author: MARION F. EDWARDS, Chief Judge.

text:
    Lawrence E. BROCK and Emma Brock v. Myron Ellis SINGLETON, A3M Vacuum Services, Inc., and Clarendon America Insurance Company.
    No. 10-CA-550.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Rehearing Denied May 16, 2011.

      Wayne W. Yuspeh, A Professional Law Corporation, Metairie, LA, for Plaintiffs/Appellees.
    Michael G. Durand, Richard J. Petre, Jr., Onebane Law Firm, Lafayette, LA, George Frederick Kelly, III, Attorney at Law, New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Chief Judge.

|2P efendants/app ellants, Myron Ellis Singleton, A3M Vacuum Services Inc. and Clarendon America Insurance Company (Clarendon), appeal a judgment in favor of plaintiffs/appellees, Lawrence E. Brock (Mr. Brock) and Emma Brock (Mrs. Brock), in the amount of $1,236,419.70.

On September 7, 2005, Mr. Brock was a truck driver for B & G Crane Service when he was struck in the rear by another truck, owned by A3M and driven by Mr. Singleton.

Mr. Brock alleged damages to his neck and back that ultimately required treatment and disabled him from further employment as a truck driver. At the trial on the matter, liability was not contested. Rather, at issue was medical causation, the extent of any injuries suffered, and damages.

Mr. Brock testified that he went through the ninth grade in school and then began working. From the age of fifteen or sixteen, he has always been employed as a laborer. While working for another employer in 1989, he was involved in an 1 .¡accident which caused injuries. He was injured for two or three years but got better and ultimately obtained a job driving eighteen wheelers. He worked for several employers doing similar work, beginning his employment with B & G in 1999.

At the time of the accident, Mr. Brock and his family had been rescued from New Orleans following Hurricane Katrina. Living with him at the time were his wife, daughters, five grandchildren, and several others, for a total of thirteen persons for whom he was the sole support. After being evacuated to the Superdome, the family was moved to Baton Rouge and then to Lafayette. He had been back working for about a week before the present accident.

On the day of the accident, at about 7 a.m., he was in his truck on the way to a delivery when another eighteen wheeler rear-ended his vehicle. He hit his head on the back glass, and the impact knocked him “silly” at that time and for the moment he did not know where he was. When he exited the truck he was in a daze and did not recall talking to the other driver. He reported the accident to B & G.

He was not in pain prior to the accident. Immediately after the incident, at first he did not feel anything and continued with his chores, including delivering a load, but later, at around 1 p.m., he began to feel pain and stiffness in his neck. He worked through it. When he got home, he went to Summit Hospital. Summit Hospital records submitted into evidence indicate that, on the night of the accident, Mr. Brock complained of neck pain with a pain level of five, as well as headache and back pain.

He was given muscle relaxers, but he could only take them after he got off of work because he could not drive while on medication. He returned to work the next day, and worked constantly, through pain, until he could go no longer, because his family had nowhere to go and he was trying to find a place for them to live. It was hectic finding doctors at that time in Baton Rouge; Mr. Brock saw Dr. LCherry about thirty or thirty-five times. Dr. Cherry sent him for therapy for his neck and back, but he felt worse so was sent to Dr. Johnston, who treated him for some months. Mr. Brock underwent several tests, some of which were quite painful. After Dr. Johnston, Mr. Brock went to Dr. White, who gave him cervical injections. Then he treated with Dr. Kenneth Vogel, who was his physician at the time of trial. Dr. Vogel performed surgery on a leaking disc.

After the surgery, Mr. Brock felt he could return to work, but when he did so, he experienced discomfort and returned to Dr. Vogel. Dr. Vogel suggested another surgery, which Mr. Brock plans on having so that he can go back to work. He does things around the house, such as cut grass, even though they cause pain, because he cannot afford to pay for someone to do them. Prior to the accident he was happy, but since the accident he and his wife have been arguing, and suffered a loss in their sexual relationship. He wants to go back to being a truck driver. Today, he still wears a back corset and takes medication for pain. He left B & G because he could no longer stand the pain. Dr. Johnston had restricted him to light-duty work, but B & G does not have light duty.

On cross-examination, Mr. Brock stated that he was told at the emergency room to see his doctor in two or three days, but he did not do so. He did not report that he was in pain to B & G because he could not afford to take time off. His supervisor, Barry Lindy, knew he had been hurt. Mr. Brock’s duties included coupling and uncoupling trailers, tying equipment with chains, etc. The first time he saw a doctor was November 11, 2005 at which time his attorney made an appointment for him. Mr. Brock admitted that, when he had to take a medical exam for his driver’s license, he lied about being in pain and about his medical history because he needed to work. He would lie in order to keep his job, but he would not lie to get insurance money from the court if he was not hurt.

| sMr. Brock testified that he has trouble reading the newspaper and other documents. For Dr. White, whom he saw in September of 2006, Mr. Brock’s wife filled out the medical history form from answers he gave her. The form indicated he experienced pain in his leg, shoulder, fingers, back, foot, toes, head, arm, and hand. On the form it was mistakenly checked that he had experienced the pain for thirteen to twenty-four months before the visit. Although he sometimes uses a cane of his own volition, he checked that his pain did not require him to do so. Mr. Brock visited Ochsner for blood pressure medication, but he could not recall if he related his back and neck problems to the physician there.

Mr. Brock attended six of his scheduled therapy treatments because he experienced pain, and one of the physicians at therapy told him he should not return until he saw Dr. Vogel. He also had problems with transportation to therapy. Mr. Brock testified that he has done things like change flat tires and pick up suitcases and grocery bags, but he “paid for it” after-wards, even though he had worn his corset and taken pain pills.

Mr. Brock had a lawsuit in Florida seeking compensation as a result of injuries to his back in 1989. He had an exam prior to being employed at Simco in 1995, at which time Mr. Brock testified he was pain free. In his history, Mr. Brock had auto accidents in 2002 and 2003, resulting in treatment for soft tissue injuries, which symptoms resolved.

Mrs. Brock testified that her husband had been happy and in good health prior to the accident, although he had trouble with his back after his accident in Florida. However, as time went on he had no more problems. After the 1989 accident, Mr. Brock did not work until 1994. Mr. Brock loved driving his truck, and was a hard worker but, since the accident in question, he became depressed, and they have no sex life. He does help out around the house with cutting grass Rand washing dishes, but he is jumpy, grouchy, and easily aggravated. They are not happy anymore. She herself is depressed and their marriage is bad; her world has been turned upside down. She is afraid they will not be able to pay their bills. Mr. Brock prays and she reads the Bible to him. On cross-examination, Mrs. Brock remembered other auto accidents in which her husband had been involved. On the night of the accident in question he told her he was having the worst back pain ever. However, he continued to work full time. She has seen Mr. Brock fall on more than one occasion.

Bobby S. Roberts testified as an expert in vocational rehabilitation. He testified that Mr. Brock’s line of work is considered medium semi-skilled, with characteristics of heavy labor. After performing a number of tests, Mr. Roberts opined that Mr. Brock is considered functionally illiterate, scoring in the seventh percentile in his achievement tests, although he had good abstract problem solving skills. He was less than 50 percent of where he needed to be to meet the standards for competitive work; his sitting tolerance had to be increased by 83.4 percent; and his standing tolerance must increase by 87.5 percent. Mr. Roberts made several recommendations: Mr. Brock should be referred to a clinical psychologist for evaluation of depression and anxiety and to an educational specialist to determine if he has a learning disability and to help him develop compensatory skills. Mr. Brock should also be reevaluated by Dr. Vogel to diagnose bilateral weakness in his upper extremities and radicular symptoms in both legs. Structured physical therapy was also recommended. Mr. Brock cannot return to medium to heavy work, and there is only a 10 percent chance he will be able to perform light work because of his education.

According to Mr. Roberts, Mr. Brock was cooperative in his evaluation and displayed no inconsistencies. Defendant’s expert Mr. Hegwood had recommended 17that Mr. Brock could be a dispatcher, but there are at least forty-seven different types of dispatchers requiring varying levels of training and different requirements for dealing with data. They require different reasoning levels. Mr. Brock did not meet the criteria for any of them. Mr. Hegwood’s recommendation of a job as exterminator is considered heavy labor. As an order filler, the light version of that job requires educational skills higher than those possessed by Mr. Brock. A shipping and receiving clerk is classified as medium, and can be heavy, requiring higher academic requirements.

Dr. Vogel testified that he saw Mr. Brock in May 2007 for cervical and right shoulder pain, as well as low back and bilateral leg pain. There had been two motor vehicle accidents prior to the one in question but the pain from those had resolved completely. Dr. Vogel reviewed the records from all of the previous physicians. Tests revealed herniated lumbar discs at L3^4 and 4-5. An IDET annuloplasty to repair the tear in the discs was performed. Following surgery, Mr. Brock progressed satisfactorily at first and began therapy. Then he began to have pain and difficulty lifting, pushing, and pulling, at which time Dr. Vogel told him to avoid those activities. Two months after surgery, he had back pain riding in vehicles and in April 2007, also began experiencing bilateral leg pain and numbness. His condition had deteriorated. Tests revealed the IDET had not satisfactorily repaired the disc. There was now bilateral L-4 neuropathy. The objective tests correlated with Mr. Brock’s complaints. It is more probable than not that Mr. Brock will be required to undergo a laminectomy and reprogramming of the nerves to remove the herniation. Mr. Brock is disabled from his work. If Mr. Brock was symptom free from 2002 to the date of the accident, any injury he received prior to 2005 could be considered as resolved.

|sOn cross, Dr. Vogel testified that the initial information given him by Mr. Brock included only the report of a 1978 accident. That entry was later changed to “1988” and the accident of 2002 was added on the report, although Mr. Brock had not told him about that originally. Dr. Vogel agreed that the history given by Mr. Brock was inaccurate. The history given by the patient is one of the factors that must be considered, because most people are not very good historians and when they have had a number of injuries, they cannot remember the details such as when the injuries happened. Any additional information, such as the 2002 accident and the medical report that pain had resolved, is taken into account. Utilizing medical probability, and taking into account the patient’s history, his neurologic examination, X-rays, MRI’s, and past medical record, Dr. Vogel opined that Mr. Brock’s signs and symptomology were causally related to the September 7, 2005 accident. There is no question that Mr. Brock has L-á neuropathy, that he has pain reproduction of his discogram, and that his neu-rologic examination suggests a real problem. There is no way of knowing whether the fact that Mr. Brock continued to work for a year as a truck driver and heavy manual laborer would have helped or harmed his condition.

John Emery, Jr. is a shop steward and truck driver with B & G who worked with Mr. Brock. He witnessed the accident in question. He assisted Mr. Brock in filling out the company accident report and told him to report his injury. Mr. Brock complained of a stiff neck later that same evening, stating that he had hit his head on the back of the glass and his neck hit the dash. Prior to the accident, he had not complained of his back or neck, but afterwards, he did mention that he had started to take injections for back pain, and he often complained about pain in his back and leg. He observed Mr. Brock exiting the truck and having difficulty Instanding up. The loads are tied down by ratchet binders and chains and are unloaded by cranes.

Fred Hollingsworth is the risk manager for B & G. B & G had an accident report filled out by Mr. Brock regarding the accident. Mr. Hollingsworth testified that Mr. Brock initially reported he was not hurt. Mr. Hollingsworth was not aware of any injuries to Mr. Brock until he was later notified the company was being sued for workers’ compensation benefits. Mr. Brock did not miss any work and did not complain of injury. Mr. Hollingsworth did not observe Mr. Brock having any difficulty with his job. To his knowledge, Mr. Brock’s truck was not damaged and no repairs were made to it. However, he had not examined the trailer before the accident.

Randy Rice was accepted as an expert in economics. He testified that, using the wages being earned at the time Mr. Brock stopped working, past and future lost wages amount to $463,688; with a credit for minimum wages that could be earned, the amount is $365,240. Including future loss of fringe benefits of $48,069, which is the total value of the health insurance previously paid by his employer, lost wages and benefits equal $511,757, or $413,309 with the above-mentioned credit.

Myron Singleton, driver of the truck owned by A3M that struck Mr. Brock, testified that the impact was “a light hit.” After the accident, Mr. Brock stated that he was all right.

Scott Falgoust, manager of A3M, testified that the damage to Mr. Singleton’s truck was to the radiator, the cab, and the turbo; the fender was not damaged.

Dudley Williams, safety director at B & G, spoke with Mr. Brock the day after the accident, and he was told that Mr. Brock did not need medical attention. Mr. Brock continued to work afterward, and there was no change in his duties. 110Although he did not have regular contact with Mr. Brock, Mr. Brock had always been honest with him.

Barney Hegwood, qualified by the court as vocational rehabilitation counselor, was not able to evaluate Mr. Brock. However, he prepared a report based on a review of documents including medical reports and tax documents. It is preferable, but not necessary, to meet a plaintiff to determine disability. Mr. Hegwood reviewed Mr. Brock’s educational and employment information, along with his prior medical history; he was not able to test Mr. Brock. He would rely on a doctor for functional limitations, rather than the testing done by Mr. Roberts. Mr. Hegwood did not see any medical opinions on manual dexterity, alignment and driving, or other tests performed by Mr. Roberts. However, such tests are not necessary in the types of alternative jobs found. Mr. Hegwood did consider the limitations imposed by Dr. Vogel. According to Mr. Hegwood, Mr. Roberts is not licensed to perform a trans-ferrable skills analysis. Some of the items to consider in transferable skills analysis are aptitudes, physical demands, and temperaments. Considering his present injury, education, work history, functional limitations, etc., Mr. Brock could be a parking lot attendant, order filler, meter reader, groundskeeper, exterminator small sales route driver, dispatcher, or a shipping and receiving clerk. These occupations did not have greater demands than the work previously performed by Mr. Brock. Mr. Hegwood did not do a labor market survey. However, he testified as to the median wages of the suggested jobs.

Deputy Sammy Robertson, who investigated the accident, stated that there were no reported injuries at the scene of the accident.

Walter Delphin, a private investigator, testified that he surveilled Mr. Brock in June of 2006 and March of 2007. The court allowed DVD’s of his surveillance Ininto evidence. Mr. Delphin filmed several minutes of activity by Mr. Brock, walking around, bending over once.

Natasha Strickland, another private investigator, also followed and filmed Mr. Brock driving to New Orleans, going to eat, to Ochsner, and Walgreens. She observed him carrying grocery bags and suitcases. On another occasion, he was seen sweeping outside of his church, bending over at the waist.

The deposition of Dr. Henry Eiserloh, an orthopedic surgeon, was admitted into evidence. Dr. Eiserloh examined Mr. Brock on August 24, 2007. In the patient history, Mr. Brock denied previous neck or back problems, although he later told the physician he had had pain from an accident in the '70’s that had been treated. He did not give a history of any other accidents. During the physical exam, Dr. Eiserloh did not detect any spasms but, rather, indicated that there were “non-organic” findings that could not be substantiated by a specific objective finding. According to the physician, Mr. Brock exhibited exaggerated pain response. Dr. Eiserloh had not determined whether Mr. Brock had taken any medication prior to his visit. Dr. Eiserloh felt the MRI did not reveal any significant compressive lesion on any neurologic structure; the dis-cogram revealed a pathologic disc at L4-5 and, thus, a surgical candidate. However, based on the non-organic findings, he was at an increased risk for a poor outcome. The low level of vibration from driving a truck irritates the symptomatic discs, so Mr. Brock should not go back to being a truck driver. It was appropriate to say that if Mr. Brock was asymptomatic and not complaining of pain prior to the accident, he had not been disabled before the accident. Based on his history, it is more probable than not that the 2005 accident caused the symptomology to manifest.

Following the trial, the court awarded damages in the following amounts:

hgDamages Lawrence Brock
Past lost wages and future loss of wages, fringe benefits, at present value $414,708.00
Pain and suffering 300,000.00
Mental Anguish 130,000.00
Permanent disability and injury 100,000.00
Loss of enjoyment of life 60,000.00
Loss of consortium 30,000.00
Past and future medical expenses 189,711.75 Past 89,211.75 Future 100,500.00
Damages
Emma Brock
Loss of consortium 12,000.00

On appeal, Clarendon argues several specifications of error. The first issue presented is that the trial court erred in awarding Mr. Brock damages for loss of consortium when such an award is not allowed under Louisiana law.

Loss of consortium, loss of services and society are elements of damages that occurs to the relation of a party who suffers an injury under La.C.C. art. 2315. C.C. art. 2315 states that these damages are “recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.” C.C. art. 2315.2 provides the cause of action for wrongful death to the spouse and/or children or father and/or mother or brother(s) and/or sister(s). It is due to family members of the injured party, not to the injured party, who has his/her own other elements of damages that are recoverable. Loss of consortium is a secondary layer of tort liability and derivative from the injury to the primary victim. See: Shepard v. State Farm Mutual Auto. Ins. Co., 545 So.2d 624, 629 (La.App. 4th Cir.), writ denied, 550 So.2d 627, 628 (La.1989)...

Mr. Brock contends that he proved interference with the sexual, social, and services aspect of his relationship with his spouse, and that such damages, although usually awarded as an undesignated part of general damages, were simply noted separately in this case. Although this may have been the intention of the trial court, it was granted as a separate item of damages, and we agree that loss of consortium is unavailable to Mr. Brock. This portion of the judgment must be reversed.

haNext, Clarendon argues error in the credibility determination made by the trial court in favor of Mr. Brock. Clarendon contends that the trial court erred in completely accepting Dr. Vogel’s conclusions as to causation, disability, and damages, without considering Mr. Brock’s previous untruthful statements. Further, it is urged that the court erred in failing to consider as an adverse presumption the fact that Mr. Brock did call his other treating physicians, and in not considering Dr. Vogel’s refusal to answer direct questions about information contained in medical records which he claimed to review, but could not recall, while excluding those medical records.

Factual determinations are subject to review for manifest error.... In such a review, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.... If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous.... Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact.... Indeed, where the factfin-der’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous ....

In the present case, the trial court noted in its Reasons for Judgment that Dr. Vo-gel admitted Mr. Brock may not have been entirely truthful when it came to disclosing a full medical history. The court further stated:

In the chronology of the accident, Brock returned to work the [sic] after the accident.... His drive to keep his employment and remain the breadwinner in his family would re-surface occasionally when he would shield complaints of pain or the nature of his condition from doctors, company personnel, or officials. However, he maintained that he was truthful throughout his testimony in the courtroom.
| uMr. Brock has not attained a high education level and comports himself to such a station in life. He does not have a perfect memory. He has a distinct degree of difficulty reading. He has satisfied the court that he is a credible person....

The thrust of Clarendon’s argument on credibility relates to Mr. Brock’s failure to disclose all of his automobile accidents over the years to all of his physicians and his statements to B & G that he was not in pain. Although the trial court did not further explain its decision on this credibility issue, our reading of the record allows the conclusion that Mr. Brock did not deliberately make misstatements or omit information for the purpose of litigation or to obtain money, except for his guilelessly candid admission that he previously denied pain because he needed to work to support his family. Although he did lie in order to keep his job, we do not find that such impugns the entirety of his testimony. Rather, we are presented with a picture of a plaintiff who worked until he no longer was able to do so, and, as the trial court found, had a strong work ethic. Further, the medical evidence, including objective medical tests, corroborates his testimony and version of events.

Contrary to Clarendon’s assertions, the trial court clearly considered all of the medical evidence placed into evidence. In the Reasons for Judgment, the court specifically recognized that Mr. Brock had suffered previous injuries, stating that it came to know Mr. Brock’s medical history, including the 1989, 2002, and 2003 automobile accidents. The court discussed the early medical assessment notes made a few hours after the injury and referred to the lengthy history of medical evaluation and treatment, noting that Clarendon had not objected to any of the extensive medical documentation. The medical records of treating physicians Dr. Cherry and Dr. Johnston were specifically considered. The court concluded the testimony and medical records supported its finding that the accident caused Mr. |1F,Brock’s injury and damages. Clarendon complains that the trial court refused to admit certain records which involved treatment of Mr. Brock’s injuries suffered in earlier accidents, with the indication that Dr. Vogel’s testimony cannot be evaluated properly in their absence. Clarendon concludes that the medical history given to Dr. Vogel, and his refusal to comment on the medical reports of certain other physicians, combined to render his testimony, as a whole, suspect and not credible.

Prior to his testimony, Dr. Vogel reviewed the records of certain physicians who treated Mr. Brock in 1990, 1992, and 2002. We find nothing suspicious in his refusal to comment on the accuracy of the other physicians’ reports. After considering the earlier accidents and treatments, Dr. Vogel reiterated his opinion that, since Mr. Brock was symptom free prior to the accident, any injury from those earlier accidents could be considered as resolved and that Mr. Brock’s problems were causally related to the 2005 accident at issue. The diagnosis and opinion of the treating physician are entitled to more weight and more probative value than those of doctors examining plaintiff for consultation for litigation purposes only. The facts on which Dr. Vogel’s opinion were based were substantiated in the record.

A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there 11fito be a reasonable possibility of causal connection between the accident and the disabling condition.

While the records of earlier accidents and treatment may indicate that Mr. Brock’s back and neck were not in perfect health, it does not mean that they were not in “good health” for purposes of Housley, He had been asymptomatic at least three years prior to the accident and had been able to perform all of his work duties without pain. Even Dr. Eiserloh testified that Mr. Brock was asymptomatic and not complaining of pain prior to the accident, he had not been disabled, and it was more probable than not that the 2005 accident caused the symptomology to manifest. There is nothing in the record to east suspicion on Mr. Brock’s condition in the several years prior to the accident. Mr. Brock was discharged from the care of Dr. Ott, who treated him for the 2002 accident, in November 2002, with a resolution of symptoms and without pain. He was working steadily and without apparent limitations until the accident at issue. Mrs. Brock testified that her husband had been in good health.

Clarendon argues an adverse presumption should have been invoked against Mr. Brock for failing to call Dr. Weitz, who administered a cervical epidural injection; Dr. Burdine, who administered a diseogram; and Dr. Johnston, a treating physician. The records of all these physicians were entered into evidence without objection. Clarendon is not entitled to any such presumption.

In summary, there was sufficient evidence in the record for the trial court to conclude that Mr. Brock satisfied the Housley presumption and that the accident in question caused Mr. Brock’s injuries and subsequent disability.

|i7CIarendon next contends the trial court erred in failing to grant a directed verdict when the evidence presented by Mr. Brock disclosed no legal or factual basis for the claims to proceed. A motion for involuntary dismissal is the proper procedural vehicle in cases where the action is not tried before a jury. In such motion, after the plaintiff has completed the presentation of his evidence, any party may move for a dismissal of the action as to him on the ground that, upon the facts and law, the plaintiff has shown no right to relief. La. C.C.P. art. 1672. The trial court has much discretion in determining whether to grant a motion for involuntary dismissal. An appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. In determining whether an involuntary dismissal should be granted after the plaintiff has completed the presentation of his evidence during a bench trial, the appropriate standard is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. The issue to be resolved is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. The court here considered the medical evidence presented by Mr. Brock and found that such could support his case.

Considering the testimony and evidence presented by Mr. Brock in his case-in chief, we find no error in the denial of the motion by the trial court as he provided sufficient evidence in his case-in-chief to establish his claim.

Next, Clarendon contends that the court erred in excluding the testimony of its economic expert, Dr. Kenneth Bou-dreaux, because he was listed as a witness | )8three days after the deadline of the trial court’s trial order, although plaintiffs did not designate its experts until after the deadline. Mr. Brock filed a motion to strike the testimony of Dr. Boudreaux because the witness designation was filed late and because it did not receive his report until a few days before trial. The minute entry in the record indicates that the court denied Mr. Brock’s motion to strike Dr. Boudreaux’s testimony, and the transcript confirms that the court was “not inclined” to grant the motion to strike. Although the transcript indicates some confusion among the attorneys and perhaps even the trial court as to the status of the motion, we cannot find error in a ruling which is not part of the record.

Clarendon urges that the trial courts award of $620,000 in general damages was an abuse of discretion, because Mr. Brock had prior neck and back injuries, once again arguing that Mr. Brock’s credibility was untrustworthy. Discounting the award for loss of consortium, which we reversed hereinabove, the general damage award comes to $590,000, which the trial court categorized as separate ele-merits of pain and suffering, mental anguish, permanent disability and injury, and loss of enjoyment of life.

The standard for appellate review of general damages has been stated by the Louisiana Supreme Court as:
General damages are those which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms.” ... Vast discretion is accorded the trier of fact in fixing general damage awards.... This vast discretion is such that an appellate court should rarely disturb an award of general damages.... Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact....
... Reasonable persons frequently disagree about the measure of general damages in a particular case. 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 decrease the award.
JiS- • •
The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages.... Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. ...

In the present case, although Mr. Brock had suffered previous injuries to his back and neck, he was able to maintain a viable career as a truck driver prior to the accident in question, and he was the sole support of thirteen family members. Throughout his testimony, he exhibited concern about the support and welfare of his family absent his income. He had been able to enjoy a happy life, but today, he is unhappy, depressed, and argues with his wife with whom he has suffered a diminished sexual relationship. He must wear a corset and take medication for pain, and he will have to undergo major surgery on his back. He will never be able to return to his previous employment, which he loved. With regard to lost wages, Clarendon has not briefed its assignment of error regarding that portion of damages, and so it is considered abandoned.

Based on our review of the evidence contained in the record, while the damage awards in this case may be on the high side, they are not so high as to constitute an abuse of the trial court’s vast discretion. Given the particular injuries and their effects under the particular circumstances on the plaintiffs, the trial court’s damage awards are not beyond that which a reasonable trier of fact could assess.

Finally, Clarendon urges that the judgment against it must be in accordance with the policy terms and limits. No error was assigned concerning this issue and, thus, there is nothing for us to review.

_|_2gFor the foregoing reasons, that portion of the judgment granting damages for Mr. Brock’s loss of consortium is reversed. In all other respects, the judgment is affirmed.

REVERSED IN PART; AFFIRMED AND AMENDED

      . Yoes v. Shell Oil Co., 95-12 (La.App. 5 Cir. 5/10/95), 657 So.2d 241, 247, writ denied, 97-2087 (La. 11/17/95), 663 So.2d 714 (emphasis as found in the original).

      . Tietjen v. City of Shreveport, 09-2116 (La.5/11/10), 36 So.3d 192, 197-98 (citations omitted).

      . Boxie v. Smith-Ruffin, 07-264 (La.App. 5 Cir. 2/6/08), 979 So.2d 539 (citing Jaeckle v. Dresser Indus., 457 So.2d 646 (La. 1984)).

      . Housley v. Cerise, 579 So.2d 973 (La. 1991); LeBlanc v. Allstate Ins. Co., 00-1128 (La.App. 5 Cir. 11/28/00), 772 So.2d 400; Edwards v. LCR-M Corp., Inc., 41,125 (La.App. 2 Cir. 7/12/06), 936 So.2d 233.

      . See, e.g., Layssard v. State, Dep't of Pub. Safety and Corr., 07-78 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, writ denied, 07-1821 (La. 11/9/07), 967 So.2d 511; Poland v. State Farm Mut. Auto. Ins. Co., 03-1417 (La.App. 1 Cir. 6/25/03), 885 So.2d 1144.

      . Perkins v. Carter, 09-673 (La.App. 5 Cir. 12/29/09), 30 So.3d 862.

      . Id.

        .Id.

      . Arbon v. Charbonnet, 99-852 (La.App. 5 Cir. 1/25/00), 761 So.2d 20, writ denied, 00-0603 (La.4/20/00) 760 So.2d 348.

      . Dufrene v. Gautreau Family, LLC, 07-467 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, 81, writ denied, 08-0629 (La.5/9/08) 980 So.2d 694, and writ denied, 08-0628 (La.5/9/08) 980 So.2d 698 (citing Duncan v. Kansas City S. Ry. Co., 00-0066 (La. 10/30/00), 773 So.2d 670) (citations omitted).


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital v. K & W DINERS, LLC d/b/a Fat Hen Grill.
    No. 10-CA-767.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2011.

      Robert G. Stassi, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellee.
    E. John Litchfield, Michael J. Marsiglia, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this workers’ compensation case, the plaintiff/appellee, East Jefferson General Hospital (East Jefferson) seeks recovery from K & W Diners, LLC for medical services rendered to an employee of the Fat Hen Grill. K & W Diners, LLC failed to answer the petition and a default judgment was entered against them. They moved to annul the judgment. The motion was denied. K & W Diners, LLC timely appeals and contends that the Office of Workers’ Compensation (OWC) erred in denying the motion to annul. For the reasons that follow, the judgment denying the motion to annul is reversed.

Facts and Procedural History

This case arises from a workers’ compensation claim wherein the plaintiff/appel-lee, East Jefferson, rendered medical services on April 25, 2009, to Ms. Kathryn Corpora for injuries she sustained during the course and scope of her employment at the Fat Hen Grill — which operated as a restaurant located at 5108 Citrus Boulevard in Harahan, LA. The evidence indicates that the diner’s owner, Mr. Shane Pritchett, accompanied Ms. Corpora to the hospital. He informed the hospital that Fat Hen Grill was Ms. Corpora’s employer and the entity responsible for her treatment. It was later discovered that Fat Hen Grill did not have workers’ compensation insurance and $1,828.85 of the medical bill remained unpaid.

|3East Jefferson filed a 1008 Disputed Claim for Compensation (1008 compensation claim) with the OWC on October 19, 2009, against “K & W Diners, LLC d/b/a Fat Hen Grill.” The disputed claim form was sent by certified mailed to Fat Hen Grill’s address on Citrus Blvd. The OWC received the return receipt acknowledging that service was made at the Citrus Blvd. address. Because “K & W Diners, LLC d/b/a Fat Hen Grill” failed to answer the claim, East Jefferson filed a Motion and Order for Preliminary Default which was entered and later confirmed on January 15, 2010. The judgment awarded East Jefferson $6,728.35, which included $1,828.35, the amount originally sued for, minus $600.00 Julie Pritchett paid after the litigation commenced. It also included $2,000 in penalties and $3,500 in attorneys’ fees.

After the confirmation, East Jefferson filed a Motion and Order to Enforce Judgment with the OWC to transfer the judgment to the 24th Judicial District Court to make it executory. After the motion was granted, K & W Diners, LLC was served with the petition to make the judgment executory. Thereafter, K & W Diners, LLC filed a petition to annul the OWC judgment with the Office of Workers’ Compensation. In its petition to annul, K & W Diners, LLC alleged that it was never cited to appear in the action East Jefferson filed; it was unaware of the proceedings until its registered agent, Mr. E. John Litchfield, was served with the petition to make the judgment executory; and it never conducted business under the name Fat Hen Grill. It further alleged in its petition that, pursuant to an oral lease, it sublet the property located at 5708 Citrus to Royal Citrus, LLC, whose sole member, Mr. Pritchett, owned and operated the Fat Hen Grill. East Jefferson answered the petition and filed a third-party-demand against Mr. Pritchett and Royal Citrus. East Jefferson, however, later dismissed that third-party demand.

14At the hearing on the motion to annul, both parties conceded that K & W Diners, LLC and Royal Citrus were two separate and distinct entities. K & W Diners, LLC admitted that it registered the service mark “Fat Hen Grill” on May 12, 2009— seventeen days after Ms. Corpora was injured at work — but never conducted business under that name. K & W Diners, LLC stated, however, that it registered the service name as a favor to Royal Citrus/Mr. Pritchett. At the conclusion of the hearing, the court denied the motion to annul. K & W Diners, LLC appeals.

Assignments of Error

K & W Diners, LLC assigns the following errors:

1. The OWC erred in denying the motion to annul because K & W Diners, LLC was never served with the petition and because it did not own, operate, or employ anyone at Fat Hen Grill; and
2. The OWC erred in denying the motion because neither Royal Citrus nor Mr. Pritchett were K & W Diners, LLC’s mandataries.

Discussion

Service of the Petition

In its first assignment of error, K & W Diners, LLC contends that the default judgment should be annulled because the 1008 compensation claim was not served on its registered agent for service of process. In ordinary civil actions, La. C.C.P. art. 1266(A) provides that service of citation or other process on a domestic or foreign limited liability company is made by personal service on any one of its agents for service of process. In workers’ compensation cases, however, service may be made by certified mail. La. R.S. 23:1310.3(B), which governs workers’ compensation claims, provides, “upon receipt of the form, a district office shall Reflect service of process on any named defendant in any manner provided by law or by certified mail.”

This Court must decide whether service was proper when the OWC sent the 1008 compensation claim by certified mail to “K & W Diners, LLC d/b/a Fat Hen Grill” at 5708 Citrus Blvd. pursuant to La. R.S. 23:1310.3(B) or whether service should have been made pursuant to La. C.C.P. art. 1266(A).

In determining whether service was proper, K & W Diners, LLC urges this Court to follow Lee v. Winn-Dixie of Louisiana, Inc. 593 So.2d 961 (La.App. 4 Cir. 1992). In that case, the 1008 compensation claim was sent by certified mail to Winn-Dixie. When Winn-Dixie failed to answer, a default judgment was entered against it. Winn-Dixie moved to annul the judgment on the ground that the petition was not served on its registered agent for service of process.

On January 30, 1992, when Lee was decided, former La. R.S. 23:1310.3(A)(2) provided “upon receipt of the petition, the director shall assign the matter to a hearing officer and shall send copies of the petition by certified mail to the named defendants.” (emphasis added). At that time, the version of the statute in effect provided for only one means of service— certified mail to the named defendants. Lee argued that La. R.S. 23:1310.3(A)(2) applied and not La. C.C.P. art. 1266 which required that service upon a corporation be made on its registered agent. The fourth circuit disagreed, however, and held that because Winn-Dixie’s registered agent was not served with process, the preliminary default was an absolute nullity-

East Jefferson contends, on the other hand, that Lee is not controlling and urges this Court to follow Losabia v. Cypress Hosp., 619 So.2d 151 (La.App. 3 Cir.1993). There, the 1008 compensation claim was sent by certified mail to | r,Cypress Hospital. When Cypress Hospital failed to answer, a default judgment was entered against it. Cypress Hospital moved to vacate the judgment, arguing insufficient notice, in that, the claim should have been directed to Louisiana Psychiatric Company, Inc. which did business under the name Cypress Hospital. In that case, the third circuit applied La. R.S. 23:1310.3(B) and found that service by certified mail was proper.

When Losabia was decided, the version of the governing workers’ compensation statute in effect was different than the version in effect at the time Lee was decided. Former La. R.S. 23:1310.3(A)(2) was amended on July 23, 1991 by Act 892 and provided:

upon receipt of the form, the director shall assign the matter to a hearing officer and shall send copies of the form by certified mail to the named defendants to effect service. The director may also effect service of process on any named defendant in any other manner provided by law. (emphasis added).

The revision stated that service shall be made by certified mail and may be made in any other manner provided by law. The third circuit in Losabia interpreted the revision to mean that the statute “gave the director the option to effect service of process in accordance with the Code of Civil Procedure, but that it did not require the director to comply with the Code.” Andre v. Constr. Material Shop, 93-1212, p. 7 (La.App. 1 Cir. 3/11/94), 633 So.2d 1313, 1317.

Though the third circuit in Losabia also considered La. C.C.P. art. 1266(A), the court stated that the workers’ compensation statutory framework was a specific body of written law that superseded the Code of Civil Procedure provision for service of process on employer defendants. Losabia, supra, at 153. It, therefore, applied La. R.S. 23:1310.3(B) and found that service by certified mail was proper.

The first circuit in Andre compared both Lee and Losabia to resolve the issue presently before this Court. Andre analyzed both cases, noting the 17differences between the statutes. The first circuit in Andre, however, relied on the rules of statutory construction to resolve the issue of proper service of the 1008 compensation claim. In considering La. C.C.P. art. 1266(A) and former La. R.S. 23.1310.3(A)(2), Andre noted, “it is a generally recognized rule of statutory construction that when two statutes applicable to the same subject appear to be in conflict, the statute that is more specifically directed to the matter at issue must prevail, as an exception to the statute that is more general.” Andre, supra, at 1318. Therefore, the more specific statute which merely requires that the hearing officer send copies of the petition by certified mail to the named defendants controls over the more general statute. Id.

Turning to the present case, former La. R.S. 23:1310.3(A)(2) was amended on July 7, 1992 by Act 760 which now provides:

Upon receipt of the form, the director shall assign the matter to a hearing officer and shall send copies of the form by certified mail to the named defendants to effect service. The director may also effect service of process on any named defendant in any other manner provided by law. La. R.S. 23:1310.3(B).

This statute was in effect when East Jefferson filed its 1008 compensation claim and is the statute under which this case is to be decided. Employing the rules of statutory construction, we likewise find that the more specific statute prevails. Therefore, service was proper when the 1008 compensation claim was sent by certified mail to the named defendants. That is not to say, however, that service must not be made on the proper party.

Though service was properly made pursuant to La. R.S. 23:1310.3(B) by certified mail, it was not made on the proper party in this case. In Lee, Losabia, and Andre, there was never a question of whether the defendants were the plaintiffs’ employers. Here, however, K & W Diners, LLC contends that it did not |sown, operate, or employ anyone at Fat Hen Grill. K & W Diners, LLC and East Jefferson both agree that K & W Diners, LLC is a separate and distinct entity from Royal Citrus and Fat Hen Grill — both owned and operated by Mr. Pritchett not K & W Diners, LLC.

In addition, K & W Diners, LLC was never served with process. Service was required to have been made by certified mail at 104 Metairie Heights — K & W Diners, LLC’s registered address. That did not happen. Instead, the OWC sent the 1008 compensation claim by certified mail to “K & W Diners, LLC d/b/a Fat Hen Grill” at 5708 Citrus Blvd. La. C.C.P. art. 2002(A)(2) provides that a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken. Because K & W Diners, LLC was never served with process, we therefore find that the OWC erred in denying the motion to annul and that the judgment must be annulled pursuant to La. C.C.P. art. 2002(A)(2) unless East Jefferson’s contention that Mr. Pritchett and Royal Citrus are K & W Diners, LLC’s mandatary is valid.

Mandatary

In its second assignment of error, K & W Diners, LLC contends that the trial court erred in finding that an agency relationship existed between it and Royal Citrus and Mr. Pritchett. East Jefferson, on the other hand, contends that K & W Diners, LLC held Mr. Pritchett out to be its mandatory.

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. La. C.C. art. 2989. In this case, we must determine the nature of the relationship, if any, that existed between K & W Diners, LLC, Fat Hen Grill, Royal Citrus, Mr. Pritchett, and East Jefferson on April 25, 2009.

13Presently, Fat Hen Grill, Royal Citrus, and K & W Diners, LLC are all registered limited liability companies. On April 25, 2009, however, Fat Hen Grill did not exist as an incorporated business. Rather, it was merely a business name Mr. Pritchett used to operate the restaurant as a sole proprietorship. In contrast to a corporation or partnership, a sole proprietorship is not a legal entity. Haddad v. Elkhateeb, 10-0214, 10-0308, p. 7 (La.App. 4 Cir. 8/11/10), 46 So.3d 244, 250. It is merely a designation assigned to a manner of doing business by an individual who is solely responsible for all of the debts and obligations of the business. Id. No legal distinction exists between the individual and the business. Id. (citation omitted).

In this case, there was no legal distinction between Fat Hen Grill and Mr. Pritchett on April 25, 2009. Mr. Pritchett was therefore responsible for all of Fat Hen Grill’s debts and obligations. Id. K & W Diners, LLC, on the other hand, was an incorporated' business. Its registration with the secretary of state reflected three members — none of whom included Mr. Pritchett. Therefore, Mr. Pritchett did not have actual authority to bind K & W Diners, LLC. This, however, does not automatically lead to the conclusion that Mr. Pritchett was not K & W Diners, LLC’s mandatary if apparent authority exists.

A mandatary’s power or authority is composed of his actual authority, express or implied, together with the apparent authority which the principal has vested in him by his conduct. Boulos v. Morrison, 503 So.2d 1, 3 (La.1987). As between the principal and the mandatary, the limit of the mandatary’s authority to bind the principal is governed by the agent’s actual authority. Id. However, as between the principal and third persons, the limit of an agent’s authority to bind the principal is governed by his apparent authority. Id. As the Louisiana Supreme Court stated:

1, (Apparent authority is a doctrine by which an agent is empowered to bind his principal in a transaction with a third person when the principal has made a manifestation to the third person, or to the community of which the third person is a member, that the agent is authorized to engage in the particular transaction, although the principal has not actually delegated this authority to the agent, (citations omitted). Tedesco v. Gentry Develop., Inc. 540 So.2d 960, 963 (1989).

In order for the doctrine of apparent authority to apply, the principal must first act to manifest the alleged mandatary’s authority to an innocent third party. Boulos, supra, at 3. Then, the third party must reasonably rely on the mandatary’s manifested authority. Id.

A third party who seeks to benefit from the doctrine of apparent authority may not blindly rely upon assertions of an agent. Id. He has a duty to inquire into the nature and extent of the agent’s power. Id. Given the circumstances of this particular case — someone in need of medical care — we cannot say that East Jefferson was unreasonable in relying on Mr. Pritch-ett’s authorization to treat Ms. Corpora. We must point out, however, that Mr. Pritchett disclosed Fat Hen Grill as Ms. Corpora’s employer not K & W Diners, LLC. Therefore, East Jefferson could have only reasonably believed it would receive payment from Fat Hen Grill.

In this case, the medical intake form stated that both the payer and insurance group was Fat Hen Grill. The “remarks” section of the form also listed Fat Hen Grill, 5708 Citrus Blvd, Harahan, LA 70123. It was only after Mr. Pritchett failed to pay the hospital bill that East Jefferson learned, through further discovery, that K & W Diners, LLC leased the property located at 5708 Citrus Blvd. Therefore, East Jefferson could not have reasonably believed K & W Diners, LLC was responsible for paying the bill when it rendered medical services to Ms. Corpora.

East Jefferson contends, on the other hand, that on April 25, 2009:

there was nothing in the public records to indicate that KW was not doing business as the Fat Hen Grill at that location [5708 Citrus Boulevard]. To |nthe contrary, all indications in the public records including the Secretary of States records and the Conveyance Records of Jefferson Parish were that KW was the proper party because it was leasing the business premises, and that it owned and had registered the trade name ‘Fat Hen Grill.’

On the day in question, however, Fat Hen Grill was not registered as a service mark or as a limited liability company. In fact, K & W Diners, LLC did not register the Fat Hen Grill service mark until seventeen days after Ms. Corpora was treated by the hospital. Therefore, we find that the OWC erred in finding that Mr. Pritchett and Royal Citrus were K & W Diners, LLC’s mandataries.

Alternatively, East Jefferson asks this Court to apply the putative man-datary doctrine if we conclude that Mr. Pritchett and Royal Citrus are not K & W Diners, LLC’s mandataries. The putative mandatary doctrine provides “one who causes a third person to believe that another person is his mandatary is bound to the third person who in good faith contracts with the putative mandatary.” La. C.C. art. 3021. The third party, however, must rely on the actions of the principal for the putative mandatary doctrine to apply. Boulos, supra, at 68. Here, K & W Diners, LLC did not perform any act to cause East Jefferson to believe that Mr. Pritchett or Royal Citrus was its manda-tary. To the contrary, the appellate record indicates that East Jefferson rendered services to Ms. Corpora solely based on Mr. Pritchett’s assertion that she was Fat Hen Grill’s employee. East Jefferson failed to produce any evidence that on April 25, 2009, it relied on anything other than Mr. Pritchetts assertion that Ms. Corpora was Fat Hen Grills employee and the entity responsible for payment of the medical bill. We, therefore, decline to apply the putative mandatary doctrine in this case.

| ^Conclusion

In sum, we find that K & W Diners, LLC did not own, operate, or employ anyone at Fat Hen Grill. We further find that K & W Diners, LLC did not hold Mr. Pritchett or Royal Citrus out to be its mandatary. In addition, we find that the OWC erred in denying the motion to annul and the judgment must be annulled pursuant to La. C.C.P. art. 2002(A)(2). Accordingly, the judgment appealed from is reversed.

REVERSED

      . This is the current version of the statute which became effective on July 7, 1992. There were two previous versions of this statute which will be discussed more fully in this opinion.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. John COLVIN.
    No. 2010-KA-1092.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 20, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Clayton Butler, Craig J. Mordock, Butler Mordock P.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| ¡.Defendant-Appellant appeals the trial court’s imposition of six consecutive ten-year sentences for his conviction of six counts of felony theft. For the reasons that follow, we affirm the conviction, vacate the sentences imposed by the trial court, and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

On June 24, 2009, Defendant-Appellant John Colvin was charged by indictment with six counts of felony theft over five hundred dollars in violation of La. R.S. 14:67. The victims were individuals whose homes were destroyed during Hurricane Katrina. Defendant accepted payments from each of the six victims in amounts varying from $40,000 to $65,000, for a total of $247,000.00. In each case, after accepting payments from the victims, Defendant failed to build modular homes as promised. Defendant is currently sixty-four years of age and has no prior criminal record.

At his arraignment on June 29, 2009, Defendant entered a plea of not guilty. Counsel for Defendant filed several pretrial motions, including a motion for a preliminary hearing. On August 3, 2009, following a hearing, the trial court found probable cause for the issuance of an arrest warrant. Trial was set for November 9, 2009. On the day of trial, Defendant withdrew his pleas of not guilty and entered Dpleas of guilty as to all six counts. The trial court requested that a pre-sen-tence investigation report be prepared.

The trial court subsequently sentenced defendant to the maximum of ten years at hard labor on each of the six counts, to be served consecutively, and victim restitution. This appeal followed.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

In his first assignment of error, Defendant asserts he has properly preserved for appellate review his claim that the sentences rendered are unconstitutionally excessive and that the trial court failed to properly consider mitigating factors for sentencing leniency.

La.C.Cr.P. art. 881.1 provides in pertinent part:

A. (1) Within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
B. The motion shall be oral at the time of sentencing or in writing thereafter and shall set forth the specific grounds on which the motion is based.
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of exces-siveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

“[T]he failure to object to the sentence as excessive at the time of sentencing or to file a written motion to reconsider sentence precludes appellate review of the [4claim of excessiveness.” State v. Robinson, 98-1606, p. 9 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 125.

Defendant herein did not object or file a motion for reconsideration of sentence. In support of the assertion that his claim has been properly preserved, however, Defendant relies upon State v. Kirkling, 2004-1906, pp. 5-7, (La.App. 4 Cir. 5/18/05), 904 So.2d 786, 789-790, wherein the defendant was convicted of attempted carjacking as a second felony offender and purse snatching and asserted that the concurrent twenty-year maximum sentence was excessive under the circumstances. Although the defendant in Kirkling did not object to the sentence or file a motion for reconsideration, this Court held that a copy of a letter from the defendant asking the court to reconsider his sentence sufficed to preserve the defendant’s claim of excessive sentence:

Again, neither Mr. Kirkling nor his counsel objected to the sentence or filed a timely motion for reconsideration of that sentence. However, at the close of the multiple bill hearing, Mr. Kirkling asked the trial judge if he had received a letter from him. Although the judge indicated he had not read any letters from Mr. Kirkling, the judge accepted Mr. Kirkling’s offer to provide him with a copy of the letter. The judge also ordered that the letter, dated June 29, 2004, be filed in the record. A copy of that letter in which Mr. Kirkling requests the judge reconsider his sentence is in the record on appeal. Given these circumstances, we find the trial court’s express order at the conclusion of the multiple bill hearing that Mr. Kirkling’s letter be included in the record was equivalent to the trial court noting Mr. Kirkling’s objection to the sentence and thus sufficient to preserve his claim of excessiveness as to his re-sentencing on count one (attempted carjacking as a second felony offender). See [State v.] Miller, [00-0218 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 111].

Kirkling, 2004-1906, pp. 5-7, 904 So.2d 786, 791.

In this case, the record contains a written memorandum in support of probationary sentence filed on February 5, 2010, prior to the sentencing date of | ¡¡February 12, 2010. We find that Defendant’s memorandum, upon which the trial court signed, dated, and wrote the word “denied,” sufficiently preserved his claims for appellate review.

In his second assignment of error, Defendant argues that the trial court faded to give proper consideration to the mitigating factors for leniency set forth in his memorandum at the sentencing hearing. Defendant further argues that his sentences, which total sixty (60) years imprisonment, are unconstitutionally excessive and/or in violation of the statutory sentencing guidelines.

Article 1, Section 20 of the Louisiana Constitution of 1974 prohibits “cruel, excessive, or unusual punishment.” A sentence within the statutory limits may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739, 751 (La.1992). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id. (citing State v. Hogan, 480 So.2d 288 (La.1985)).

The underlying offense is felony theft, a violation of La. R.S. 14:67. La. R.S. 14:67 provides, in pertinent part:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
(1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of one thousand five hundred dollars or more shall be imprisoned, with or without hard labor, for not more |fithan ten years, or may be fined not more than three thousand dollars, or both.

With regard to concurrent and consecutive sentences, La. C. Cr. P. art. 883 provides that sentences for crimes arising out of a single course of conduct are generally to be served concurrently:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

This Court has recognized that other factors must be considered when determining whether sentences should be served consecutively or concurrently. State v. Parker, 503 So.2d 643, 646 (La.Ct. App. 4th Cir.1987) (citing State v. Ortego, 382 So.2d 921, 923 (La.1980); State v. Ashley, 463 So.2d 794 (La.App. 2nd Cir.1985)). These factors include defendant’s criminal history, the dangerousness of the offense, the viciousness of the crimes, the harm done to the victim(s), the potential for the defendant’s rehabilitation, and the danger posed by the defendant to public safety. Parker, 503 So.2d at 646.

Additionally, while La. C. Cr. Pr. art. 894.1 provides sentencing guidelines, “the imposition of consecutive sentences for crimes arising from a single course of 17conduct requires particular justification.” Id. (citing State v. Messer, 408 So.2d 1354 (La.1982); State v. Mosley, 466 So.2d 733 (La.App. 4th Cir.1985)).

lain the Memorandum in Support of Probationary Sentencing, Defendant advanced several alleged mitigating factors, and at the sentencing hearing, character witnesses testified on Defendant’s behalf. In the memorandum, Defendant argued that certain factors should be taken into consideration by the court pursuant to La. C. Cr. Pr. art. 894.1(B), including: there was no deliberate cruelty to the victims, as his crime was economic in nature; the victims were not vulnerable or incapable of resistance; he was not offered anything in return for the commission of the crime; he was not a resident of Louisiana, and the victims freely entered into their contracts with him; there was no risk of death or great bodily harm in connection with his crime; he never used threats or actual violence; the crime did not result in a significant permanent injury; he did not employ a dangerous weapon or discharge a firearm in the commission of the crime; he was not persistently involved in similar offenses, as he was a businessman with vastly inferior business management practices; and the offense did not involve a controlled dangerous substance.

Defendant maintained that there were substantial grounds tending to excuse or justify his conduct, because he had previously worked in a structured environment wherein he was accountable as a State Legislator in Alabama and on the Water Board in Rainbow, Alabama. Defendant further argued that if given a probationary sentence, he would deliver restitution to the victims, which he would be unable to do while in prison. Defendant argued that imprisonment would result in excessive hardship on his family, and emphasized that he had no prior criminal record.

At Defendant’s sentencing hearing, numerous character witnesses attested to his good character and his reputation for honesty and generosity. A relative, Billy |flRay Colvin, testified that Defendant had served on the Water Board in Rainbow City, Alabama and had personally contributed to the installation of water meters in neighboring rural areas where families had no running water. There was further testimony that Defendant had served in the Alabama State Legislature. Alison Schneider, Defendant’s daughter, described Defendant as a “very fine” father who did good deeds spontaneously in his community. Ms. Schneider testified that Defendant, when running a convenience store he owned, would often not charge customers for milk, bread or eggs when it was apparent that the individual was scrounging for change. Defendant also often provided needy children in the community with Christmas toys, clothes and haircuts.

Ralph Burke, who served in the Alabama House of Representatives with Defendant, also testified. Mr. Burke testified that Defendant’s priorities consistently involved playgrounds at city parks, playgrounds at schools, gymnasiums, and other causes that would benefit children. Mr. Burke further testified that he and Defendant remained friends and worked together in the early 1990s making sales calls for carpeting, furniture, and portable classrooms, at which time Defendant paid Mr. Burke’s commission “without question and without failing.” With regard to restitution, Mr. Burke affirmed that there was no doubt in his mind that Defendant would make restitution for the victims. Mr. Burke also referenced a letter submitted to the trial court written by Jim Folsom, the Lieutenant Governor of Alabama, on Defendant’s behalf. Seth Hammett and Craig Ford also offered letters to the trial court in support of Defendant, attesting to Defendant’s good character and reputation during the time that Defendant served with Mr. Hammett and Mr. Ford in the Alabama House of Representatives. Defendant was also reputed to have helped in the rehabilitation of a University of hoAlabama football player who had turned to drugs. Mr. Burke testified that Defendant provided the football player with a job and allowed him to drive a vehicle to make sales calls, and made sure that the player returned to the YMCA every evening at 6:00 p.m. as ordered by the court.

April Pruitt, Defendant’s oldest daughter, also testified, stating that Defendant was a wonderful, supportive, loving, and very compassionate father. Ms. Pruitt further testified while in high school, she was on the cheerleading squad, and Defendant personally purchased cheerleading uniforms for members of the squad who could not afford them so that they could participate. Ms. Pruitt also maintained that Defendant’s brother, Don Colvin, had offered to employ him in his plastering business.

In the pre-sentence investigation interview, dated January 10, 2010, Defendant’s statement reads as follows:

The following information was obtained during an interview with the subject at Orleans Parish Prison on January 5, 2010. The subject started selling modular homes in 2007 to people in the region [ajffected by Hurricane Katrina. The subject claimed he ran into problems because he is not a licensed contractor in Louisiana and could not get the permits for the houses. The subject began working with Jerry Bonner of Pruitt Construction Company. Mr. Bonner was paid in advance to lay foundations for seven properties. The subject claims Mr. Bonner had to re-do one job several times and it cost over $100,000.00 to fix the mess. It took over three months to complete a job that should have taken two weeks. The subject claims that at this point, the owner of the first property did not pay her remaining balance of $46,000.00. The subject decided to go with another contractor, A. Stroughter, and when his mother became ill, he went to Alabama to care for her. The subject said he was in Alabama for about six months until his arrest. The subject said he paid all of the money to contractors and he did not use any of the money for personal gain.

Defendant also testified at his sentencing hearing, at which time he admitted wrongdoing, expressed remorse and his intent to pay restitution to the victims.

_JjjAt the hearing for victim impact statements and sentencing, held on February 12, 2010, after hearing the victims’ testimony, the State requested that Defendant receive the maximum sentence on each count, and that the sentences run consecutively:

THE COURT:
Thank you. Stand for sentencing, sir. Mr. Colvin, the court is entirely familiar with the facts of this case. I find the behavior unconscionable and, yes, predatory and deeply offensive. Half of my courtroom is filled right now with victims, people who were hurt by what you did to them. They’re older people, they’re working class people. You’ve not only taken their money from them, you’ve not only deprived them of the homes that they dreamed to be able to return to, but you’ve taken their dreams, you’ve taken their health in some instances. You’ve broken their spirit, sir. We heard from six witnesses. Mr. Joseph took the stand, he talked about upwards of $65,000 that he was bilked, that’s the only word to use, bilked. He was bilked out of $65,000. Ms. Rainey, $52,000; Ms. Turner, $45,000; Mr. King on behalf of his parents, over $48,000; Ms. Marshall, $47,000 and the final victim, whose name escapes me and I apologize.
MS. AFRICK:
Ms. Warfield.
COURT:
Thank you. $40,000. And you know what, not only have you done damage to these victims, but you’ve done damage to this entire community. You represent our worst fear. And this is not an isolated incident. This wasn’t a contract dispute, this is not a civil matter. It’s a pattern of behavior aimed at bilking people out of their money, out of their hard earned money and frustrating their efforts to return to some degree of normalcy to retain not only their homes, but their lives. You took that away from them. You took that away from them. I want to even point out that these people have made this appearance today, the weather is horrendous outside. We’ve got rain, it’s cold, we’ve got sleet, we’ve got snow. I see elderly people, I see people |12who are obviously infirm, coming into court today because they wanted to speak their piece and I heard each and every one of them, as did this entire room.
Sir, I am so deeply, not only embarrassed, but offended, as a public servant, as an elected official, that you would invoke your service in the Alabama House of Representatives as somehow being in mitigation of the activities that you have been accused of and have pled guilty to. It’s horrible. I’m embarrassed for your family and I’m embarrassed for your colleagues and your former colleagues, hauling them into court to somehow put a better spin on this horrific series of events that are before me today. This has been a precipitous fall, sir. You go from being a public servant, an elected official, to being a public predator and a convicted felon. I’m truly embarrassed and sorry for your family and your friends, but I’m also very, very, very supportive of these victims’ outrage at what you have done to them.
Mr. Colvin, in exchange for your promises and all that you have done, sir, there’s a trail of lies and broken promises and empty lots, I’m sure I speak for these folks when I say that your apology rings hollow, sir, when these people are still struggling to this day. They don’t have homes, they’re struggling to pay their rents, some of them became ill, some of their family members. This is wrong. This is wrong, sir. I feel compelled to send the only message that I can and do hold you entirely responsible for your behavior.

After ordering that Defendant serve the maximum sentence for each of the six counts of felony theft, the court concluded:

If you ever have the good fortune of somehow being able to extricate yourself from this situation, sir, I’m also going to order that you pay restitution in full to these victims to make these people whole. You’ve irrevocably damaged these peoples’ lives. You’re going to carry that with you for the rest of your days.

With regard to reviewing a claim for excessive sentence, this Court has recognized that “[generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.Code Crim. haProc. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case.” Robinson, p. 2, 744 So.2d at 127 (citing State v. Soco, 441 So.2d 719 (La.1983); State v. Quebedeaux, 424 So.2d 1009 (La.1982)). Accordingly, “[i]f adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” Id. at p. 2-3, 744 So.2d 119 (citing State v. Quebedeaux, supra; State v. Guajardo, 428 So.2d 468 (La.1983)).

A review of the record demonstrates that the trial court considered the memorandum, heard testimony from both character witnesses and Defendant in support of mitigation, and also considered testimony from each of the victims. Thus, the trial court complied with its obligation to examine and consider mitigating evidence despite the fact that the trial court did not articulate the mitigating factors specifically. Nevertheless, we find that the sentence imposed was not particularized to Defendant and the offense charged. See Robinson, p. 2, 744 So.2d at 127.

Notably, the Louisiana Supreme Court has held that courts should impose concurrent rather than consecutive sentences for offenders with no prior criminal record, such as Defendant:

For an offender without prior felony record, ordinarily concurrent rather than consecutive sentences should be imposed, especially where the convictions arise out of the same course of conduct within a relatively short period. State v. Watson, 372 So.2d 1205 (La. 1979); State v. Cox, 369 So.2d 118 (La. 1979). However, consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period, the offender poses an unusual risk to the safety of the public, similar to those posed by habitual or by dangerous offenders. State v. Watson, supra.

State v. Jacobs, 383 So.2d 342, 345 (La.l980)(emphasis added); see also State v. Underwood, 353 So.2d 1013, 1019 (La. 1977)(“Based on American theory and practice concurrent rather than consecutive sentences are the usual rule, at least for a defendant without criminal record and in the absence of a showing that the public safety requires a longer sentence”).

Similarly, in State v. Ferguson, 2010-0199 (La.App. 4 Cir. 6/30/2010), 43 So.3d 291, the defendant therein pled guilty in two separate cases to fifteen counts of theft of property valued at over $500.00 and one count of misapplication of funds by a contractor. Unlike Defendant in the instant case, however, the defendant in Ferguson had two prior convictions for similar offenses; thus, this Court held that the trial court did not abuse its discretion in ordering the sentences to be served consecutively. Considering the Ferguson defendant’s two prior convictions, which this Court held demonstrated evidence of recidivism, our rationale in Ferguson simply cannot be analogized to the facts of this particular case, as Defendant has no prior convictions.

The State maintains that the sixty-year sentence is justified, relying upon State v. Hawkins, 06-1599 (La.App. 3 Cir. 5/2/07), 956 So.2d 146. In Hawkins, the defendant was convicted of two counts of simple burglary of an inhabited dwelling and seventeen counts of theft of a firearm. The trial court sentenced the defendant to twelve years at hard labor on each count of simple burglary, and ten years at hard labor on each count of theft of a firearm, with the sentences to run concurrently, but consecutively as to the sentences for simple burglary. In affirming the sentences, Third Circuit recognized the trial court’s finding that the defendant did not enter a guilty plea until it was apparent that some of his cohorts were prepared to testify against him; that the defendant refused to cooperate and | ^mitigate the loss to the victims, that the defendant admitted to having drug problems in the past, and that defendant exhibited a total disregard for the victims’ property. The Hawkins defendant also had a past history of felony theft and simple burglary, unlike the Defendant in this case. Accordingly, the rationale of the court in Hawkins is inapplicable to the facts of this case.

Although mindful of the trial court’s discretion with regard to sentencing, we find that the sentences imposed are excessive under these particular facts and circumstances. Considering the mitigating evidence presented to the trial court, the age of Defendant, Defendant’s attempt to mitigate the loss to one of the victims before his arrest, and the fact that Defendant is non-violent and has no prior criminal record, we find that the trial court abused its discretion in ordering the six ten-year sentences to be served consecutively. See State v. Cox, supra. However, we do not find that a ten-year sentence is sufficient either, considering the extreme economic and emotional harm suffered by the victims in this case. Accordingly, the matter is remanded to the trial court for resen-tencing.

CONCLUSION

Defendant’s conviction is affirmed. The sentences are hereby vacated and the matter is remanded for resentencing in accordance with the views expressed in this opinion.

CONVICTION AFFIRMED; SENTENCES VACATED; REMANDED

      . Ordering a pre-sentence investigative report is discretionary; there is no mandate that such a report be ordered. State v. Hayden, 98-2768, p. 27 (La.App. 4 Cir. 5/17/00), 767 So.2d 732, 748, citing La.C.Cr.P. art. 875(A)(1).

      . La. Code Cr. Proc. art. 894.1(B) provides, in pertinent part: B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation: (1) The offender’s conduct during the commission of the offense manifested deliberate cruelty to the victim. (2) The offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health. (3) The offender offered or has been offered or has given or received anything of value for the commission of the offense. (4) The offender used his or her position or status to facilitate the commission of the offense. (5) The offender knowingly created a risk of death or great bodily harm to more than one person. (6) The offender used threats of or actual violence in the commission of the offense. (7) Subsequent to the offense, the offender used or caused others to use violence, force, or threats with the intent to influence the institution, conduct, or outcome of the criminal proceedings. (8) The offender committed the offense in order to facilitate or conceal the commission of another offense. (9) The offense resulted in a significant permanent injury or significant economic loss to the victim or his family. (10) The offender used a dangerous weapon in the commission of the offense. (11) The offense involved multiple victims or incidents for which separate sentences have not been imposed. (12) The offender was persistently involved in similar offenses not already considered as criminal histoiy or as a part of a multiple offender adjudication. (13) The offender was a leader or his violation was in concert with one or more other persons with respect to whom the offender occupied a position of organizer, a supervisory position, or any other position of management. (14) The offense was a major economic offense. (15) The offense was a controlled dangerous substance offense and the offender obtained substantial income or resources from ongoing drug activities. (16) The offense was a controlled dangerous substance offense in which the offender involved juveniles in the trafficking or distribution of drugs. (17) The offender committed the offense in furtherance of a terrorist action. (18) The offender foreseeably endangered human life by discharging a firearm during the commission of an offense which has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and which, by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense. (19) The offender used a firearm or other dangerous weapon while committing or attempting to commit an offense which has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and which by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense. (20) The offender used a firearm or other dangerous weapon while committing or attempting to commit a controlled dangerous substance offense. (21) Any other relevant aggravating circumstances. (22) The defendant’s criminal conduct neither caused nor threatened serious harm. (23) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm. (24) The defendant acted under strong provocation. (25) There were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense. (26) The victim of the defendant’s criminal conduct induced or facilitated its commission. (27) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained. (28) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime. (29) The defendant’s criminal conduct was the result of circumstances unlikely to recur. (30) The defendant is particularly likely to respond affirmatively to probationary treatment. (31) The imprisonment of the defendant would entail excessive hardship to himself or his dependents. (32) The defendant has voluntarily participated in a pretrial drug testing program. (33) Any other relevant mitigating circumstance.

      . There was no sentencing recommendation in the probation report.

      . At the victim impact hearing, one of the victims testified that Defendant returned $5,000.00 to him before Defendant’s arrest. Thus, unlike the defendant in Hawkins, Defendant in this case attempted to mitigate the loss to one of the victims.