author: COOKS, Judge.

text:
    STATE of Louisiana v. Ricky J. CHARPENTIER.
    No. 11-953.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Harry A. Daniels, III, Daniels & Washington, Baton Rouge, LA, for Defendant/Appellant, Ricky J. Charpentier.
    J. Phil Haney, District Attorney, Angela B. Odinet, Assistant District Attorney, St. Martinville, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   COOKS, Judge.

| defendant appeals the trial court’s denial of his motion to suppress illegally seized evidence.

FACTS AND PROCEDURAL HISTORY

On November 4, 2009, deputies with the Iberia Parish Sheriffs Office received a tip from an anonymous caller that a person was in possession of a firearm. After several attempts to locate the “suspicious person with a firearm,” the deputies eventually saw a vehicle- fitting the description given by the complainant. While driving toward the vehicle, the deputies observed a person remove a rifle from the vehicle he had been driving and place it in the trunk of another vehicle. Upon seeing this, the deputies called for backup, and when backup arrived, the deputies approached the vehicles. All the persons at the scene were detained, handcuffed, and searched for officers’ safety. Deputies were told the weapon, which was an assault rifle, belonged to Defendant, Ricky Charpentier, the driver of the vehicle fitting the description given by the complainant.

Defendant, who had prior felony convictions, was arrested and charged with possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. Defendant filed a “Motion to Suppress Illegally Seized Evidence.” A hearing was held on the motion, following which the motion was denied. Defendant then pled guilty to the charge but reserved his right to appeal the denial of the motion to suppress the evidence. He was sentenced that same date to ten years at hard labor, to run concurrently with any other sentence he may have been serving at the time.

Defendant has perfected a timely appeal, asserting that the trial court erred when it denied the “Motion to Suppress Illegally Seized Evidence.” For the following reasons, we find merit to Defendant’s claim and reverse the trial court’s ruling and remand the matter for further proceedings.

| ¡ANALYSIS

Defendant argues he was arrested without probable cause when the police surrounded his vehicle, ordered him to the ground, and handcuffed him. He contends neither the anonymous caller’s tip nor the deputy’s observation of him putting a rifle into the trunk of a vehicle established probable cause sufficient to support an arrest. Therefore, Defendant argues, the evidence should be suppressed.

The State cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and argues there was reasonable suspicion that Defendant had committed, was committing, or was about to commit a crime. The State asserts that Defendant was not arrested until after the deputy determined he was a felon and had a firearm in his possession. Accordingly, the investigatory stop was a legal detention, and the trial court did not err when it denied the motion to suppress the evidence.

At the suppression hearing, Deputy Gaylord Boyd, a patrol officer with the Iberia Parish Sheriffs Office, stated while on patrol, on November 4, 2009, he and his partner, Deputy Sonnier, were “dispatched tó a complaint involving a suspicious person with a firearm.” He explained that based on the “unknown complainant’s” instructions, he went to an area of town where the suspect was supposed to be located in a vehicle. The described vehicle was not at that location. However, when he told the dispatcher he could not locate the vehicle, the dispatcher informed him that the complainant was still on the line and indicated a different location. The vehicle was also not at the second location. The deputies decided to drive around and shortly thereafter spotted a vehicle similar to the vehicle described by the complainant parked alongside the roadway. The vehicle was parked directly behind another vehicle. As the deputies drove towards the vehicle, they observed a person remove a rifle from the vehicle he had been driving and place it in the trunk of the other vehicle. Deputy Boyd described the rifle as a | s7.62x39 SKS assault rifle. The record does not state whether the deputy-recognized the rifle as an assault rifle pri- or to or after obtaining custody of the gun.

There were two other men on the scene, Dwayne Laviolette, who owned the second vehicle, and his passenger, Mr. Delahous-saye. There was also an unidentified female in the Defendant’s vehicle. The deputy testified that he called for backup and waited until Defendant placed the rifle in the trunk of the second vehicle. Once backup arrived, he and his partner approached. He stated that “[a]t that point everybody was detained.” Each person was handcuffed and searched for officers’ safety. Deputy Sonnier advised Laviolette and Delahoussaye of their rights and questioned them. When asked if anyone made any statements, Deputy Boyd stated that “Mr. Laviolette made the statement that it was not his rifle and for Mr. Charpentier; the suspect could tell us the truth about the weapon.” Laviolette voluntarily opened the trunk of his vehicle, and Deputy Boyd took custody of the rifle.

Deputy Boyd stated that Defendant told him “he used it [the rifle] and was going to use it to help some of his homeboys out that was [sic] having problems at the St. Edwards housing apartment over on Mississippi Street.” Deputy Boyd agreed that although he recorded Laviolette’s statement in his police report, he did not note Defendant’s statement. During this time, dispatch advised him that Defendant had prior felony convictions. Defendant was then placed under arrest.

Deputy Boyd stated he never spoke with the person who called regarding someone with a firearm. He had no idea who the caller was, and the caller never gave a name. He stated he was not even sure if the caller knew the occupant of the vehicle.

Deputy Boyd further described the scene upon initial contact with the three men. Three or four other patrol cars arrived within fifteen to thirty seconds of his call for a backup with lights and sirens activated. Defendant’s vehicle and the Lsecond vehicle were surrounded. All the officers had their weapons pulled and pointed at the men. They were ordered to their knees and handcuffed prior to being searched for weapons.

Following this testimony, the trial court denied the motion to suppress, stating that “[r]easonable suspicion did exist at that time for them to detain and ask questions pursuant to the Constitution and the clarification thereof.”

Defendant argues in brief that even though Deputy Boyd testified he did not formally arrest Defendant until after he learned that Defendant was a convicted felon, the actions of the police constituted an effective arrest of the three men. He contends that he “was arrested when the officers pointed their handguns at him, ordered him to get down on his knees and not move until he was forcibly restrained by the officers placing handcuffs on him.” Defendant argues, however, there was no probable cause to arrest him.

In brief, the State does not address whether the police action constituted an arrest with or without probable cause. The State argues there was reasonable suspicion to conduct an investigatory stop based on the anonymous call and the deputies’ observations pursuant to La.Code CrimJP. art. 215.1.

Louisiana Code of Criminal Procedure Article 215.1(A) provides:

A law enforcement officer may stop a person in a public place whom he suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

The State agrees it is not a crime for a citizen to possess a gun. However, “[a]s Officer Boyd clarifies it is suspicious for an individual to transport a semi-automatic rifle and to change its location in the middle of the street.”

While discussing investigatory stops, the fifth circuit noted:

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. But the right of law enforeement | r,officers to stop and interrogate those reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1 and by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).
Although Article 215.1 permits an officer to stop a citizen in a public place and question him, such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, a criminal offense. State v. Temple, 02-1895, p. 4 (La.9/9/03), 854 So.2d 856, 860; State v. Collins, 04-751, p. 3 (La.App. 5 Cir. 11/30/04), 890 So.2d 616, 618. The detaining officer “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity....’” State v. Collins, supra, quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Moreover, the officer must be able to articulate specific facts upon which his suspicion is based. State v. Becnel, 04-1266 (La.App. 5 Cir. 5/31/05), 904 So.2d 838, 852.
In determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, “giving deference to the inferences and deductions of a trained police officer ‘that might well elude an untrained person.’ ” State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049 (per curiam), quoting Cortez, 449 U.S. at 418, 101 S.Ct. at 695. Factors that may support reasonable suspicion for an investigatory stop include an officer’s experience, his or her knowledge of recent criminal patterns, and his or her knowledge of an area’s frequent incidence of crime. State v. Mitchell, 04-136 (La.App. 5 Cir. 6/29/04), 877 So.2d 1151, 1155.
The State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSAC.Cr.P. art. 701 D. The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Cooley, 03-418 (La.App. 5 Cir. 9/30/03), 857 So.2d 1209, 1216, writ denied, 03-3107 (La.3/12/04), 869 So.2d 818. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. State v. Becnel, supra.

State v. Clay, 06-37, pp. 4-5 (La.App. 5 Cir. 4/25/06), 930 So.2d 1028, 1031-32 (alteration in original).

I,In Clay, where the fifth circuit did not find “reasonable suspicion,” two deputies received an anonymous tip that gunfire was heard on a particular street. Upon arriving at the street, the deputies saw two men walking from the direction of the reported gunfire. One deputy conducted a field interview while the second deputy frisked one of the defendants. Crack cocaine was found in one of his pockets. The defendant argued that an anonymous report of gunfire and his presence in a high crime area was not enough to support reasonable suspicion for an investigatory stop. The fifth circuit agreed, noting:

Under certain circumstances, an informant’s tip can provide reasonable suspicion to detain and question a person. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); State v. Smith, 00-1838 (La.5/25/01), 785 So.2d 815, 816 (per curiam). Whether an informant’s tip creates reasonable suspicion necessary to justify an investigatory stop is determined by considering the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 2320, 76 L.Ed.2d 527 (1983); State v. Boss, 04-457, p. 6 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 586. The anonymous caller’s ability to predict the suspect’s future behavior goes toward proving reliability, as it demonstrates inside information and a special familiarity with the suspect’s affairs. See, Alabama v. White, 496 U.S. at 332, 110 S.Ct. at 2417; State v. Boss, supra. Independent corroboration of the details of an informant’s tip by police investigation is valuable to the totality of the circumstances analysis. State v. Boss, supra. A non-predictive anonymous tip paired with either police corroboration or independent police observation of unusually suspicious conduct can provide police with the reasonable suspicion needed to temporarily detain the suspect. Id. “[I]f a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Alabama v. White, 496 U.S. at 330, 110 S.Ct. at 2416. See also, State v. Boss, supra.
The evidence adduced at the suppression hearing shows that the officers did not have reasonable suspicion to stop defendant. First, the anonymous tip had a low degree of reliability. Deputy Franklin testified that the caller did not report having seen someone firing a gun; rather, this person had only heard gunshots. Further, there was no description given of a perpetrator. Deputy Franklin could not say how long it took her to get to Pailet Street after she was dispatched. The greater the time span, the less likely it was that the perpetrator 17would still be at or near the scene. While the officer had reason to believe a crime (illegal discharge of a firearm) had been committed, she did not have reasonable suspicion that defendant had committed a crime. Deputy Franklin testified that neither defendant nor his companion exhibited behavior that indicated they were carrying weapons. She stopped them because they happened to be in the area where the gunfire was reported.
The officer stated she knew the street where she saw defendant as a high crime area with a great deal of drug activity. However, a person’s mere presence in a high crime area, without more, does not provide police with reasonable suspicion based upon articulable facts to make an investigatory stop. See, State v. Washington, 03-1134 (La.App. 5 Cir. 2/10/04), 866 So.2d 1058, 1062. See also, State v. Blasio, 98-0077 (La.App. 4 Cir. 10/21/98), 720 So.2d 749, 750 (“A stop in which a defendant is merely walking in a high crime area is unjustified”).

Id. at 1032 (alteration in original).

In the current case, Deputy Boyd testified he had no clue as to who the anonymous caller was. He did not speak to the caller directly but was advised through the dispatcher. Deputy Boyd was told only that someone had a firearm in his vehicle. There was only a description of the vehicle. He was not told who the person allegedly possessing the firearm was nor was he given a description of the person. He was not told whether the caller saw the person fire the rifle, point the rifle at anyone, or heard threats to do so. Further, the vehicle was not in the two locations the caller said it could be found. The deputies only located Defendant because he was driving around the'area and spotted a vehicle similar to the one described by the caller.

Finally, as noted above, a non-predictive anonymous tip together with independent police observation of unusually suspicious conduct can provide police with the reasonable suspicion needed to temporarily detain the suspect. In the current case, the deputy, when asked, “How often do you see people .transporting | ssemiautomatic assault rifles from one trunk to another in the middle of the street?” he replied, “Not often,” and then agreed it was suspicious.

However, the tip which was relied on in this case was of a very low degree of reliability with no identification of the alleged offender and that, despite the deputy’s agreement otherwise, transferring a weapon from the trunk of one vehicle to another vehicle’s trunk is not a suspicious activity — such as observing one person slipping money into the hands of another who surreptitiously slips a small quantity of something into the purchaser’s hand while standing on a street corner, which in an experienced officer’s opinion could very well be an illegal drug transaction.

The State argues that Laviolette consented to the search of his vehicle and that Defendant, after he had been Mirandized, admitted he used and planned to use the rifle; therefore, there were “no grounds to challenge the admissibility of the statements given.”

As for Laviolette’s consent to search the trunk of his vehicle, under Louisiana law, any person adversely affected by a warrantless search and seizure may raise the violation of a third person’s constitutional rights. State v. Jackson, 09-1983 (La.7/6/10), 42 So.3d 368. In State v. Owen, 453 So.2d 1202, 1206 (La.1984) (citations omitted), the supreme court explained:

[I]f the consent was obtained after an illegal detention or entry, the consent was valid only if it was the product of a free will and not the result of an exploitation of the previous illegality. Among the factors considered in determining whether the consent was sufficiently attenuated from the unlawful conduct to be a product of a free will are whether the police officers adequately informed the individual that he need not comply with the request, the temporal proximity of the illegality and the consent, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct.

[ JSee also State v. Harris, 09-62 (La.App. 3 Cir. 10/7/09), 21 So.3d 437, wherein this court found that the State failed to meet its burden to prove that the defendant gave his consent and that the consent was free and voluntary.

Furthermore, “[s]tatements given during a period of illegal detention are inadmissible, even though voluntarily given, if they are the product of illegal detention and not the result of an independent act of free will.” State v. Fisher, 97-1133, p. 11 (La.9/9/98), 720 So.2d 1179, 1185. While a defendant has the burden of proving the grounds for his motion, the State has the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant. La.Code Crim.P. art. 703(D).

In Fisher, following a fatal shooting, “ ‘people in the neighborhood’ ” who did not see the shooting told the police that Fisher committed the killing. Id. at 1181. Months later, the police spotted Fisher as a passenger in a vehicle and pulled the vehicle over. They handcuffed him and put him into the police unit to transport him to the police station. During this time, the defendant apparently made three incriminating statements. After being convicted of second degree murder by a jury, he appealed the trial court’s denial of his motion to suppress the statements. The supreme court found that Fisher had been effectively arrested without probable cause and that the trial court erred when it denied his motion to suppress the statements. The supreme court stated:

The determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. State v. Allen, 95-1754 (La.9/5/96); 682 So.2d 713. A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Allen, 682 So.2d at 719; Moreno, 619 So.2d at 65 (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended restraint on the persons liberty. Allen, 682 So.2d at 719; State v. Simms, 571 So.2d 145, 148 (La.1990).
[inIn the present case, the police forcibly restrained defendant by handcuffing him and putting him in the back seat of the police car bound for the station. No reasonable person in this position could have believed he or she was “free to go,” and indeed defendant was not. In addition, Officer Taylor testified that he intended to take defendant to the police station, indicating an unmistakable, intent to impose a restriction on defendant’s liberty more extensive than an investigatory stop.
Arrests have been found in many similar situations. See, e.g., Dunaway v. New York, 442 U.S. 200, 218-19, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (finding that an arrest occurred when the defendant was “picked up” and brought in for questioning about a murder); United States v. Gentry, 839 F.2d 1065, 1070 (5th Cir.1988) (finding an arrest when the defendants were removed from their vehicle at gunpoint); Passman v. Blackburn, 797 F.2d 1335, 1346 (5th Cir.1986) (finding the suspect was “unquestionably” arrested by being handcuffed, placed in a police car and driven to the station).
Under the totality of the circumstances in the present case, defendant was under arrest when he allegedly made his statements.

Id. at 1183-84 (emphasis in original).

In the current case, the three men were ordered out of their vehicles at gunpoint by at least five to seven officers, ordered to their knees, and then handcuffed. While still on their knees, the deputies began questioning the three men. We find at this point the three men were effectively arrested at this point without probable cause. In State v. Porche, 06-312, pp. 7-9 (La.11/29/06), 943 So.2d 335, 339-40, the supreme court discussed what circumstances effectuated an arrest:

Inherent in the right of the police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. Mena, 544 U.S. at 99, 125 S.Ct. at 1470 (“ ‘Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.’ ”) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989)); United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993) (“Since police officers should not be |n required to take unnecessary-risks in performing their duties, they are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a Terry] stop.’”) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985)).
Nevertheless, the use of handcuffs incrementally increases the degree of force used in detaining an individual. Mena, 544 U.S. at 99, 125 S.Ct. at 1470 (“The imposition of correctly applied handcuffs on Mena, who was already being lawfully detained during a search of the house, was undoubtedly a separate intrusion in addition to detention in the converted garage.”); State v. Broussard, 00-3230, p. 4 (La.5/24/02), 816 So.2d 1284, 1287 (“ ‘There is no question that the use of handcuffs, being one of the most recognizable indicia of a traditional arrest, substantially aggravates the intrusiveness of a putative Terry stop.’ ”) (quoting United States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir.l998)(internal quotation marks omitted)). Thus, because the police conducting an investigatory stop “may not ... seek to verify their suspicions by means that approach the conditions of arrest,” Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983), the use of handcuffs must appear objectively reasonable “in light of the facts and circumstances confronting [the police],” taking into account “the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397, 109 S.Ct. at 1872; Broussard, 00-3230 at 4, 816 So.2d at 1287 (“ ‘Thus, when the government seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, it must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purpose of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm.’ ”) (quoting Acosta-Colon, 157 F.3d at 18-19). If the added intrusion is not warranted under particular circumstances, a Terry stop may escalate into a de facto arrest requiring probable cause to render it valid. United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir.l994)(“Because the specific nature of this stop [in which defendant was handcuffed and strapped into a police cruiser] was not justified under the Terry doctrine, we must treat it as an arrest, requiring probable cause.”); Broussard, 00-3230, pp. 3-4, 816 So.2d at 1287 (“[Bfrevity alone does not always distinguish investigatory stops from arrests, as the former may be accompanied by arrest-like features, e.g., use of drawn weapons and handcuffs, which may, but do not invariably, render the seizure a de | yfacto arrest.”) (citing Acosta-Colon, 157 F.3d at 18-19)(emphasis added).

While the deputy testified the three men were handcuffed for officer safety, he had also stated that they waited until the rifle had been placed into the trunk of the vehicle before they approached. There was no testimony otherwise that the deputies had any reason to believe Defendant or the two men were armed and violent. This was not suspected drug activity or any other reported violent crime, and possession of a firearm is not necessarily indicative of a violent nature.

In Fisher, 720 So.2d 1179, 1185-86, the supreme court went on to determine whether the statements made by the defendant were the result of an independent act of free will:

Statements given during a period of illegal detention are inadmissible, even though voluntarily given, if they are the product of illegal detention and not the result of an independent act of free will. Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
The fact that the accused would not have made a statement “but for” the illegal arrest does not alone establish a causal link sufficient to require exclusion of the statement. Brown, 422 U.S. at 602-03, 95 S.Ct. 2254. On the other hand, the fact that an accused may have been properly informed of his constitutional rights and waived them, while relevant, does not alone break the causal link. Taylor [v. Alabama], 457 U.S. [687] at 690, 102 S.Ct. 2664 [73 L.Ed.2d 314 (1982)]; Brown, 422 U.S. at 601, 603, 95 S.Ct. 2254 (holding Miranda warnings are not a “talisman”). Other factors in assessing the link between the illegal arrest and the statements are the existence of intervening circumstances, the “temporal proximity” of the arrest and the statements, and the “purpose and flagrancy of the official misconduct.” Brown, 422 U.S. at 604, 95 S.Ct. 2254. See also Taylor, 457 U.S. at 690-91, 102 S.Ct. 2664; Dunaway v. New York, 442 U.S. 200, 218-19, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).
In the present case, there was no significant time lapse between the unlawful arrest and the statements in the back of the police car and at the police station, which were made shortly after the arrest. Moreover, there were no significant intervening circumstances.

|,¡{While the deputy testified that the three men had been Mirandized, the fact they may have been advised of their rights, in this case, did not break the causal link. There were no intervening circumstances. The men were ordered to their knees at gunpoint by numerous law enforcement officers, handcuffed, and immediately questioned, all without probable cause or reasonable suspicion that they had committed, were committing, or about to commit a crime. The evidence and statements were inadmissible for the reason the detention was illegal and that there were no intervening circumstances between the discovery of the rifle and Defendant’s statements which would show an independent act of free will. Accordingly, the trial court erred when it denied Defendant’s motion to suppress the evidence.

DECREE

For the foregoing reasons, we find reverse the trial court’s denial of the motion to suppress. As a result, Defendant’s guilty plea must be vacated and the matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    LDK INVESTMENTS, LLC v. Robert Mayo AMONS, III, et al.
    No. 11-1076.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Charles G. Gravel, Gravel, Cespiva, & Wilkerson, Alexandria, LA, for Defendants/Appellees, Paul and Charmin Weis, Perry and Tia Jamison.
    James C. Downs, Attorney at Law, Alexandria, LA, for Defendants/Appellants, Opal Amons, Tammy Amons, Robert Amons, Jr., Robert Amons, III.
    William M. Ford, Susan Ford Fiser, Attorneys at Law, Alexandria, LA, for Plain-tiffAppellee, LDK Investments, LLC.
    Gregory N. Wampler, Lemoine & Wam-pler, Pineville, LA, for Defendants/Appellants, John and Judy Jameson, Edna Jameson, James Jameson, Jr., Larry and Dawn Jameson, Gene and Linda Gunter.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

hln this suit by the owner of a landlocked estate for predial servitude across its neighbors’ properties, the trial court granted Plaintiff the relief it sought without conducting a full hearing or determining that the servitude granted was the least injurious to the landowners and the shortest distance to the nearest public road. It also failed to address whether damages were owed to Defendant pursuant to La.Code Civ.P. art. 689, and, if so, how much was owed. For the following reasons, we reverse the trial court’s judgment and remand the matter for further proceedings.

Facts and Procedural History

Plaintiff, LDK Investments, LLC (LDK), owns a piece of property on Cata-houla Lake that is allegedly landlocked. Defendants, Robert Mayo Amons, III and eighteen others, are the owners of three contiguous tracts of land between D. Nu-gent Road and the LDK property. The first tract of land immediately east of the LDK property (the Jameson tract) is owned by Larry E. Jameson, Dawn K. Jameson, James R. Jameson, Jr., Edna S. Jameson, John G. Jameson, Judy H. Jame-son, Gene H. Gunter, and Linda F. Gunter. The second tract of land (the Weis tract) lies south of the Jameson tract and is owned by Perry Jamison and Paul Weis, and their wives, Tia Basco Jamison and Charmin Basco Weis. The third tract of land (the Amons tract) lies south of the Weis tract and fronts D. Nugent Road, a gravel road maintained by the parish. The Amons tract is owned by Robert Mayo Amons, III, Robert Mayo Amons, Jr., and Opal 0. Amons.

Historically, according to Plaintiff, the LDK property was accessed by traveling from D. Nugent Road through all three tracts of land along a gravel pipeline road and then across the Jameson tract to the LDK property. Several of the Defendants installed a gate with a keyed lock on the route, which prohibited 12Plaintiff from accessing its property using that particular route. LDK filed suit against Defendants, seeking a permanent predial servitude “for passage and for utilities” along the route that owners of the LDK property have historically used; that is, from D. Nugent Road, along the pipeline gravel road through the Amons tract, the Weis tract, and the Jameson tract and then across the Jameson tract to the LDK property.

Robert M. Amons, III, Robert M. Amons, Jr., and Opal Nugent Amons filed a joint written response to Plaintiffs petition in which they contested the suit, arguing that the gravel pipeline road is private, that the land through which the road crosses has been fenced off and is used as pasture for horses, and that LDK’s use of the road would destroy their livelihood. They asserted that utilities were not available down D. Nugent Road, which is a poorly maintained parish road used only by fishermen and hunters, and that there are at least two other roads (Hickory Grove Loop and Ivan Normand Road) that are closer to the LDK property than D. Nugent Road.

LDK then filed a first supplemental and amending petition, naming additional individuals as defendants. Edwin Ray Bel-gard and Brenda Paulk Belgard filed a joint written response that seemed to suggest that their property is not one of the three tracts upon which LDK was seeking to establish a predial servitude.

Two formal answers were filed: one by Larry E. Jameson and nine other Defendants, and one by Perry E. Jamison, Tia Basco Jamison, Paul Weis, and Charmin Basco Weis.

On June 23, 2008, LDK filed for a preliminary default against six of the Defendants, Norman Ambrose, III, Bonnie Ryder Ambrose, Robert M. Amons, Jr., Opal Nugent Amons, Edwin Ray Belgard, and Brenda Paulk Belgard, alleging that |sthey did not file an answer with the court. On June 25, 2008, the preliminary default was granted. The preliminary • default judgment was not confirmed.

Trial was set for February 26, 2009. The day before trial, Defendants filed a peremptory exception of non-joinder of a necessary party, which was set for hearing on March 16, 2009. At trial, after Plaintiff introduced several exhibits, the parties entered into a stipulation that was to become an interim order of the court. The parties stipulated that an interim predial servitude would be granted along the pipeline road, during which time Plaintiff would receive keys to the gates, that a survey would be completed of the properties in question to determine the shortest and least injurious method of accessing Plaintiffs property, and that the parties would meet again with the court subsequent to the completion of the survey. All subpoenas were extended indefinitely, and the interim order was signed on April 22, 2009.

After the surveys were completed, Plaintiff filed a rule for entry of judgment of servitude, which was set for May 28, 2011. On May 9, 2011, Defendants filed a motion to set its exception of non-joinder of a necessary party for hearing. It also filed an exception of prematurity, unauthorized use of summary proceedings, and no cause of action. The exceptions were set to be heard on August 22, 2011.

At the hearing on Plaintiffs rule for entry of judgment, the trial court heard argument from counsel, including arguments from the defense counsel that exceptions were pending, that a judgment could not be decided until the exceptions were heard, and that the trial was not concluded so rendering judgment would be improper. The trial court made several statements concerning the disposition of the case and agreed to give Defendants ten days to file briefs explaining their positions on the servitude and exceptions before rendering judgment.

4On May 27, 2011, only four days after the hearing, the trial court rendered judgment in favor of Plaintiff, said judgment granting a non-exclusive predial servitude across Defendants’ property in favor of Plaintiffs property. The judgment further cast the survey fees as costs, dismissed all outstanding claims and demands, and split costs in individual proportions by the individual parties.

Issues

The Amons and Jameson Defendants have appealed, assigning between them four errors for our review. First, they assert that the trial court erred in overruling the Defendants’ exceptions of non-join-der of a necessary party, prematurity, no cause of action, and unauthorized use of summary proceedings. Second, they assert that the trial court erred in determining that the February 26, 2009 hearing was a complete trial on the merits. Third, they assert that the trial court erred in granting LDK a permanent servitude without a trial. Finally, they assert that even if the February 26, 2009 hearing is interpreted to be a full and complete trial, the trial court erred in granting LDK a permanent servitude when it failed to allege in its petition that the proposed route was the shortest route from the LDK property to the nearest public road and when evidence suggests that there are shorter options available.

Standard of Review

This case presents questions of law. Questions of law are reviewed de novo. Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654. In conducting a de novo review, appellate courts “determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation of application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.” Id. at 657 (quoting Citgo Petroleum Corp. v. Frantz, 03-88, pp. 3-4 (La.App. 3 Cir. 56/4/03), 847 So.2d 734, 736, writ denied, 03-1911 (La.10/31/03), 857 So.2d 484). Further, appellate courts do not assign special weight to the trial court when conducting a de novo review of legal questions before rendering judgment based on the record. Id.

Discussion

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. La.Civ.Code art. 646. “The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.” La.Civ.Code art. 689. Further, the dominant estate owner “may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.” La.Civ.Code art. 692. “A two-step analysis is required by article 692, former article 700. First to be determined is which estate owes the servitude of passage. Only then should the courts engage in a balancing test to determine where on the servient estate the passage should be located.” May v. Miller, 06-418, p. 6 (La.App. 3 Cir. 10/11/06), 941 So.2d 661, 666, writ denied, 07-09 (La.3/9/07), 949 So.2d 443 (citing Davis v. Culpepper, 34,736, pp. 7-9 (La.App. 2 Cir. 7/11/01), 794 So.2d 68, writ denied, 01-2573 (La.12/14/01), 804 So.2d 646 (citations omitted)). “In the absence of exceptional circumstances, it is only the estate that provides the shortest access to the nearest public road that will be burdened with the servitude.” Id. at 667.

The first exception recognized by the jurisprudence is when the estate which provides the shortest route is covered by water or is otherwise not accessible year round. The second derogation from the general rule is when the costs associated with crossing the estate which is the shortest distance from the public road are so exceptional that from a practical standpoint it is economically unfeasible to build.
IfiAs set forth above, courts should first determine which estate owes the servitude. The shortest straight line distance to the nearest public road determines which estate owes the servitude. The party arguing that the servitude should instead be imposed on another estate bears the burden of establishing that one o[f] the two exceptions is applicable.

Id. (citations omitted).

We begin our analysis by focusing on Defendants’ first assignment of error, that the trial court erred in overruling the exceptions of non-joinder of a necessary party, prematurity, no cause of action, and unauthorized use of summary proceedings. “The declinatory exception, the dilatory exception, and the peremptory exception when pleaded before or in the answer shall be tried and decided in advance of the trial of the case.” La.Code Civ.P. art. 929(A). A hearing is mandated on the exceptions in advance of trial when an answer has not been filed; when an answer has been filed, the trial court may refer the exceptions to the trial on the merits in lieu of a separate hearing. Short v. Giffin, 94-1757 (La.App. 4 Cir. 11/17/94), 648 So.2d 937, writ denied, 95-684 (La.6/16/95), 656 So.2d 1008. It is clear from the record that there was not a trial on any of the exceptions filed by Defendants. The record also supports the conclusion that the trial court did not refer any of the exceptions to the trial on the merits. Accordingly, the trial court erroneously overruled Defendants’ exceptions.

In their next assignment of error, Defendants argue that the trial court inappropriately rendered judgment prior to the completion of trial. We agree. There are three general modes of procedure for obtaining judicial resolution to civil disputes; ordinary, summary, and ex-ecutory. La.Code Civ.P. art. 851. Ordinary proceedings are used in district court in all cases, except as otherwise provided by law. Id. Neither summary nor execu-tory proceedings are procedurally proper means to establish a predial servitude under La.Civ.Code art. |7692. See La.Code Civ.P. arts. 851, 2591, and 2631. In ordinary proceedings, final judgments are generally obtained after a trial, in which evidence was adduced. In some specific instances final judgments are granted upon written motions such as a motion for judgment on the pleadings or a motion for summary judgment. No such motion was filed into the record in the instant suit. It is clear to this court that the parties intended to try the matter.

A trial requires that both plaintiff and defendant present evidence to support their arguments. La.Code Civ.P. art. 1632. In the instant ease, Plaintiff introduced evidence. The parties then entered into a stipulation that became an interim order of the court on April 22, 2009. The record supports the conclusion that both parties knew the stipulation was a temporary solution and that they would be coming back for the full hearing wherein each would be able to offer evidence in support of its position if they could not reach an agreement. Plaintiff went so far as to ask that the court extend the subpoenas issued for that hearing until the matter could be reset.

Defendants were not given an opportunity to introduce evidence or testimony in support of their position after the necessary survey was completed. The final judgment rendered was based solely on the exhibits that were introduced, but never authenticated by Plaintiff, and argument from counsel. Indeed, in its brief to this court, Plaintiff states, “[pjlease see the eleven exhibits of Petitioner for all the proof needed at trial.” Yet, Plaintiffs never filed a motion for judgment on the pleadings or motion for summary judgment, which would have allowed them to submit their case without a trial. Because they did not choose either of those procedural avenues to seek resolution and instead had their matter set for a hearing, it was improper for the trial court to render judgment absent a full trial.

1 ¡¿Disposition

For the foregoing reasons, we reverse the entirety of the judgment and remand the matter for further proceedings consistent with this opinion. We need not address the remaining assignments of error, as our decision has rendered them moot. Costs are assessed against Plaintiff/Appel-lee, LDK Investments, LLC.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . Although introduced into evidence, these exhibits were never authenticated.


author: PAINTER, Judge.

text:
    Phyllis VENABLE v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    No. 11-1207.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    Thomas D. Davenport, Jr., William M. Ford, Attorneys at Law, Alexandria, LA, for Plaintiff/Appellee, Phyllis Venable.
    Jennifer M. Lawrence, Attorney at Law, New Orleans, LA, for Defendant/Appellant, The Prudential Insurance Company of America.

      Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

|! Plaintiff filed a motion to enforce a settlement of her claim to receive proceeds from a life insurance policy which listed her as a beneficiary. The City Court of Alexandria found that there was a valid settlement agreement and ordered payment to Plaintiff, including interest, penalties, and attorney’s fees. Defendant appeals. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Ruby B. McGago, Plaintiffs mother, was covered by a life insurance policy written by Defendant, The Prudential Insurance Company of America. Plaintiff and her sister, Patricia A. Martin, were designated as primary beneficiaries, and McGago’s granddaughter, Kim M. Martin, was designated as a contingent beneficiary. McGa-go died on May 9, 2010. Plaintiff sought to collect under the policy. Prudential, however, refused to pay based upon its assertion that a notation on the policy that each primary beneficiary and the contingent beneficiary were to receive thirty-three and one-third percent (33 %) of the death benefits created an ambiguity that could not be resolved without risk of multiple liability. Prudential received beneficiary settlement forms seeking payment of the death benefit from all three beneficiaries. Prudential claimed to be uncertain as to whether the death benefits should be divided into two or three portions.

On August 25, 2010, Plaintiff filed a suit for damages and enforcement of a life insurance policy. In response, Prudential filed exceptions, an answer, a reconven-tional demand for concursus, and a third party demand (naming Patricia Martin, Kim M. Martin, and Good Shepherd Funeral Home), and obtained an order to deposit the full amount of the death benefits due under the policy into the registry of the court. However, it was not until January 24, 2011, that Prudential deposited $17,000.00 into the registry of the court.

12Settlement negotiations began shortly after Plaintiffs suit was filed. Kim M. Martin allegedly indicated her intent to waive any claims to the death benefits. The record contains a number of letters and e-mails detailing these negotiations. Specifically, Plaintiff alleges that a settlement agreement was reached on November 22, 2010, when counsel for Prudential sent a letter to the trial court stating that the parties had reached an oral agreement to settle, and reduced it to writing on December 3, 2010, in the form of a draft of a confidential settlement agreement and release. The trial court agreed with Plaintiff and granted the motion to enforce settlement, directed the clerk of court to issue a check to Plaintiff in the amount of $5,505.92 plus interest from the date of judicial demand, and awarded Plaintiff $11,104.90 in penalties and $5,000.00 in attorney’s fees. Prudential now appeals, asserting that: (1) the trial court erred in finding that there was a valid settlement agreement reflecting the mutual intentions of the parties that had been reduced to writing; (2) the trial court abused its discretion in awarding penalties under La. R.S. 22:1973 for failing to pay the settlement within thirty days of the agreement allegedly being reduced to writing; (3) the trial court erred in awarding attorney’s fees where there was no basis for the award in law or contract and absent any proof of the amount of fees incurred; (4) the trial court erred in awarding legal interest from the date of judicial demand on the insurance proceeds; and (5) the trial court erred in allowing parole evidence on the issue of whether a settlement had been reached. We agree with Prudential that an enforceable settlement agreement did not exist, reverse the trial court’s judgment, and remand the matter to the trial court for further proceedings.

DISCUSSION

We first address whether the parties reached a valid settlement agreement that was reduced to writing as required by La.Civ.Code arts. 3071 and 3072. Louisiana Civil Code Article 3071 reads: “A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty |sconcerning an obligation or other legal relationship.” Louisiana Civil Code Article 3072 requires that a compromise “shall be made in writing.”

We also note that La.Civ.Code art. 3075 provides that when a compromise is entered into by “one of multiple persons with an interest in the same matter,” it “does not bind the others” and cannot “be raised by them as a defense, unless the matter compromised is a solidary obligation.” Furthermore, “[a] compromise settles only those differences that the parties clearly intended to settle.” La.Civ.Code art. 3076.

In this instance, there was much communication between Plaintiffs attorney and Prudential’s attorney. Plaintiffs attorney, Thomas Davenport, even withdrew as counsel of record so that he could testify as a witness concerning the alleged settlement. The trial court relied upon several exhibits to support its finding that there was a valid settlement agreement that had been reduced to writing. The first was a letter dated November 22, 2010, from Prudential’s counsel to the trial court, indicating that there had been an oral settlement of the case. However, this letter also indicated that should the “settlement not be reduced to writing, Prudential will immediately deposit the death benefit with the court pursuant to its earlier order.” Next was a letter from Prudential’s counsel dated December 3, 2010, enclosing a draft “Confidential Settlement Agreement and Release.” The release documents had to be signed by Plaintiff, Patricia A. Martin, Kim M. Martin, and a representative of the funeral home. This draft was refused by Plaintiffs counsel, by letter dated December 3, 2010, because several of the terms were unacceptable. For example, Plaintiffs counsel expressed concern about taxation issues, stated that he never agreed to file any dismissal, to pay the court costs incurred by Prudential, or to be governed by the laws of the State of New Jersey.

|4The trial court next relied on a letter dated December 10, 2010, from Plaintiffs counsel to Prudential’s counsel. This letter stated, “We did not agree to the Confidential Settlement Agreement and Release ” and “[i]f this case is settled, make the revisions as requested in my December 3, 2010, correspondence or we will process [sic] to trial.” Counsel for Prudential presumably made some of the requested changes to the release documents; however, Prudential did not agree to remove the confidentiality provision. Plaintiffs counsel responded that his client would proceed with the suit and not enter into further settlement negotiations. Thereafter, Plaintiffs counsel demanded discovery responses and filed a motion to strike Prudential’s exception of no cause of action. On December 17, 2010, Prudential agreed to delete the confidentiality provision and sent correspondence to Plaintiffs counsel indicating that if all signatures could be obtained, a check would be ordered before the end of the year. Plaintiffs counsel responded, “I will not stop my litigation efforts on another promise to settle this case.”

Settlement negotiations continued, but the parties could not agree on whether the check had to be delivered first or whether the release had to be signed first. Counsel for Plaintiff sent a letter to Prudential’s counsel on January 11, 2011, stating, “Should we not receive a check by the end of this week, January 14, 2011, we will proceed to litigation and will not entertain any ‘settlement’ from you or your client.” Following this correspondence, counsel for Prudential notified the trial court that no written settlement agreement could be reached within a time frame acceptable to all parties and deposited $17,000.00 into the registry of the court.

It is clear from this correspondence that there was no meeting of the minds as to several terms of the settlement. While counsel for Plaintiff indicated that Kim M. Martin agreed to waive any claim to the death benefit, there is no indication that he [ ¡¡was authorized to make such a statement. Neither Plaintiff nor Prudential got the performance they were seeking. It is undisputed that the settlement documents remained unsigned.

In Felder v. Georgia Pacific Corp., 405 So.2d 521, 523-24 (La.1981), the Louisiana Supreme Court stated that a settlement need not be contained in one document and “where two instruments, when read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement,” that is sufficient to meet the writing requirement. It is clear that there must be acceptance and acquiescence from both parties. This court previously reversed a trial court’s grant of a motion to enforce settlement in a case similar to the case at bar and stated:

the parties entered into settlement negotiations and felt that they had reached a settlement. However, when it came time to set forth this agreement in writing, the plaintiff refused to accept the release language offered by Schlumber-ger. Argument at the hearing indicates that each party envisioned something different with regard to the release Schlumberger would obtain in exchange for the sum agreed upon, ie., the parties never enjoyed a meeting of the minds as to their intent in entering into the settlement.

Amy v. Schlumberger Tech. Corp., 00-175, p. 5 (La.App. 3 Cir. 6/14/00), 771 So.2d 669, 672.

Moreover, “[tjhere are no cases in which unsigned settlement documents have been held to satisfy the requirements of LSA-C.C. Art. 3071.” Townsend v. Square, 94-758, p. 5 (La.App. 4 Cir. 9/29/94), 643 So.2d 787, 789. The writings relied upon by Plaintiff and the trial court do not satisfy the writing requirement of La.Civ.Code art. 3072. Instead, they clearly demonstrate that there was no agreement to the ultimate terms of a settlement. There was no settlement agreement to enforce. Accordingly, the trial court erred in granting Plaintiffs motion to enforce settlement, and we reverse that judgment in its entirety and remand the matter to the trial court for further proceedings. Since we have reversed the judgment of the trial court and found |ñthat no valid written settlement agreement existed, we need not consider Prudential’s other assignments of error.

DECREE

For all of the foregoing reasons, the trial court’s judgment granting Plaintiffs motion to enforce settlement is reversed in its entirety. The matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to Plaintiff/Appellee, Phyllis Venable.

REVERSED AND REMANDED.

      . There was also a letter dated December 10, 2010, from Davenport’s paralegal to counsel for Prudential indicating that the case was settled and that Kim M. Martin had waived all claims to the funds. Both letters were transmitted by facsimile. However, the letter from Davenport to counsel for Prudential was sent after the paralegal’s letter.


author: GENOVESE, Judge.

text:
    ADVANCED LOGISTICS, LLC v. Jennifer COMEAUX, Brad Brewer, Ryan Fitzgerald, and Necessa Solutions, LLC.
    No. 11-1228.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Steven G. Durio, Joseph F. Durio, Travis J. Broussard, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendants/Appellants, Jennifer Comeaux, Brad Brewer, Ryan Fitzgerald, & NecesSea Solutions, LLC (formerly known as Necessa Solutions, LLC).
    Bradford H. Felder, G. Andrew Veazey, Huval, Veazey, Felder & Renegar, L.L.C., Lafayette, LA, for Plaintiff/Appellee, Advanced Logistics, LLC.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Iiln this trade secrets case, Defendants, Jennifer Comeaux, Brad Brewer, Ryan Fitzgerald, and Necessa Solutions, LLC, appeal the trial court’s grant of a preliminary injunction in favor of Plaintiff, Advanced Logistics, LLC. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 11, 2011, Advanced Logistics, LLC, filed a Petition for Injunctive Relief and for Damages for Unfair Trade Practices against Jennifer Comeaux, Brad Brewer, Ryan Fitzgerald, and Necessa Solutions, LLC. According to its petition, “[o]n Friday, March 25, 2010, Defendant, Ryan Fitzgerald, gave notice of his resignation from Advanced Logistics. After giving his notice, Mr. Fitzgerald removed equipment belonging to Advanced Logistics[,] including computers containing Advanced Logistics’ proprietary information and trade secrets.” Sometime thereafter, Advanced Logistics learned that Mr. Fitzgerald was going to work for a newly-formed business competitor, Necessa Solutions, LLC. On April 11, 2011, the President and CEO of Advanced Logistics, Jeffery Svendson, Sr., questioned Mr. Fitzgerald about the equipment that he was observed removing from Advanced Logistics’ property. Advanced Logistics’ petition also alleged:

Mr. Fitzgerald admitted he removed the equipment, proprietary information, and trade secrets from Advanced Logistics’ offices.
Mr. Fitzgerald also admitted that he had been solicited by a former employee of Advanced Logistics, Brad Brewer, to leave Advanced Logistics and begin working for a company owned by Brad Brewer and Jennifer Comeaux called Necessa Solutions, LLC.

^Defendants filed an Answer and Re-conventional Demand denying “that equipment, proprietary information, and trade secrets were taken by [Mr. Fitzgerald].” However, Defendants admitted that it was their intention to “compete with [Advanced Logistics], with an entirely different and superior product.” Defendants’ reconven-tional demand requested damages on the basis that Advanced Logistics’ claim was “groundless and brought in bad faith or for purposes of harassment[.]”

A hearing on the motion for preliminary injunction against Defendants was held, and the trial court issued Written Reasons for Judgment wherein it found that Advanced Logistics was entitled to a preliminary injunction against Defendants. The trial court then signed a judgment “enjoining Defendants from using any confidential proprietary information or trade secrets of Advanced Logistics ... and ordering the [Defendants to return within two (2) days hereof any equipment, confidential proprietary information, or trade secrets belonging to Advanced Logistics, which is in the [Defendants’ possession or control.” Defendants appeal, and we affirm.

ASSIGNMENTS OF ERROR

On appeal, Defendants assert:

The trial court abused its discretion in the following specific ways:

1. The Court Abused Its Discretion In Issuing A Preliminary Injunction When The Plaintiff Failed To Establish A Prima Facie Case For An Injunction. ...
a. The plaintiff failed to prove Defendants possessed information of the plaintiff which constitutes a trade secret.
b. The trial court did not balance the hardship to each party if the injunction is issued or not issued.
2. The Trial Court Abused Its Discretion In Failing To Require Plaintiff To Prove Its Case By A Preponderance Of The | aEvidence When Plaintiff Requested An Injunction Ordering The Return Of Its Property....

LAW AND DISCUSSION

In order to obtain a preliminary injunction, a petitioner must show that he will suffer irreparable harm, he is entitled to the relief sought, and he must [make] a prima facie showing that he will prevail on the merits of the case. General Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La.1979). An irreparable loss is one that cannot be compensated by money or is not susceptible of measurement by pecuniary standards. Hairford v. Perkins, 520 So.2d 1053 (La.App. 3 Cir.1987). “Trial courts have ‘great discretion’ in determining whether to grant or deny a preliminary injunction.” Pumpelly Oil, Inc. v. Ribbeck Const. Corp., 02-868, p. 6 (La.App. 3 Cir. 2/5/03), 838 So.2d 88, 92.

Derouen’s Heavy Equip., Inc. v. Lafayette City-Parish Consol. Gov’t, 08-1077, pp. 2-3 (La.App. 3 Cir. 3/4/09), 7 So.3d 48, 50-51. “The issuance of a preliminary injunction will not be disturbed on appeal absent an abuse of discretion. Smith [v. W. Va. Oil & Gas Co.], 373 So.2d 488 [(La.1979)].” Gautreau v. Trahan, 07-875, p. 10 (La.App. 3 Cir. 12/5/07), 971 So.2d 445, 451.

The evidence adduced at the hearing of this matter established that Defendants were former employees or owners of Advanced Logistics. The trial court, in its Written Reasons for Judgment, expressed its belief in the contention of Advanced Logistics that Defendants “took active steps to misappropriate software, materials, and industry knowledge that meet the definition of ‘trade secret’ under La.R.S. 51:1431(4).”

Louisiana Revised Statutes 51:1431(4) of the Louisiana Uniform Trade Secrets Act (LUTSA), defines a “trade secret” as:

information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and
|4(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Louisiana Revised Statutes 51:1431(2), provides that “misappropriation” means:

(a) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(b) disclosure or use of a trade secret of another without express or implied consent by a person who:
(i) used improper means to acquire knowledge of the trade secret; or
(ii) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
(aa) derived from or through a person who had utilized improper means to acquire it;
(bb) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(cc) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(iii) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

The trial court determined that the misappropriation of Advanced Logistics’ trade secrets by Defendants “may create a substantial threat of irreparable injury.” The trial court further declared that “the in-junctive relief that Advanced Logistics seeks would only prohibit the [Defendants from engaging in unlawful acts.”

Defendants contend the trial court erred when it failed to consider the hardship that an injunction against it would create. However, at the hearing on the preliminary injunction, Defendants asserted they neither needed nor wanted any | ^proprietary information belonging to Advanced Logistics because they were creating a superior, albeit different, product. If that is the case, Defendants’ argument that an injunction would subject it to an unfair hardship is groundless.

Finally, Defendants contend that the trial court should have required Advanced Logistics to establish its case by a preponderance of the evidence because the injunction requested, and the trial court ordered, a return of property. Again, at the hearing on the preliminary injunction, Defendant asserted they were not in possession of any proprietary information or property belonging to Advanced Logistics. All information and property once in Ryan Fitzgerald’s possession was allegedly returned on April 11, 2011, when he was confronted by Mr. Svendson. The evidence established that Mr. Fitzgerald admitted that he took property and information from Advanced Logistics only after he was shown indisputable photo evidence of himself in possession of said items by Mr. Svendson. Therefore, we find no error in the trial court’s order that Defendants return anything in their possession nor in the burden of proof to which Advanced Logistics was held. The record before us supports a prima facie showing by Advanced Logistics. We further note that this matter involves a preliminary injunction. This is neither a hearing on a permanent injunction nor a trial on the merits. Considering the evidence in the record, we find that the trial court did not abuse its “great discretion” in its issuance of a preliminary injunction.

DECREE

For the foregoing reasons, we affirm the trial court judgment granting the preliminary injunction in favor of Advanced Logistics, LLC. Defendants/Appellants, Jennifer Comeaux, Brad Brewer, Ryan Fitzgerald, and Necessa Solutions, LLC, are cast with all costs of this appeal.

AFFIRMED.

      . We note that in Appellants’ brief, Necessa Solutions, LLC, is referred to as NecesSea, LLC, and that the trial court judgment rendered in this case refers to NecesSea, LLC, f/k/a Necessa Solutions, LLC. For the sake of clarity, we will refer to these entities as Necessa Solutions, LLC, throughout this opinion.


text:
    Sonja Dauzat DELIGANS and Timothy Deligans, Jr. v. ACE AMERICAN INSURANCE COMPANY, Ouachita Coca Cola Bottling, and Christopher L. Brown.
    No. 11-1244.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      W. Jay Luneau, Luneau Law Office, Alexandria, LA, for Plaintiffs/Appellants, Sonja Dauzat Deligans and Timothy Deli-gans, Jr.
    Kevin S. Frederick, James P. Doherty, III, Frederick Law Firm, Lafayette, LA, for Defendants/Appellees, Ace American Insurance Company, Louisiana Coca-Cola Bottling Company, LLC, and Christopher Brown.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

l;In this personal injury action, Plaintiffs, Sonja Deligans and Timothy Deli-gans, Jr., appeal the jury’s award of general and special damages. Defendants, Ace American Insurance Company, Louisiana Coca-Cola Bottling Company, LLC, and Christopher Brown, answered the appeal seeking a review of certain evidentiary rulings made by the trial court. For the following reasons, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

On July 10, 2008, Sonja Deligans was involved in an automobile accident in Alexandria, Louisiana, with Christopher Brown, who was driving a vehicle owned by Louisiana Coca-Cola Bottling Company, LLC (Coca-Cola). Mrs. Deligans and her husband, Timothy Deligans, Jr., filed suit against Mr. Brown, Coca-Cola, and its insurer, Ace American Insurance Company (collectively Ace American). Ace American stipulated to liability, and the matter proceeded to trial by jury on damages alone.

The jury returned a verdict in favor of Mrs. Deligans, finding that the subject accident caused her personal injury and awarding her the following damages:

Past physical pain and suffering $ 9,000.00
Future physical pain and suffering $ 3,000.00
Past mental pain and suffering $ 9,000.00
Future mental pain and suffering $ 600.00
Past disability $ 0.00
Future disability $ 0.00
Past medical expenses $38,043.62
Future medical expenses $ 1,500.00
Past loss of enjoyment of life $ 6,000.00
19 Future loss of enjoyment of life $ 1,200.00

The jury also awarded Mr. Deligans $1,500.00 for loss of consortium.

ASSIGNMENTS OF ERROR

On appeal, Mrs. Deligans asserts that the jury erred in awarding inadequate general and special damages. In its Answer to Appeal, Ace American contends that the trial court made evidentiary rulings which were contrary to law.

LAW AND DISCUSSION

General Damages

Mrs. Deligans asserts on appeal that the general damages awarded by the jury fail to adequately compensate her for her injuries. Additionally, she asserts that the amount of future medical expenses awarded by the jury was an abuse of its discretion. In reviewing the jury’s awards in this case, we are mindful of the instruction provided by our supreme court.

It is well-settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages. Louisiana Civil Code article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74.

Guillory v. Lee, 09-75, p. 14 (La.6/26/09), 16 So.3d 1104, 1116. The supreme court, in Guillory, went on to state:

Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review. Youn v. Maritime Overseas Corp., et al., 623 So.2d 1257, 1261 (La.1993), reh'g denied, 10/7/93.
The role of an appellate court in reviewing a general damages award, one 'which may not be fixed with pecuniary exactitude, is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. This court has long held true to the following principle:
[s[b]efore a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.
Wainwright, 00-0492, p. 6, 774 So.2d at 74 (quoting Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1977) (internal citations omitted)). See also Miller v. LAMMICO, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711 (stating that an appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion and citing Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993)); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993); Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Furthermore, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. (citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978) and Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985)). Moreover, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Perkins [v. Entergy Corp., 00-1372, p. 9 (La.3/23/01), 782 So.2d 606, 612] (citing Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221). Reasonable persons frequently disagree about the measure of damages in a particular ease. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn, 623 So.2d at 1261.
Special damages are those which have a “ready market value,” such that the amount of damages theoretically may be determined with relative certainty, including medical expenses and lost wages. Kaiser v. Hardin, 06-2092, p. 11 (La.4/11/07), 953 So.2d 802, 810 (per curiam) (citing McGee v. AC and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770). An appellate court, in reviewing a jury’s factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. Kaiser, 06-2092 at p. 11-12, 953 So.2d at 810 (citing Guillory v. Ins. Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029).

Guillory, 16 So.3d at 1117-18.

In considering the general damages awarded, we note that the jury verdict form provided an opportunity for the jury to render an award for the following general damages: past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, past disability, future disability, past loss of enjoyment of life, and future loss of enjoyment of life. Mrs. Deligans expressly states that she is not seeking relief on the lack of an award for past and future disability; accordingly, we will address the remaining awards to determine whether the jury abused its discretion in those awards.

In the present case, Mrs. Deligans was initially seen at the emergency room at Christus St. Frances Cabrini Hospital in Alexandria following the accident. Thereafter, in July of 2008, she sought treatment with Dr. Robert Rush, who diagnosed her with a TMJ exacerbation, cervical and lumbar strain, and left sacroiliac strain. Dr. Rush ordered physical therapy and referred Mrs. Deligans to Dr. Kurt Gau-thier, a dentist, for treatment of the TMJ. In August of 2008, Dr. Gauthier referred Mrs. Deligans to Dr. Wilton Guillory, III, a chiropractor. Mrs. Deligans continued to treat with these three health care providers through the end of 2010. The medical testimony indicates that Mrs. Deligans continued to complain of jaw pain, low back pain, shoulder pain, headaches, and neck pain, to various degrees, throughout the course of her treatment. In September of 2008, Dr. Rush added a diagnosis of myofascial pain syndrome. Due to continued complaints, Dr. Rush ordered a cervical and lumbar MRI in March of 2009. These | .¡studies documented mild herniation at C5-C6, bilateral foraminal stenosis at L4-L5 and L5-S1, which, according to Dr. Rush, were not caused by the subject accident, but were exacerbated by it. Throughout her treatment for TMJ, Mrs. Deligans also underwent splint therapy. Mrs. Deligans complaints of pain were described as “waxing and waning,” and, although she did not always express the exact same complaints of pain at each visit, she was “consistent” according to her doctors.

Mrs. Deligans was at all times being treated with different medications that were monitored and changed by her doctors during the course of her treatment for optimal results. Notably, her doctors acknowledged the “vicious cycle” Mrs. De-ligans was in and how that results in physical and psychological problems. They explained that despite the medications, she often remained in pain that disrupted her sleep which, in turn, caused her symptoms to worsen.

Mrs. Deligans’ testimony at trial as to the amount of pain she was experiencing and the nature of her symptoms was consistent with the medical evidence. She described the manner in which her injuries decreased the overall quality of her life with her husband and children. Mrs. Deli-gans described an inability to perform her usual household chores and her inability to enjoy activities with her family as she had customarily done. Instead, it was her testimony that due to pain, she often rested with a hearing pad on her back to ease the pain. Mrs. Deligans expressed feelings of stress and depression that impact her life. Particularly, she testified that she has concern for her future and that she continues to worry about her condition in the upcoming years.

The jury was also presented with medical evidence documenting Mrs. Deligans’ treatment for TMJ prior to the subject accident. Although she was not treating for TMJ at the time of the accident, and had not done so in years, her prior condition was significant enough to warrant treatment, including splint [^therapy. In 2003, Dr. Gauthier described it as a “permanent injury” such that it would “require splint therapy indefinitely to protect the joint.” At that time, Dr. Gauthier felt that “it [was] probable that [Mrs. Deligans] will have reoccurrences of her symptoms periodically. At those times, physical therapy and medication may also be necessary.”

Based upon the foregoing, Mrs. Deligans contends that the jury’s awards of general damages were unreasonably low. Although we agree that some of the jury’s awards are certainly on the low side, and, while this court, if sitting as the trier of fact, may have awarded Mrs. Deligans more than the jury did, this is not the standard of review on appeal. Rather, as outlined in detail above, we, as the appellate court, cannot re-weigh the evidence or superimpose our judgment on that of the jury even if we would have decided the case differently. In this case, the jury endeavored to render an award adequately compensating Mrs. Deligans for the injuries she sustained in the subject accident and had the duty of separating those damages from any suffering that she would have endured despite being involved in this accident. Considering the record and these principles of law, we find no abuse of discretion in the jury’s awards for future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, and past loss of enjoyment of life. However, we reach a different conclusion relative to the jury’s award for past physical pain and suffering and future loss of enjoyment of life.

Mrs. Deligans underwent significant medical treatment over a three-year period. Each of her doctors felt that she was sincere in her complaints, which were supported by objective findings. In Dr. Gauthier’s words, Mrs. Deligans has “been through a lot of discomfort” and “she’s paid for it quite a bit in—in pain, and—and the medications don’t take care of a hundred percent of it[.]” Considering her medical treatment, which amounted to $38,048.52, and the nature and duration of 17her treatment, specifically for the TMJ, we find the jury’s award of $9,000.00 for past physical pain and suffering to be an abuse of discretion.

Having found the jury award for past physical pain and suffering to be abusively low, this court can only increase the award “to the lowest amount which is reasonably within the court’s discretion.” Ryan v. Zurich Am. Ins. Co., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219. Looking to prior awards in comparable cases to determine that amount, we conclude that the lowest amount the jury could have awarded to Mrs. Deligans for past physical pain and suffering is $20,000.00.

In examining the jury verdict, we note that although the jury awarded Mrs. Deligans $6,000.00 for past loss of enjoyment of life, the award for future loss of enjoyment of life was only $1,200.00. The jurisprudence states that loss of enjoyment of life “refers to detrimental alterations of the person’s life or lifestyle or the person’s inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury.” McGee v. AC & S, Inc., 05-1036, p. 5 (La.7/10/06), 933 So.2d 770, 775. In this case, Mrs. Deli-gans, thirty-two years of age, testified that she is now unable to do “fun boy stuff” with her husband and children such as “skiing, and tubing, and fishing” at their camp. Mr. Deligans likewise testified that the family used to do a lot of outdoor activities which Mrs. Deligans does not participate in anymore. Instead of playing together in the evenings, Mrs. Deligans now sits with a heating pad because of the pain. Notably, because of her inactivity, Mrs. Deligans gained thirty pounds after the accident. Considering her medical condition, which was continuing through the time of trial and will continue into the future, we find the jury’s award of $1,200.00 for future loss of enjoyment of life to be an abuse of its discretion. Based upon the evidence |«in this case, and considering prior awards found within the jurisprudence, we increase the jury’s award for this element of damages to $5,000.00.

Special Damages

Mrs. Deligans asserts that the jury’s award of $1,500.00 for future medical expenses constitutes an abuse of discretion. She argues on appeal that “despite the fact that her doctors testified it was inevitable she would need continued treatment based on the magnitude of her injuries[,] the jury’s award of $1,500.00 in future medical expenses is inadequate.” We agree.

Future medical expenses are a component of special damages and must be proven by a preponderance of the evidence. Basco v. Liberty Mut. Ins. Co., 05-143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660. To recover future medical expenses, the plaintiff must present medical testimony to show that it is more probable than not that future medical treatment is indicated and the probable cost of the treatment. Id. Nevertheless, the supreme court has held that an award of future medical expenses can be made where the record establishes the need for future medical treatment and evidence of past medical expenses and other evidence allows the court to determine “a minimum amount that reasonable minds could not disagree will be required.” Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La.1992).

Melancon v. Lafayette Ins. Co., 05-762, pp. 9-10 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, 702-03, writs denied, 06-974, 06-1006 (La.6/16/06), 929 So.2d 1291, 1293.

In this case, the jury awarded Mrs. Deli-gans $38,043.52, which constituted the entirety of her past medical expenses. Thus, the jury obviously was convinced that her injuries required medical treatment and that they resulted in the incurrence of these medical expenses. However, the jury awarded Mrs. Deligans only $1,500.00 in future medical expenses. We find this award to be inconsistent with the medical evidence presented at trial.

lnThe testimony of Dr. Rush and Dr. Guillory as to Mrs. Deligans’ need for future medical treatment is unrefuted. Specifically, Dr. Rush testified that “more likely than not it would be inevitable.” He explained that “she’ll have future bills incurred with somebody because of her TMJ and her cervical and lumbar disc disease.” Likewise, Dr. Guillory testified that that Mrs. Deligans’ medical problems were going to be “ongoing.” Further, he was of the opinion that she is “Absolutely” going to continue experiencing medical problems which will need to be treated. Considering the nature and extent of her injuries, her prior medical treatment, and that it is more likely than not that Mrs. Deligans will require continued treatment in the future, we find the jury’s award of future medical expenses is manifestly erroneous. Based upon the record, we find that Mrs. Deligans met her burden of proving her entitlement to future medical expenses, and we amend the jury award to increase that element of damages from $1,500.00 to $7,500.00.

Answer to Appeal

In its Answer to Appeal, Ace American objects to two evidentiary rulings made by the trial court. It asserts that “the trial court was erroneous in sustaining [Plaintiffs’ objection to the introduction of Interrogatories answered by [P]laintiff which touched upon the credibility of the [P]laintiff.” Additionally, Ace American “assign[s] error in the trial court’s overruling of [its] objection to the testimony of [Dr. Guillory,] in the alleged sub-specialty of TMJ treatment by a chiropractor.”

Ace American argues that the trial court erred in not allowing the introduction of Mrs. Deligans’ interrogatory responses for the purpose of attacking her credibility. Specifically, Ace American included in its proffer interrogatory number fifteen, which requested disclosure of prior accidents and information on the dates thereof, the nature of any injuries sustained, and the health care providers | infrom whom treatment was sought. Mrs. Deli-gans’ response was that she “was in a motor vehicle accident approximately 15 years ago” for which she was treated by Dr. Rush. Ace American argues that “[t]his is clearly inaccurate as [Mrs. Deli-gans] was involved in an accident in 2003 and treated with [Dr. Gauthier], D.D.S. This was the same dentist who treated [Mrs. Deligans’] TMJ complaints for the subject accident.” It concludes, therefore, that “[t]his evidence was clearly admissible to attack [Mrs. Deligans’] credibility wherein she admitted on cross-examination suffering injuries on at least four prior occasions and being treated for those injuries.”

Louisiana Code of Evidence Article 103 provides the following:

A. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Ruling admitting evidence. When the ruling is one admitting evidence, a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection; or
(2) Ruling excluding evidence. When the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.
B. Record of ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.
C. Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or asking questions in the hearing of the jury.

In this case, during trial, Mrs. Deligans admitted the prior TMJ treatment that she had undergone in addition to that included in her discovery responses. She testified about the prior treatment and was subject to cross-examination before the Injury. For these reasons, we cannot say that “a substantial right” of Ace American was affected. Therefore, we find no merit to this assignment of error.

The second evidentiary ruling at issue relates to the testimony given by Dr. Guillory. During trial, counsel for Mrs. Deligans tendered “Dr. Guillory as an expert in the field of chiropractic [medicine], and specifically, the treatment of TMJ.” Counsel for Ace American objected on the grounds that Dr. Guillory testified that he had developed a protocol which has not been the subject of peer review. Additionally, outside of its utilization by Dr. Guillo-ry and another dentist, it had not been tested for validity, it had not been published, and it was not accepted generally by the scientific community. It was the trial court’s ruling that “because he has utilized TMJ as a specialty, [it would] allow his opinion in that area.”

In this case, Dr. Guillory testified about his treatment of Mrs. Deligans. That treatment included treatment of her TMJ. Dr. Guillory was clearly competent to testify as to what he documented about Mrs. Deligans complaints, his treatment thereof, and his opinion as to the need for her to continue to require treatment for her problems. We, therefore, find no merit in this assignment of error.

DECREE

For the reasons assigned, we amend the judgment to increase the award for past physical pain and suffering from $9,000.00 to $20,000.00, to increase the award for future loss of enjoyment of life from $1,200.00 to $5,000.00, and to increase the award for future medical expenses from $1,500.00 to $7,500.00. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to Ace American Insurance Company, Louisiana Coca-Cola Bottling Company, LLC, and Christopher Brown.

AFFIRMED AS AMENDED.

      . TMJ is an umbrella term covering acute or chronic inflammation of the temporomandib-ular joint which connects the mandible (jawbone) to the skull.

      . See Gordey v. Johnson, 04-1036 (La.App. 3 Cir. 12/8/04), 889 So.2d 399; Viviano v. Progressive Sec. Ins. Co., 05-125 (La.App. 3 Cir. 1/11/06), 920 So.2d 313, writ denied, 06-359 (La.4/28/06), 927 So.2d 290; and Vaughn v. Progressive Sec. Ins. Co., 03-1105 (La.App. 3 Cir. 3/2/05), 896 So.2d 1207.

      . See Vaughn, 896 So.2d 1207, and Augustine v. SAFECO Nat'l Ins. Co., 08-1515 (La.App. 3 Cir. 6/10/09), 18 So.3d 761.