither of these parents are [sic] perfect, but that whole attitude was very disturbing to me.”

With regard to the recording, Ms. Bref-feilh testified that her primary concern was that the conduct took place “within earshot of the child.” She stated that such conduct, if done habitually, would be “very detrimental to the child.”

Several former neighbors of the couple also testified at the trial. Tasha Holmes testified that she lived near Mark and Eloisa when they lived on Barksdale Air Force Base. She stated that during Mark’s deployment, Eloisa would host parties when Devronic was present. She also testified that on one occasion, her husband found Devronic, who was two or three years old, outside the house alone. Ms. Holmes stated that her husband carried the child home.

Christy Swanton testified that she lived next door to Mark and Eloisa, and she and Eloisa were “best friends” at one time. She stated that Eloisa’s “partying” increased when Mark was deployed; Eloisa would leave Devronic with her family when she went out. On one occasion, Eloisa stayed out all night, returning in the middle of the afternoon the following In day. Ms. Swanton also testified that her friendship with Eloisa ended when their “hanging out, partying” began to negatively affect Swanton’s marriage.

Tamara Rangel, another former neighbor testified as follows: she met Mark through her neighbor, Christina, in June or July of 2010; she did not meet Eloisa until “around November” of 2010; she knew Eloisa “as an acquaintance,” but she knew Mark “on a friendship level”; Mark had mentioned Eloisa to her and told her that “he was going through a divorce, that they were separated”; Mark and Christina were “very friendly”; she had seen Mark and Christina kissing “multiple” times; one day, between October and December 2010, she went to Christina’s house and saw Mark outside on the sidewalk; she entered Christina’s house and saw Christina “laying [sic] naked on the couch” while Devronic was upstairs asleep; Mark had stated to her that Devronic “knows not to tell mommy about Christina”; she had seen some of Mark’s belongings at Christina’s house; she knew Mark and Christina were sexually involved based on comments made by Christina; Mark attended parties at her house and allowed Devronic to stay up and play video games until “four and five in the morning”; during the parties, Devronic witnessed “all the partying, the drinking, [and] the drinking games”; she, Christina and Mark are no longer friends; she and her friend, Rachel, approached Eloisa and told her about Mark’s affair with Christina.

Rachel Vowell, who lived approximately five blocks from Mark and Eloisa, testified as follows: she met Eloisa in 2009 when their children began pre-kindergarten; she and Eloisa became friends; she met Mark in the 112fall of 2010; she had seen Mark and Christina together several times; she had observed Mark and Christina kissing at a party at Ms. Ran-gel’s house; she had seen Mark at Christina’s house on multiple occasions; she had seen Mark’s belongings at Christina’s house; she had seen Devronic at Christina’s house “five or six times”; she had seen Devronic at some of the parties at Ms. Rangel’s house, and he would be “in the house, downstairs watching TV”; she and Mark had discussed his marriage, and it was her understanding that he and Eloisa were getting a divorce when she first met him; she approached Eloisa and told her that Mark and Devronic were sometimes sleeping at Christina’s house.

Erica Keammerer, Christina’s former next-door neighbor, testified as follows: she first started seeing Mark and Christina together in “mid-July, early August” 2010; she observed Mark and Christina kissing on many occasions; she had seen some of Mark’s belongings at Christina’s house; she had observed Mark and Devronic “sneaking” through a field behind Christina’s house and entering Christina’s house through the back door; she had witnessed Mark and Christina “coaching” Devronic to withhold information about Christina from Eloisa; she met Eloisa on the evening that Eloisa confronted Christina about Christina’s affair with Mark; she and Eloisa became friends thereafter.

After hearing the testimony and weighing the factors set forth in LSA-C.C. art. 134, the trial court stated:

Quite frankly, I think both of the parties have shown instances of poor judgment.
I also think that ... the parties and some of the witnesses | ismay have been less than honest or truthful to the Court and to Ms. Davis. [W]hat I’m here to do is try to sift through all of that and come up with something that I believe is in the best interest of this young ... child.
[I] have carefully considered article 134 of the Civil Code, as I’m required to do. Actually, many of the factors that are listed I felt like that it would be hard to really find more in favor of one parent over the other[,] but the factors that I found that weigh in favor of Mr. Corral would be numbers 3, 5, 6, 7 and 10. The other factors, I believe, are perhaps even between both parties. I believe it would be in the best interest of this child for the father to be the domiciliary parent. I will award joint custody.

We have reviewed this record in its entirety and are convinced that Eloísa and Mark are both loving parents. However, the paramount goal in custody cases is reaching a decision which serves the best interest of the child. Based on the record before us, we find that the trial court did not abuse its discretion in concluding that awarding primary domiciliary custody to Mark was in Devronic’s best interest. The court observed the demeanor of the parties and the witnesses and expressly noted its belief that both parties and some of the witnesses had been “less than honest” with the court. However, the court clearly concluded that certain factors, namely the ability to provide the child’s necessities, permanence, moral fitness, mental health, and willingness to facilitate and encourage a continuing relationship between the child and the other party, weighed in favor of Mark.

The trial court also heard testimony with regard to the parties’ previous sharing of the physical custody of Devronic, and the occasional lack of cooperation on Eloisa’s part in permitting Mark to speak with Devronic on the telephone during her nights of physical custody. | ^Furthermore, the court was presented with evidence of both parties’ tendencies to exercise poor judgment. It is apparent that the court endeavored to fashion the best arrangement for Devronic to continue a close relationship with both parents, while ensuring his safety and well-being. Furthermore, the visitation schedule ordered by the trial court is markedly similar to the arrangement agreed upon by the parties. The trial court’s factual findings are supported by the record. We find no manifest error in the trial court’s factual findings and conclusions in this regard.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to the appellant, Eloí-sa Corral.

      . LSA-C.C. art. 134 provides, in pertinent part:
      Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . The confrontation and subsequent detainment took place approximately two months after Mark filed for divorce.


source: Caselaw Access Project

author: McCLENDON, J.

license: Public Domain

text:
    Taddese TEWELDE & Tewelde’s Lafitte Drugs, d/b/a Piggly Wiggly v. LOUISIANA BOARD OF PHARMACY.
    No. 2011 CA 2244.
    Court of Appeal of Louisiana, First Circuit.
    June 14, 2012.

      Edward S. Bopp, Mandeville, LA, for Plaintiff/Appellant Taddese Tewelde & Tewelde’s Lafitte Drugs.
    Celia R. Cangelosi, Baton Rouge, LA, for Defendant/Appellee Louisiana Board of Pharmacy.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

12This is an appeal from a district court judgment affirming sanctions and fines levied by the Louisiana Board of Pharmacy against a pharmacist and pharmacy after an administrative hearing. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Taddese Tewelde was licensed as a pharmacist in 1977. Mr. Tewelde owns and serves as a pharmacist at Tewelde’s Lafitte Drugs (Lafitte Drugs) in Lafitte, Louisiana, which opened in 1981.

The population of Lafitte is approximately 1,500 people. It is located on a two-lane highway about 30 minutes south of the west bank of New Orleans. It is on a peninsula-like projection close to the Gulf of Mexico and is surrounded by water on both sides. As Mr. Tewelde affirmed, one has “to be going to Lafitte to get there” and it is “not on the way to anywhere else.”

During the first three months of 2010, Lafitte Drugs ordered a significantly larger amount of schedule II drugs from its wholesale supplier, Morris & Dickson Drug Company, than it had typically ordered in the past. Because of this substantial increase in sales of schedule II narcotics to Lafitte Drugs, Morris and Dickson, as it was required to do, reported the purchases to the United States Department of Justice Drug Enforcement Administration (DEA). On April 8, 2010, after learning that most of the prescriptions were from Texas health care providers and that those having them filled were paying with cash, Morris and Dickson ceased all sales of controlled dangerous substances to the pharmacy.

After reviewing reports from the Automated Reports Consolidated Order System (ARCOS), a database where all distributors report sales of schedule II Rand schedule III substances, the DEA, as well as the Louisiana Board of Pharmacy, began an investigation into the pharmaceutical sales at Lafitte Drugs. Specifically, ARCOS reports reflected that for the year 2009, Lafitte Drugs purchased a total of 39,200 dosage units of oxycodone, a schedule II narcotic, ranking it the 307th highest purchaser in the state. In contrast, in the first three months of 2010, Lafitte Drugs purchased 147,300 units of oxyco-done, ranking it the 3rd highest purchaser in the state behind only two pharmacies in metropolitan areas. Further, Louisiana pharmacies purchased an average of only 9,194 dosage units of oxycodone for the three months in 2010.

The Louisiana Board of Pharmacy also operates a Prescription Monitoring Program (PMP). PMP analysis of the controlled dangerous substance prescriptions dispensed by Lafitte Drugs for the three and a half month period of 2010, i.e. January 1 to April 14, 2010, established that 78% (3,048 of 3,912) were from Texas pres-cribers, while only 21.5% (843 of 3,912) were from Louisiana prescribers. Additionally, only 3% of the drugs dispensed from Louisiana prescribers were oxyco-done products, while 30% of the drugs dispensed from Texas prescribers were ox-ycodone products.

On April 14, 2010, two DEA investigators and Ben Whaley, a compliance officer for the Louisiana Board of Pharmacy, investigated Lafitte Drugs. When asked about the large number of out-of-state prescriptions, Mr. Tewelde indicated that pri- or to filling any of the schedule II prescriptions, the pharmacy would verify the prescription by calling the office of the health care provider that issued the prescription and providing the office with the patient’s name and date of birth. In turn, the health care provider would verify the prescription. | .(Additionally, Mr. Tewelde indicated that he only filled prescriptions for individuals with Louisiana identification cards, and he maintained photocopies of the identification cards.

Given that the Texas prescriptions were mainly from the Houston area, Mr. Tew-elde was questioned regarding why these individuals would travel 375 miles to Lafitte, Louisiana, to have the prescriptions filled. Mr. Tewelde responded that “[o]ne of the main reason[s] is probably they couldn’t fill it somewhere else,” yet he could not explain why other pharmacies would not fill the prescriptions. Mr. Tew-elde also admitted that the individuals from Texas never used insurance, paying either with cash or a credit card, with some single prescriptions costing between $2,500.00 to $3,500.00.

Rasheda Carter, a relief pharmacist at Lafitte Drugs, declined to fill the out-of-state prescriptions and testified that it did “cross [her] mind” why people would drive all the way to Lafitte Drugs from Houston to get their prescriptions filled. She noted that often times two or three people would come in together with schedule II prescriptions to be filled. She also testified that other pharmacies where she was working in the area during the same time frame were not getting Texas prescriptions.

Following an investigation, the Louisiana Board of Pharmacy issued Complaint Number 10-0097 against Tewelde’s Lafitte Drugs, Permit No. 1159-IR, and Complaint Number 10-0098 against Taddese Tewelde, License No. 11262, alleging violations of a multitude of state and federal statutes and regulations.

As noted by the Board, a prior inspection in 2008 revealed that the pharmacy had been filling prescriptions issued by Texas prescribers and that the pharmacy had been informed about “corresponding responsibility” of a pharmacist when filling Texas prescriptions. During the 2008 inspection, several other problems were identified, including that the pharmacist on duty was not signing the pharmacist register, that some post-dated prescriptions had been | ¿filled early, and that some prescriptions containing only the physicians’ stamped or electronic, as opposed to handwritten, signature had been filled. These issues were also discussed with Lafitte Drugs at that time.

Mr. Whaley, who had performed the previous inspection, indicated that the 2010 investigation revealed that many of the same issues that had been previously discussed with the pharmacy persisted after the 2008 inspection. He noted that some of the Texas prescriptions had been issued with only a doctor’s stamped signature on the hardcopy of the prescription and that some prescriptions had been filled prior to the date they had been authorized. Additionally, the relief pharmacist had not signed the pharmacist register since March 2, 2010.

Mr. Whaley also opined that although Lafitte Drugs claimed to be fulfilling its responsibility by verifying the out-of-state prescriptions, Mr. Tewelde continued to dispense prescriptions issued by two Texas prescribers after their DEA licenses were suspended. DEA officials also noted that many of the Texas prescriptions filled by Lafitte Drugs were not issued on valid Texas prescription pads. Additionally, DEA noted that nurse practitioners in Texas had issued some of the schedule II narcotic prescriptions filled by Lafitte Drugs, although nurse practitioners in Texas are not authorized to issue schedule II prescriptions.

Following a hearing, the Louisiana Board of Pharmacy (the Board), found Mr. Tewelde guilty of violating a number of statutes and regulations, specifically including the following:

LSA-R.S. 37:1241(A)(1): Practiced or assisted in the practice of pharmacy, or knowingly permitted or has permitted anyone in his employ or under his supervision to practice or assist in the practice of pharmacy, in violation of the provisions of [the Louisiana Pharmacy Practice Act] and any rules and regulations promulgated thereto in accordance with the Administrative Procedure Act.
LSA-R.S. 37:1241(A)(3): Committed repeated occasions of negligence or incompetence in the practice or assistance in the practice of pharmacy.
I rLSA-R.S. 37:1241(A)(10): Has departed from or failed to conform to the minimal standards of acceptable and prevailing pharmacy practice, whether or not actual injury to a patient has occurred.
LSA-R.S. 37:1241(A)(15): Has evaded, or assisted, directly or indirectly, another person in evading any local, state or federal laws or regulations pertaining to the practice of pharmacy.
21 C.F.R. § 1306.11(a): A pharmacist may dispense directly a controlled substance listed in Schedule II ... only pursuant to a written prescription signed by the practitioner ...
21 C.F.R. § 1306.12(b)(1)(h): An individual practitioner may issue multiple prescriptions authorizing the patient to receive a total of up to a 90-day supply of a Schedule II controlled substance provided ... The individual practitioner provides written instructions on each prescription ... indicating the earliest date on which a pharmacy may fill each prescription ...
LAC 46:LIII.515(A): Prospective Drug Utilization Review. A pharmacist shall review the patient record and each prescription presented for dispensing for purposes of enhancing pharmacy care and therapeutic outcomes by recognizing the following potential situations: 1. drug over-utilization or under-utilization; 2. Therapeutic duplication; ... 7. clinical abuse/misuse.
LAC 46:LIII.515(B): Prospective Drug Utilization Review. Upon recognizing any of the above situations, the pharmacist, using professional judgment, shall take appropriate actions.
LAC 46:LIII.1127(A): Register. The pharmacy shall maintain a register in which each individual pharmacist dispensing a prescription shall sign a log each day, attesting to the fact that the information entered into the electronic record keeping system has been reviewed that day, and is correct as stated.
LAC 46:LIII.2745(A)(3): Prescriptions. Practitioners Authorized to Issue Prescriptions. A prescription for a controlled substance may be issued only by an individual practitioner who is ... in possession of a valid registration from the U.S. Drug Enforcement Administration (DEA), unless otherwise exempted from that registration requirement.
LAC 46:LIII.2747(E)(3): Dispensing Requirements. Professional Conduct. Forged Prescriptions. It is unlawful to forge a prescription, or to dispense a forged prescription, for a controlled substance. The pharmacist or dispensing physician shall exercise professional diligence in determining the validity of a prescription as to the practitioner’s authority and/or patient’s identity, in order to prevent misrepresentation, fraud, deception, subterfuge, conspiracy, or diversion of controlled substances.

More significantly, the Board also found that Mr. Tewelde violated the corresponding responsibilities of a pharmacist pursuant to LAC 46:LIII.2747(E) and (E)(2)(b), and that the pharmacy was guilty of violating the same statutes |7and regulations, with one additional violation relating only to a pharmacy. See LAC:46:LIII.1305(A).

The Board ordered that Mr. Tewelde’s license be suspended for an indefinite period of time and prohibited any application for reinstatement for a period of ten years. The Board also ordered that the pharmacy’s permit be suspended for a period of five years with execution thereof stayed, and then placed on probation for a period of five years, beginning at the original suspensive period. Additionally, Mr. Tew-elde was ordered to pay a fine of $15 for each of the 3,048 prescriptions identified by the Board as being dispensed contrary to the pharmacy laws and rules for a total of $45,720.00, and the pharmacy was ordered to pay a fine of $35 each for those same 3,048 prescriptions for a total of $106,680.00.

Following the Board’s denial of their application for rehearing, Mr. Tewelde and Lafitte Drugs appealed to the district court. The district court affirmed the decision of the Board, reasoning as follows:

After a review of the law and argument of the parties, the court determines that the Board sustained its burden of proof in finding that the prescriptions were not issued for a legitimate medical purpose and that [Mr. Tewelde] failed to discharge his corresponding responsibility when they were dispensed. The court notes, as did the Board, that Lafitte, La. is a very rural out of the way community located quite a distance from the Texas city where most of these prescriptions were written. In addition, there is a duty placed on a pharmacist to ascertain that a prescription for a drug commonly abused ... is a valid prescription. Despite plaintiffs assertion that phone calls were made to doctors’ offices when he got possibly suspicious prescriptions, there was evidence that this was [not] done. In particular, as noted above, many prescriptions were written by Texas doctors who had surrendered their DEA licenses prior to the date the prescription was filled.
In addition, the court does not find that the amount of the fines imposed against Mr. Tewelde and the pharmacy were excessive. The court finds that these fines represented the seriousness of the offenses committed by the plaintiff and were appropriate under the circumstances.

Mr. Tewelde and Lafitte Drugs (hereinafter sometimes collectively referred to as “appellants”) have appealed, assigning the following as error:

|SI- The evidence adduced by the Louisiana Board of Pharmacy neither supports nor sustains, by a preponderance of evidence, the necessary finding of fact that Pharmacist Tew-elde violated his statutory and regulatory corresponding responsibility in dispensing the challenged 3,048 prescriptions!.]
II. The Louisiana Board of Pharmacy acted in abuse of its discretion in denying Tewelde’s motion for rehearing based on the post-hearing production of phone records on his subpoena duces tecum substantiating the affirmative steps [that] were taken to confirm that that the challenged prescriptions were issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice!.]
III. In alternative to the foregoing two assignments, the Louisiana Board of Pharmacy abused its discretion in assessing fines against petitioners for 3,048 prescriptions when no finding of fact established that violations in all 3,048 instances occurred!,] [a]nd whether the fines, sanctions, and penalties imposed were exeessive[.]

STANDARD OF REVIEW

The Louisiana Administrative Procedure Act provides for judicial review over administrative adjudications. Louisiana Revised Statutes 49:964(G) provides:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

19Pursuant to paragraph G(6), the district court is a fact finder that weighs the evidence and makes its own conclusions of fact by preponderance of the evidence. Multi-Care, Inc. v. State, Dept. of Health & Hospitals, 00-2001, p. 4 (La.App. 1 Cir. 11/9/01), 804 So.2d 673, 675. Accordingly, while this court does not defer to the district court’s legal conclusions, we do defer to the district court’s factual determinations and use a manifest error standard of review where the legislature has empowered it with the function of fact finding. Id.

DISCUSSION

Appellants challenge the findings of violations of the regulations concerning “corresponding responsibility” pursuant to 21 C.F.R. § 1306.04(a) and LAC 46:LIII.2747(E) and (E)(2)(b), and how those violations relate to the Board’s findings regarding LSA-R.S. 37:1241(A)(1)(3)(10), and (15).

Appellants contend that the evidence adduced by the Board does not support and sustain by a preponderance of the evidence that Mr. Tewelde violated his statutory and regulatory corresponding responsibility in dispensing the 3,048 prescriptions. “Corresponding responsibility” is the regulatory requirement, both federal and state, recognizing that, while a physician has the primary responsibility to issue a prescription for a controlled dangerous substance for a legitimate medical purpose, a corresponding responsibility rests with the dispensing pharmacist to ascertain that the prescription was issued for a legitimate medical purpose in the usual course of professional practice.

Specifically, 21 C.F.R. § 1306.04(a) provides:

A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fílls the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly 'filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances. [Emphasis added.]

|inAnd the state regulation at issue, LAC 46:LIII.2747(E), provides, in pertinent part:

Professional Conduct. A license, registration, certification, permit, or any other credential deemed necessary to practice, or assist in the practice of, pharmacy may be subject to discipline when deviating from primary or corresponding responsibility to avert the following prohibited acts.
2. Corresponding Responsibility
a. Medical Purpose. The prescribing practitioner has the primary responsibility to issue a prescription for a controlled substance for a legitimate medical purpose, but a corresponding responsibility rests with the pharmacist or dispensing physician dispensing said prescription to ascertain that said prescription was issued for a legitimate medical purpose in the usual course of professional practice.
b. Authenticity. A pharmacist or dispensing physician shall exercise sound professional judgment to ascertain the validity of prescriptions for controlled substances. If, in the pharmacist’s professional judgment, a prescription is not valid, said prescription shall not be dispensed.

The federal Fifth Circuit, in interpreting 21 C.F.R. § 1306.04(a), indicated that “[sjtanding alone, the phrase ‘corresponding responsibility' is not crystal clear, but when read in context the regulation gives adequate notice of proscribed conduct to pass muster.” United States v. Hayes, 595 F.2d 258, 261, n. 6 (5th Cir.1979). “What is required of [a pharmacist] is the responsibility not to fill an order that purports to be a prescription but is not a prescription within the meaning of the statute because he knows that the issuing practitioner issued it outside the scope of medical practice.” Hayes, 595 F.2d at 261. The court noted that under certain circumstances, “a pharmacist can know that prescriptions are issued for no legitimate medical purpose without his needing to know anything about medical science.” Hayes, 595 F.2d at 261, n. 6.

When 21 C.F.R. § 1306.04(a) was later challenged on due process grounds, the Fifth Circuit, in finding the provision constitutionally valid, noted:

The regulation is not irrational: the “corresponding responsibility” is corresponding. The physician’s responsibility is not to prescribe improperly while the pharmacist’s responsibility is not to dispense a controlled substance for non-medical reasons. The regulation does not place an unduly heavy burden on the pharmacist. Proof is required that the pharmacist had reason to h ¶ believe that the prescription was not issued in the usual course of professional treatment. ... The regulation is not unconstitutional in placing a corresponding responsibility on a pharmacist that controlled substances be prescribed in the usual course of professional responsibility-

United States v. Henry, 727 F.2d 1373, 1379 (5th Cir.1984).

Appellants contend that the findings of fact made by the Board as they relate to Mr. Tewelde’s corresponding responsibility, are little more than general observations about the number of dosage units Lafitte Drugs ordered in the first quarter of 2010 and the percentage of prescriptions written by Texas physicians. Specifically, appellants point to the following finding made by the Board:

Based upon the number of Schedule II prescriptions dispensed by Tewelde to patients of Texas prescribers; the distances between the office of the of the Texas doctors, the homes of the patients and the pharmacy; the location of the pharmacy, the quantity and strength of the drugs on each prescription; and many other factors; Tewelde failed to discharge his corresponding responsibility by filling these prescriptions from the out-of-state practitioners.

Appellants aver that for the 3,048 prescriptions at issue that Mr. Tewelde filled, the pharmacy retained a Louisiana picture identification card for the person filling the prescription, and in many instances, had someone from Lafitte Drugs call the prescribing physician/clinic to verify that the prescription was for a legitimate medical need. Appellants assert that none of the factors considered by the Board was probative of whether Mr. Tewelde violated his corresponding responsibility.

The requisite corresponding responsibility of the pharmacist is to ascertain that a prescription is issued for a legitimate medical purpose. While Lafitte Drugs required that an individual have a Louisiana identification card prior to filling a prescription for out-of-state residents, most of the Louisiana identification cards were issued at or near the time the prescriptions were filled. Although appellants aver that having the pharmacy staff call the prescriber was sufficient under the circumstances, that action is only one factor that must be considered in determining whether the pharmacist fulfilled his corresponding responsibility. See Henry, 727 F.2d at 1379 (“Prescriptions brought in at | ¶ ¡¡frequent intervals by the same individual who mentions plans to share the prescriptions with others can provide cause for a pharmacist to believe the prescriptions are invalid despite their verification by the prescribing physician.”) There is no requirement that overt knowledge on the pharmacist’s part be established. Rather, what is required is proof “that the pharmacist had reason to believe that the prescription was not issued in the usual course of professional treatment.” Id.

At the hearing, Donna Dombourian, a DEA investigator, testified that the following instances should have caused Mr. Tew-elde to question the validity of the Texas prescriptions and decline to dispense any of those prescriptions:

If you’re getting large volumes of schedule two prescriptions, if you’re getting prescriptions from doctors you’re not familiar with, if you’re getting prescriptions from patients who live in other states and are coming to your store and you’re located in the middle of nowhere. If you’re filling prescriptions— the majority of prescriptions for Texas physicians and you’re not familiar with Texas law. Those are things that are suspicious. What he should have done — there’s no list that says what he should have done. What he should’ve done was not filled the prescription. But he filled them. He could’ve, he could’ve found out what Texas law is before he filled any of them to make sure they were all on legitimate pads. He could’ve not filled prescriptions that were stamped. He could’ve picked up the phone and called the DEA and said, hey, I’m getting a lot of prescriptions from Texas. Are these doctors legitimate? Should I not have filled these? He contacted the supplier and told the supplier what he was filling. And the supplier said, we’re not going to fill to you. As of April 8th, when the supplier cut him off, that should have been a clue to him to say, well, if the supplier’s not going to supply me because they’re suspicious of it, I’m the registered pharmacist, I better not fill them either. But he didn’t do all those things. I can’t tell you step by step what he should have done. He’s a pharmacist, he’s the one that is responsible for that. He could’ve contacted the DEA offices in Texas and asked them about the prescriptions. He didn’t do that.

A member of the Board also opined that one prescription might slip through undetected, but the pattern or overall picture should trigger recognition.

Mr. Tewelde, who had been warned about corresponding responsibility and filling Texas prescriptions in 2008, was also aware that the relief pharmacist declined to fill the prescriptions from Texas prescribes and recognized that the patients came to Lafitte Drugs because “they couldn’t fill [the prescriptions] somewhere else.” Moreover, Mr. Tewelde was aware that these out-of-state | ^residents came in to fill schedule II prescriptions together and usually paid for the prescriptions with cash or credit cards. Considering the deficiencies in a number of the Texas prescriptions themselves, some of which have not been challenged on appeal, coupled with the influx of Texas prescriptions written by many of the same providers, we cannot conclude that the district court was manifestly erroneous in finding that Mr. Tew-elde failed to fulfill the corresponding duties owed by a pharmacist.

Appellants also contend that the Board abused its discretion when it denied their motion for rehearing, which they sought based on telephone records produced after the hearing. Said records allegedly reflected that in the vast majority of the prescriptions at issue, Lafitte Drugs telephoned the prescribing health care provider to ensure that the challenged prescriptions were written for a legitimate medical purpose.

Louisiana Administrative Code Title 46:LIII.351(B) provides the following grounds for granting a rehearing:

Grounds. The board or an interlocutory hearing panel may reconsider the motion for rehearing at the next regularly scheduled board meeting. The grounds for such action shall be either that:
1. the board’s decision was clearly contrary to the law or evidence; or
2. newly discovered evidence not available at the time of the hearing which may be sufficient to reverse the board’s decision; or
3. issues not previously considered ought to be examined; or
4. it is in the public interest to reconsider the issues and the evidence. [Emphasis added.]

See also LSA-R.S. 49:959 A(2)(A matter shall be subject to rehearing when “[t]he party has discovered since the hearing evidence important to the issues which he could not have with due diligence obtained before or during the hearing.”)

The record reflects that appellants received notice of the August 12, 2010 hearing on July 8, 2010. Appellants waited until August 3, 2010 to subpoena the records of the telephone company, AT & T. Thus, the district court may have 114found that the board believed appellants were not diligent in seeking issuance of the subpoena and did not show that the telephone records were “newly discovered evidence not available at the time of the hearing.”

Nevertheless, at the time of the August 12, 2010 hearing, appellants were aware that there was no return on the subpoena for the telephone records, but desired to proceed without them. Specifically, appellants’ counsel, in opening statements, noted:

And when it comes to that — well, first thing, I said the AT & T records. I’d like to reflect we did serve a subpoena upon AT & T through the Board. Apparently there has not been a production in response [thereto], I think that is material evidence to support his contentions as to who was called and when. And because of the lack of that production in response to that, I do feel that we do have his testimony here. We did not want to push this, you know, off because we, you know, wanted to proceed and, you know, with the matter and not try to use procedural mechanisms to any benefit.

Considering the foregoing, we cannot conclude that the district court erred in this regard.

Appellants also contend that the record contains insufficient evidence to conclude that Mr. Tewelde dispensed all 3,048 prescriptions at issue in violation of his corresponding responsibility. Appellants assert that the fines imposed on the pharmacy and on Mr. Tewelde are not supported or sustainable by a preponderance of the evidence with regard to each specific prescription.

Additionally, appellants contend that the fines and sanctions imposed were excessive and made without due regard to the guidelines for imposing sanctions. Specifically, LAC 46:LIII.B21 provides:

A. The sanctions imposed by the board pursuant to R.S. 37:1241 of the Pharmacy Practice Act shall be based on the following guidelines.
1. Nature. The nature or seriousness of the violation.
2. Degree. The degree of culpability, knowledge and/or intent, or the responsibility to have knowledge.
3. Scope. The scope of circumstances involved.
4. Demeanor. Honesty and truthfulness of respondent.
5. History. History of prior offenses. [IS6. Sanctions. Prior sanctions.
7. Cooperation. Willingness of respondent to comply with applicable laws and regulations and avoid future violations.
8. Sufficiency. Sanctions are sufficient to remedy the problem.

Appellants contend that factors 4 through 8 clearly militate in favor of appellants, and given the absence of any prior offense or sanction, lesser fines and sanctions would have been appropriate herein.

The Board is authorized to fine up to $5,000.00 per violation, with each act in violation to be considered a separate violation. See LSA-R.S. 37:1241. The Board assessed Mr. Tewelde $15.00 per prescription and Lafitte Drugs $35.00 per prescription for the 3,048 schedule II prescriptions issued by Texas prescribers and dispensed by Mr. Tewelde between January 1 and April 14, 2010.

Lafitte Drugs had been previously warned about corresponding responsibility when filling Texas prescriptions, yet had done nothing to correct the problem. Lafitte Drugs became the third highest dispenser of hydrocodone in the state, behind pharmacies located in large metropolitan areas, while located in a town with a population of 1500 and dispensing prescriptions prescribed 375 miles away. The fines were limited to the schedule II prescriptions issued by Texas prescribers and filled by Mr. Tewelde. Further, in response to questioning by the Board’s counsel with regard to whether he still believes it was proper to fill the Texas prescriptions at issue with the knowledge he has now, Mr. Tewelde maintained that it was.

Considering the foregoing and the seriousness of the violations, we conclude that the district court’s findings are supported and sustainable by a preponderance of the evidence. As such, we find that the district court did not err in affirming the fines and sanctions levied by the Board.

| ^Appellants’ assignments of error are without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court. Costs of this appeal are assessed to appellants, Taddese Tewelde and Tewelde’s Lafitte Drugs.

AFFIRMED.

      . Schedule II drugs are defined in LSA-R.S. 40:963(B) as follows:
      (1) The drug or other substance has a high potential for abuse.
      (2) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions, and
      (3)Abuse of the drag or other substances may lead to severe psychological or physical dependence.

      . Schedule III drugs are defined in LSA-R.S. 40:963(C) as follows:
      (1) The drug or other substance has a potential for abuse less than the drags or other substances listed in Schedules I and II.

        (2) The drug or other substance has a currently accepted medical use in treatment in the United States, and
      (3) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.

      . These metropolitan areas consist of Baton Rouge and Metairie.

      . In addition to the Louisiana identification cards, Lafitte Drugs also maintained copies of each individual's out-of-state driver’s license.

      . Mr. Tewelde avers that although some of these prescriptions were filled after the doctors surrendered their DEA licenses, the prescriptions were written prior to their licenses being surrendered. However, the record also contains prescriptions that were issued and filled after the doctors surrendered their DEA licenses.

      . The Board further found appellants in violation of the following statutes and regulations: LSA-R.S. 37:1225; LSA-R.S. 40:967(A)(1); 21 C.F.R.§ 1306.04(a); LAC 46:LIII.1103(J); LAC 46:LIII. 1105(B); LAC 46:LIII.2513(B); LAC 46:LIII.2527(A); and LAC 46:LIII.2513(B).

      . Although the Board limited the fines to this three and half month time period, the record also reveals possible additional violations pri- or to referenced period.

      . Appellants have not pointed to any specific schedule II prescription written by a Texas prescriber that they allege was prescribed for a legitimate medical purpose.


author: SEXTON, J. (Pro Tempore). BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Jermaine WILLIAMS, Appellant.
    No. 46,814-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.
    Rehearing Denied Aug. 2, 2012.
    Louisiana Appellate Project by Mark O. Foster, Edward John Marquet, Lafayette, LA, for Appellant.
    Jermaine Williams, Pro Se.
    James D. “Buddy” Caldwell, Attorney General, James David Caldwell, Jr., Clifford Royce Strider, III, Bernadette Tome-ny, Robert Abendroth, Assistant Attorneys General, for Appellee.

      Before BROWN, STEWART & SEXTON (Pro Tempore), JJ.
   SEXTON, J. (Pro Tempore).

11 Defendant, Jermaine Williams, was convicted of second degree murder. He was sentenced to life in prison without benefit of probation, parole or suspension of sentence. Defendant now appeals. Since the trial court failed to conduct a competency hearing prior to proceeding to trial, the conviction and sentence of Defendant are vacated and the matter is remanded for further proceedings consistent with this opinion.

FACTS

In 2002, Defendant, Jermaine a/k/a “Spike” Williams, was living in Lake Providence, Louisiana, with his girlfriend Tynesia Raymond. The relationship was allegedly abusive and Ms. Raymond left Defendant and went to stay with a friend. On October 21, 2002, Ms. Raymond went to a Lake Providence grocery store to go shopping. Defendant allegedly was in the same grocery store and started an altercation with Ms. Raymond, which ended in her shooting death. On December 16, 2002, Defendant was charged with second degree murder, a violation of La. R.S. 14:30.1, for the murder of Ms. Raymond in East Carroll Parish. Defendant pled not guilty.

On September 30, 2004, Defendant moved for a sanity commission. The court appointed the commission to inquire into Defendant’s competency to stand trial and the commission found that he was not competent to stand trial at that time. On October 11, 2004, the trial court ruled that he was not competent to stand trial. Interim psychological Revaluations resulted in a recommendation that Defendant should stay on his medications, but may be competent to stand trial.

On February 21, 2007, the prosecution moved for a resumption of proceedings and the sanity commission reported that Defendant was competent to stand trial. However, at a sanity hearing on February 26, 2007, the defense moved for a continuance and requested a determination of whether Defendant was legally sane at the time of the offense. The trial judge ordered that an inquiry be held to determine if Defendant was competent at the time of the offense. An evaluation was performed and the psychologist who performed the evaluation filed a report stating that Defendant had a full scale IQ of 74, indicating borderline intellectual functioning. The report indicated that Defendant was on medication for psychosis, not otherwise specified, and that the medication was necessary and appropriate to maintain competency. The psychologist determined that, “The defendant currently has a rational as well as a factual understanding of the proceedings against him and has a sufficient present ability to consult with his/her lawyer with a reasonable degree of rational understanding.” The report regarding his competency at the time of the offense stated that Defendant suffers from schizophrenia, but understood the difference between right and wrong at the time of the offense.

On May 10, 2007, the trial court conducted a sanity hearing finding Defendant competent to stand trial. Jury trial was set for April 28, 2008. |sOn July 1, 2008, Defendant changed his plea of not guilty to not guilty by reason of insanity and requested another sanity commission, which was reappointed by the trial court. The commission once again recommended that Defendant was not competent to stand trial. On August 7, 2008, the court issued an order finding that Defendant lacked the mental capacity to proceed because he had a mental disease or defect which rendered him incapable of understanding the proceedings against him and in assisting in his defense. At a review hearing on December 4, 2008, Defendant was again found incompetent to stand trial.

In November 2009, the trial court received a report from the sanity commission that Defendant was again competent to stand trial and could assist counsel. The report stated that Defendant must stay on his medication for adequate intellectual functioning. A sanity hearing was started on December 3, 2009; however, defense counsel objected to a psychiatric report and requested the opportunity to cross-examine the medical practitioner. The sanity hearing was reset for January 7, 2010, but the hearing did not take place. No further action took place with regard to the question of Defendant’s competency. The matter proceeded to trial and Defendant was convicted of second degree murder on March 4, 2011. This appeal ensued.

DISCUSSION

Defendant assigns three alleged errors on appeal. The first issue is whether the trial of Defendant, having been held to be incompetent, was error patent. We agree that, since Defendant had been previously found by [4the trial court to be incompetent to stand trial in its most recent ruling of December 4, 2008, and no further sanity' hearing was held on the issue, the commencement of trial was in violation of the Code of Criminal Procedure and of Defendant’s right to due process. We pretermit the other two assignments of error regarding the State’s use of Defendant’s statement and other crimes evidence at trial.

La. C. Cr. P. art. 642 provides: The defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed. (Emphasis added.)

La. C. Cr. P. art. 647 provides:

The issue of the defendant’s mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defendant’s mental capacity to proceed may be introduced at the hearing by the defense and by the district attorney. (Emphasis added.)

It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense may not be subject to trial. State v. Nomey, 613 So.2d 157 (La.1993), citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 108 (1975). The failure to observe procedures adequate to protect a defendant’s |.r,right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Id. Our statutory scheme for detecting mental incapacity “jealously guards a defendant’s right to a fair trial.” Id.

In State v. Nomey, supra, the defendant was charged with first degree murder and filed a motion for a sanity commission. Finding reason to doubt the defendant’s capacity to proceed, the trial court appointed a sanity commission. The defendant was evaluated by two doctors, both of whom dictated reports that day finding the defendant competent. Nomey, supra. Also on that day, the defendant confessed to the killing to authorities. Subsequently, the defendant expressed his desire to plead guilty in exchange for the State’s agreement not to seek the death penalty. The trial judge accepted the guilty plea and sentenced the defendant to life imprisonment. No mention was made of the pending sanity commission at the hearing. Two weeks later, the doctors’ reports finding the defendant competent were filed in the court.

The supreme court found violations of articles 642 and 647 because the trial court, after finding a reasonable doubt as to the competence of the defendant in appointing the commission, never made a determination of competency prior to accepting the guilty plea. Proceeding with the prosecution under those circumstance is a nullity which cannot be cured |(¡retroactively by a nunc pro tunc hearing. Nomey, supra; State v. Harris, 406 So.2d 128 (La.1981); State v. Aylor, 416 So.2d 927 (La.1982).

Here, the State asserts that the matter should be remanded to the trial court for a nunc pro tunc hearing to determine Defendant’s competency retroactively under the reasoning in State v. Snyder. We find the State’s reliance on State v. Snyder to be misplaced.

The supreme court in Snyder held that a defendant’s competency may be determined retroactively when “meaningful inquiry into the competency” can be made. In that case, the defendant filed a motion to appoint a sanity commission, the trial court granted the motion, had the defendant examined, held a sanity hearing and found the defendant competent to stand trial. State v. Snyder, supra. The defendant then claimed that the trial court erred in failing to continue the trial in order to allow defense counsel adequate time to prepare and to develop a defense of insanity. The defendant also argued that the trial court erred in denying the continuance in order to allow his medication to work better, which would have allowed him to communicate more effectively with and assist his attorney. Id.

Unlike in Snyder, Defendant in this case was not found to be competent to stand trial prior to the trial. Rather, Defendant was found incompetent to stand trial on three occasions prior to the case proceeding to trial; and, as previously discussed, the last sanity ruling by the trial court before the trial commenced resulted in a finding of incompetency. For this 17reason, and under the reasoning of Nome?/, supra, we must vacate the conviction and sentence and remand for further proceedings.

DECREE

For the foregoing reasons, the conviction and sentence of Jermaine Williams are vacated and the matter is remanded to the trial court for further proceedings consistent with this opinion.

CONVICTION AND SENTENCE VACATED AND MATTER REMANDED FOR FURTHER PROCEEDINGS.

BROWN, Chief Judge, dissents and assigns written reasons.

BROWN, Chief Judge,

dissents.

hi disagree that State v. Snyder, supra, is distinguishable from our case. In this case, a sanity hearing was held in which the psychiatric reports found that defendant was competent to stand trial. Defense counsel asked for a continuance to examine the medical practitioner. The matter was reset for January 7, 2010, but the hearing did not take place. In Snyder, there was also a hearing in which the defendant was found competent. The Louisiana Supreme Court considered defendant’s motion to continue as a request for further inquiry into defendant’s competency and remanded the case for a nunc pro tunc competency hearing. As to No-mey, supra, the Snyder court at pages 854-55 stated:

Thus, Nomey does not preclude the possibility of a nunc pro tunc competency hearing in a case such as the one sub judice where the trial judge ignored a bona fide doubt as to defendant’s competence to stand trial.
A “meaningful” determination is possible “where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant’s condition at the time of the original state proceedings” ... “The passage of time is not an insurmountable obstacle if sufficient contemporaneous information is available.” Reynolds v. Norris, 86 F.3d 796, 802-08 (8th Cir.1996).
If the trial court concludes defendant was competent, no new trial is required to be conducted. If the trial court finds a meaningful inquiry cannot be had, or if it determines after the hearing that defendant was not competent at the time of his trial, defendant shall be entitled to a new trial.

In the case sub judice, there is sufficient evidence in the record, together with such additional cross-examination and other evidence that may be relevant, to permit an accurate assessment of defendant’s condition |2at the time of the original hearing and trial. Thus, I respectfully dissent and would remand for a nunc pro tunc hearing.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, MOORE & SEXTON (Pro Tempore), JJ.

Rehearing denied.

BROWN, C.J., and MOORE, J„ would grant rehearing.

      . The prosecution of this case is extensive, including post-arrest statements and various procedural happenings. For brevity, we include in this discussion only the events relevant to the critical issue in the case, i.e., the failure to conduct a sanity hearing before proceeding to trial.

      . We glean from the record that the back-and-forth findings of competency are related to an attempt to stabilize Defendant’s medication regimen. A consistent theme throughout the reports is that Defendant suffers from psychosis and must remain on his medications in order to be competent.

      . La. C. Cr. P. art. 643 provides in pertinent part: “the court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed.” Therefore, since it ordered the examination, the trial court must have found reasonable ground to doubt defendant’s mental capacity to proceed.

      . State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, opinion after remand, 98-1078 (La.4/14/04), 874 So.2d 739, cert. granted, judgment vacated on other grounds, Snyder v. Louisiana, 545 U.S. 1137, 125 S.Ct. 2956, 162 L.Ed.2d 884 (2005).


author: SEXTON, Judge Pro Tem.

text:
    Porsche Sade HENDERSON, Plaintiff-Appellant v. Amsar M. GREGORY, et al., Defendants-Appellees.
    No. 47,086-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Law Offices of Richard Fewell, Jr., by Richard Fewell, Jr., Law Offices of Jim Norris, by William Norris, III, for Appellant.
    Davenport, Files & Kelly, L.L.P., Monroe, LA, by M. Shane Craighead, for Ap-pellees.
    Before BROWN, CARAWAY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

11 Plaintiff Porsche Henderson appeals a ruling by the trial court that she failed to carry her burden of proving that her tinnitus and permanent partial hearing loss were caused by an automobile accident for which Defendant Amsar Gregory was admittedly 100 percent at fault. The trial court awarded all special damages and general damages of $8,500 for other injuries, but not for Porsche’s tinnitus and hearing loss. Finding manifest error in the trial court’s ruling on causation, we increase the award of general damages to include damages for the tinnitus and permanent partial hearing loss in the amount of $90,000. As amended, the judgment is affirmed.

FACTS

Porsche Henderson and Amsar Gregory were involved in an automobile accident resulting in injuries to Porsche. The impact was severe enough to cause Porsche’s air bags to deploy. Porsche was a 17-year-old high school student at the time of the accident. Ms. Gregory failed to yield the right-of-way and stipulated that she was 100 percent at fault in the accident, but reserved her right to challenge causation to Porsche’s claimed injuries. There is no dispute that Porsche suffers from tinnitus and permanent partial hearing loss of 30-35 percent in her left ear. The issue is whether the accident at issue caused these conditions.

Porsche filed suit for damages against Ms. Gregory, Thomas Robinson, the owner of the vehicle Ms. Gregory was driving, and State Farm Mutual Insurance Company, the insurer of Mr. Robinson’s vehicle li>(“Defendants”). Following trial, the judge awarded special and general damages for certain injuries, but concluded that Porsche failed to prove by a preponderance of the evidence that the accident caused the tinnitus and hearing loss.

The judgment utilized is a form judgment, which provides a small section for reasons for judgment. The abbreviated reasons state:

On 6/14/06, Plaintiff was involved in a collision with Defendant to an extent that her air bag deployed. By stipulation, Defendant acknowledged being completely at fault. The main issue at hand is whether the “tinnitus” and left ear hearing loss of Plaintiff were caused by the accident of 6/14/06. Through testimony and other evidentiary offerings, this Court was convinced that Plaintiff suffered burns to her face, a sore wrist, ear ringing, an ankle injury, back pain, and elbow pain; all of which is compen-sable in the amount of $8,500. Medical expenses in the amount of $7,604.13 are awarded to Plaintiff as well. On the issue of whether the “tinnitus” and left ear hearing loss of Plaintiff were caused by the accident of 6/14/06, this Court finds, and concludes, that Plaintiff did not meet her burden of proof on that issue.

(Emphasis added.)

This appeal ensued.

DISCUSSION

Porsche assigns five errors on appeal, which raise the primary issues of whether the trial judge erred in finding that she failed to prove causation regarding her tinnitus and hearing loss and, more specifically, whether the trial judge erred in refusing to consider and apply the presumption of causation set forth in Housley v. Cerise, 579 So.2d 973 (La.1991).

Standard of Review and Applicable Law

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury and the accident which caused the | ¡¡injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757. Proof must be by a preponderance of the evidence. Maranto, supra. The test for determining the causal relationship is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id. Causation is a question of fact and is subject to the manifest error standard of review. Green v. K-Mart Corp., 03-2495 (La.5/25/04), 874 So.2d 838.

To obtain the benefit of the presumption of causation described in Housley v. Cerise, supra, the plaintiff must show (1) that he or she was in good health prior to the accident at issue, (2) that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves afterward and (3) through evidence, either medical, circumstantial or common knowledge, a reasonable possibility of causation between the accident and the claimed injury. Housley, supra. If the plaintiff can show these three elements, then he or she is entitled to a presumption of causation and the burden of proof shifts to the defendant to prove some other particular incident could have caused the injury of which the plaintiff complains. If the plaintiff cannot show these three elements, he or she is not entitled to a presumption of causation and the burden of proof does not shift to the defendant. Housley, supra. To rebut this presumption, the defendant must show that some other particular incident could have caused the injury in question. Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557; Bruce v. State Farm Ins. Co., 37,704 (La.App.2d Cir.10/29/03), 859 So.2d 296. The application of the Housley presumption of |4causation to the facts is also a question of fact and subject to manifest error review. Detraz, supra.

The Evidence

As previously stated, there is no dispute that Porsche suffers from tinnitus and 30-35 percent permanent partial hearing loss in her left ear; the only questions before us are applicability of the Housley presumption and causation.

Defendants elicited deposition testimony from Porsche’s treating physicians regarding the spectrum of possible causes of hearing loss, which include blunt trauma, chronic sinus and/or ear infections and congenital or idiopathic conditions. Specifically, Defendants offered the following three alternative causes of Porsche’s hearing loss: 1) alleged chronic allergies/sinus infections and two complaints that her ear was stopped up and she could not hear clearly when she was 13 years old; 2) a prior car accident on October 31, 2005, seven months prior to the June 14 accident, after which she was treated for headaches and neck and back pain; and 3) a punch to the lower lip area by a boy at her school on May 11, 2006, one month prior to this accident.

Counsel for Porsche characterizes Defendants’ reliance on the three alternative possible causes of Porsche’s hearing loss as pure speculation and asserts that no evidence was presented suggesting a causal link between any of the three alternative occurrences and the hearing loss. First, Dr. Dhaya Kutnikar, Porsche’s pediatrician, testified regarding her treatment of Porsche for childhood ailments, including sinus and allergy problems. | aDr. Kutni-kar was not involved in the treatment of Porsche’s current hearing issues. A reading of Dr. Kutnikar’s testimony reveals that Porsche was not atypical in her complaints to her pediatrician. She experienced upper respiratory problems from time to time and had a continuing prescription for allergy medication. On two occasions, when Porsche was 13 and 15 years old, she complained that she could not hear well out of her left ear. Dr. Kutnikar testified that Porsche’s ear was simply “stopped up” and the condition resolved with allergy medication. Dr. Kutni-kar attributed any ear pain to TMJ (a condition involving the muscles surrounding the jaw) and the hearing problem to allergies. Dr. Kutnikar testified that Porsche did not suffer from chronic ear infections; rather, he had only twice prescribed Porsche antibiotics for ear infection. Had he suspected a serious or permanent hearing issue with Porsche, Dr. Kutnikar testified that he would have referred her to an ear, nose and throat specialist.

Second, Defendants introduced Porsche’s medical records from her treatment after the October 31 automobile accident. Porsche complained of back and neck pain and headaches following the accident. Medical records indicate that, while she was treated for headaches, all of her injuries, including the headaches, resolved in a timely fashion following that accident. Porsche made no complaint of head trauma or ringing in the ear or hearing loss following the October 31 accident.

Third, Defendants offer the punching incident that happened a month before the accident as an alternative cause of the hearing loss. The testimony reveals that the blow was to the left side of her face and the injury | nwas minor, causing a slight abrasion, with no bleeding, to Porsche’s lower lip. Porsche’s parents did not seek treatment from Dr. Kutnikar on that date; however, Dr. Kutnikar testified that someone called her office and requested an X-ray of Porsche. She ordered x-rays of the left jaw area which showed no injury. Mr. Henderson testified that he requested the X-ray. When asked about the extent of the injury from the punch, Porsche testified:

... It was just my lip. I had two small cuts under my lip and my lip was swollen. That was it. And the only reason I went to get a CT scan was because my daddy wanted me to go to make sure nothing happened to me on the Neville school ground.

There is no evidence that Porsche made any complaints of ear ringing or hearing loss following any of the above-offered alternative causes of her hearing loss. She maintains that the ringing in her ear and hearing loss began the day after the June 14 accident, that she had never experienced it prior to the accident and it has not subsided since the accident.

In addition, Defendants argue that Porsche failed to list the two above “trauma” incidents in answer to interrogatories or in her deposition in response to questions about any previous accidents or trauma to the head and/or jaw area. Further, Defendants note that she did not include them in her patient histories with the treating doctors. In this regard, Porsche testified that she was confused by the questions and was thinking in terms of ear accidents and the like. She stated:

[W]hen you were referring me to accidents, like I really — like I wouldn’t refer a getting hit in my mouth an accident. Like I wouldn’t think you was (sic) talking about that type of accident. I was thinking more of car wrecks.
|7At that time, like I said today I understand the question because I’m much older. At the time I probably did (sic) even know what trauma meant, so I couldn’t tell you what I was thinking at the time. I was young, but I know I was confused by the question.

Porsche was later asked about her testimony that the instant accident was the only “significant trauma” that she had experienced to her head, face or jaw. She explained why she did not include the punching incident in her answer:

To me that was the only significant trauma, because I remember my hearing after the accident, I didn’t have my hearing anymore. Now if I would have noticed after he hit me [the punching incident], then I would’ve remembered that. But I couldn’t remember because it was like really nothing happened.

She maintains that she simply did not realize the significance of the two prior incidents and that their exclusion was not intentional or deceitful. Defendants, on the other hand, urge that Porsche’s testimony be discounted because of her failure to list the incidents and her failure to include them in her patient histories.

The following is a summary of additional evidence, including medical records and testimony. The doctors testified via depositions, which were introduced at trial. Porsche and her parents provided live testimony at trial.

At the time of trial, Porsche was 22 years old and a student at Grambling University. Porsche testified that she was traveling 45 m.p.h. when the accident occurred and the air bag deployed, hitting her in the hands, arms, neck and face. She was treated at Morehouse General Hospital Emergency Room by Dr. Clarence Whitehead. The ER records indicate that her primary complaints were injury to her ankle and arms burning from the |sair bag. Dr. Whitehead testified in deposition that he had no independent recollection of treating Porsche, but noted from the records that she did not complain of trauma to her head or ringing of the ears in the ER. He opined that patients generally complain of what is hurting the most at the time, which, in this case, was Porsche’s ankle. He further testified that it is typical with air bag deployment to see redness of the face and abrasions and burns and that air bag deployment can cause injury.

Again, Porsche testified that she first experienced the ringing in her ears the day after the accident. This prompted her mother to schedule an appointment with Dr. Ronald Woods, family practitioner, who saw Porsche on June 26, 2006,12 days after the accident. In addition to maintaining her complaints about the ankle injury, Porsche presented to Dr. Woods with complaints of headaches, ringing in her left ear and intermittent ear aching. The first complaint Porsche wrote on her patient intake paperwork was “Very bad headaches. Ring (sic) in my left ear and ear aches sometimes[ — ]” Dr. Woods diagnosed Porsche with tinnitus (ringing of the ears), which was not within his expertise to treat. Notably, the trial judge’s reasons for judgment indicate that he believed that Porsche suffered, inter alia, burns to her face and ear ringing. Dr. Woods testified that he hoped the ear ringing would improve; however, by July 6, 2006, when the majority of Porsche’s other accident-related injuries had resolved, she still complained of the ear ringing. Dr. Woods released her from his care on July 20, 2006.

Porsche saw Dr. Joel Norris, an ear, nose and throat specialist, on July 31, 2006, six weeks after the accident. Dr. Norris consulted with an | ^audiologist and diagnosed Porsche with a sudden partial hearing loss of 30-35 percent in her left ear. He testified:

Well, if you have a trauma which we’re assuming we did, then you can have a hearing loss as a result of that. It can be concussive in nature as in a cochlear concussion. It can be stress-related following that. It can be a number of things, but if one is in an automobile accident, and states they have hearing loss afterwards, we assume that they did.

Dr. Norris was unaware of any past history of trauma to Porsche’s head and jaw areas, discussed supra; therefore, he declined to opine specifically as to causation.

Dr. Norris referred Porsche to Dr. James House, a specialist in Otology, which is the practice of medicine of the ear. Porsche’s parents took her to see Dr. House in Jackson, Mississippi, on November 29, 2006. Dr. House confirmed the permanent partial hearing loss of the left ear and testified in deposition that air bag deployment can cause hearing loss. Specifically, Dr. House testified that air bag deployment is extremely loud and can cause damage to the inner ear and the force of the deployment can rupture the eardrum. Dr. House presumed that the accident and air bag deployment were the causes of the hearing loss because it was immediately present after the accident, but not present before it. Like Dr. Norris, Dr. House was unaware of Porsche’s history as described above and acknowledged that any of those occurrences could cause hearing loss, but audiology testing would have been essential after the incident(s). Since there had been no prior complaints of hearing loss, there had been no prior audiology testing. Dr. House further opined that Porsche would have known that she had ear problems following each of those incidents; and, as | instated, •Porsche never complained of any ear ringing and/or hearing loss prior to this accident. Specifically, Dr. House testified that a victim of a blunt blow to the head would know about the hearing loss within a week or two after the incident. Ultimately, Dr. House agreed that it would be reasonable to conclude “that the probable cause of the hearing loss is the motor vehicle accident wherein [the] air bag deployed” if Porsche had no history of hearing Joss before the air bag deployed, but experienced a loss of hearing after the air bag deployed.

Porsche’s mother, Yolanda Henderson, is a registered nurse. She testified that she enjoys a close relationship with Porsche and that she has been actively involved in Porsche’s healthcare. She stated that either she or her husband, Kenneth Henderson, always accompanied Porsche to visits to the doctor. According to Ms. Henderson, if Porsche had experienced hearing issues prior to this accident, she would have known about it and would have taken her to the doctor. Ms. Henderson also corroborated Porsche’s testimony that the punching incident involved only a minor injury to her lip and did not involve the jaw or ear. Next, Mr. Henderson, testified and confirmed that he requested the X-ray be done after the punching incident. Porsche’s parents appear to be conscientious, caring parents who have taken their daughter to the doctor when needed and have provided consistent medical care for any issues she has experienced as they have arisen.

|, i The Housley Presumption and Causation

Based on the above-described evidence, we conclude that the trial court manifestly erred in refusing to afford Porsche the presumption of causation set forth in Housley, supra. There is no evidence in this record to suggest that Porsche was not in good health immediately prior to this accident. Her injuries from the car accident some seven months previous were completely resolved before this accident. Porsche had no lingering effects from the punching incident and the only evidence of any ongoing health issues is that she suffers from allergies. Next, it is clear from the testimony and evidence that Porsche first complained of ringing in her left ear and hearing loss the day after this accident. There is no evidence to the contrary. Further, there is no dispute that she does, in fact, suffer from a 3(L35 percent permanent partial loss of hearing in her left ear and that the condition persists to the present time. Finally, the evidence supports the finding of a reasonable possibility of causation existing between the June 14 accident and Porsche’s tinnitus and hearing loss. Thus, Porsche satisfied the three elements required for application of the Housley presumption. The burden then shifted to Defendants to offer a particular incident that could have caused the injury. Detraz, supra.

As previously stated, Defendants offer two particular alternative incidents which they claim could have caused the injury. First, all of the symptoms and complaints voiced by Porsche following the October 31 car accident had well resolved by the time of the June 14 accident. Significantly, she did not complain of tinnitus or hearing loss following the |12October 31 accident and her headaches had dissipated before the instant trauma. There is no evidence to suggest that the October 31 accident caused the tinnitus and hearing loss. Likewise, the record does not support a finding that the punching incident could have caused the injury. The evidence clearly shows that the injury from the punch was minor, causing a slight abrasion to the left lower lip. Mr. and Mrs. Henderson did not even seek medical attention at the time of the injury. Mr. Henderson testified that he requested the X-ray and there was no injury. Moreover, Dr. House testified that a person suffering a blow to the head would experience any ear ringing or hearing loss within a week or two of the incident. Again, the evidence simply does not support a finding that the minor punching injury could have caused the tinnitus and permanent hearing loss that Porsche began experiencing a month later, and the day after being involved in a car accident. We find the supreme court’s rationale for rejecting such a speculative defense in Maranto, supra, to be instructive:

Defendants attempted to relate plaintiffs injuries to her driving her vehicle “long distances” to visit patients in Haughton, La. Alternatively, they would lead this court to believe that plaintiffs injuries were incurred while performing other job related duties. While medical testimony was such that everyday activities such as sneezing, driving, or coughing can herniate a disc, as the finder of fact, a court cannot speculate as to the vague possibilities for causation, when medical witnesses have established an event as to the probable cause of injury.

In summary, there is no competent evidence in this record that any of the three alternative causes offered by Defendants were, in fact, the cause of Porsche’s tinnitus and hearing loss. The trial court’s finding to the contrary was manifestly erroneous.

11SAssuming, arguendo, however, that the Housley presumption does not apply, we maintain that the trial court manifestly erred in finding that Porsche failed to prove causation by a preponderance of the evidence. For the reasons set forth above, the only reasonable conclusion to be drawn from this record is that Porsche proved, through her and her parents’ and medical testimony, that the accident of June 14, 2006, more probably than not caused her tinnitus and permanent partial hearing loss. It was manifest error for the trial court to conclude otherwise.

Finally, while we are cognizant of the importance of full disclosure of medical and/or accident history in discovery, we find no intentional omission on the part of Porsche regarding her previous car accident or the punching incident.

Damages

Interestingly, the trial court awarded all special damages, including the medical expenses of Drs. Norris, Woods and House. The trial court awarded general damages of $8,500 for “burns to her face, a sore wrist, ear ringing, an ankle injury, back pain, and elbow pain.” Thus, our task is to evaluate and compensate Porsche for permanent damage to her left ear of 30-35 percent hearing loss and tinnitus and add this to the other general damage award.

In making an initial award of damages, an appellate court is not limited to either the highest or lowest amount of the reasonable range of 114 awards which would have been affirmed on appeal. Our responsibility is to award an amount which is fair and just for the damages supported by the record. Morris v. Owens-Illinois, Inc., 582 So.2d 1349 (La.App. 2d Cir.1991), writ denied, 588 So.2d 1119 (La.1991).

Dr. House testified that he does not consider Porsche’s left ear to be a very useful ear for understanding speech. A left-ear hearing aid could increase the volume of the sound heard by the ear, but not the clarity of a voice. Dr. House explained that there are two other types of hearing aids available to Porsche; however, he did not find either option promising for any appreciable benefit to her.

Porsche testified that she occasionally experiences headaches and that her left ear rings constantly. Her hearing loss has caused her to experience dizziness and balance issues and sometimes she has pain and discomfort in her left ear. Porsche is unable to discern what people are saying when they are on her left side and battles continuously to listen and understand conversations. At only 17 years old, now 22, she has become shy and embarrassed and has withdrawn from her previously active extracurricular and social lives. Porsche is no longer a lifeguard because she is fearful of getting water in her ears, she withdrew from the church choir because of her inability to hear pitch and she no longer plays softball due to her fear of being hit in the head or ear by the ball. Porsche further testified that she is extremely careful with her ears and is fearful of something happening to her right ear that may cause her to lose all of her hearing. The doctors advised Porsche to avoid extremely loud noises in order to protect her level of |, ¿current hearing; now, Porsche is afraid to listen to music or the television too loudly.

The hearing loss has also affected Porsche in her studies. She must sit in the very front of the classrooms for lectures and meetings and still has some difficulty focusing and hearing all of the lecture. In addition, Porsche testified that she has trouble hearing the sermons in church. Clearly, Porsche’s life has been altered drastically by this injury and she has anxiety and angst regarding her inability to hear and the constant ringing in her ear.

Porsche has already lived years with this condition and the medical evidence confirms that the condition is permanent. Regarding this condition, we find a general damage award for Porsche’s past and future pain and suffering of $90,000 to be appropriate in this case.

DECREE

Since the judgment below and the reasons for judgment are contained in a one-page form ruling, and in light of the fact that the damage awards are contained in an asterisked notation entitled “ADDITIONAL REASONS FOR JUDGMENT (FOR COURT USE ONLY),” which likely contradicts La. C.C.P. art. 1918, we hereby recast judgment in favor of Porsche Sade Henderson as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be Judgment in favor of Plaintiff Porsche Sade Henderson and against Defendant Amsar Gregory for $98,500 for general damages for pain and | ^suffering and for medical expenses in the amount of $7,604.18, together with legal interest thereon from judicial demand.

All costs herein are assessed to Defendant Amsar M. Gregory.

JUDGMENT AMENDED, RECAST AND AFFIRMED AS AMENDED AND RECAST.

      . We note that the pleadings refer to Ms. Gregory as both "Amsar” and "Amber” throughout the record.

      . Again, we note the curiously contradictory language of the "Ruling & Judgment,” wherein the trial judge writes that he was "convinced” that Porsche suffered ear ringing following the accident, but then specifically held that she failed to meet her burden of proof on the issue of causation with regard to her tinnitus (ear ringing) and hearing loss.

      . La. C.C.P. art. 1918, Form of final judgment, provides, “A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment."