text:
    STATE of Louisiana v. Perry ABBOTT.
    No. 11-KA-1162.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Ernest C. Chen, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/App ellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ^Defendant, Perry Abbott, appeals his conviction and sentence for second degree battery. For the reasons that follow, we conditionally affirm his conviction and sentence and remand the matter for an evi-dentiary hearing to determine if defendant validly waived his right to a jury trial.

Defendant was charged in a bill of information on August 11, 2010 with second degree battery in violation of La. R.S. 14:34.1. He initially pled not guilty, but later changed his plea to not guilty by reason of insanity. After being found competent to stand trial, defendant proceeded to a bench trial on September 7, 2011, where the trial court found him guilty as charged. The trial court sentenced defendant to five years imprisonment at hard labor. Defendant timely appealed.

FACTS

On June 6, 2010, defendant was admitted to River Oaks Hospital pursuant to a doctor’s order where he was diagnosed with “bipolar disorder with psychiatric features.” While there, defendant began taking medication; specifically, he was prescribed Haldol for his psychotic symptoms and Lithium for his mood disturbance.

Is At 6:30 a.m. on June 10, 2010, Deanna Johnson arrived at River Oaks where she worked as a nurse manager. When she arrived, defendant was singing loudly and causing chaos on the unit. At approximately 7:15 a.m., Ms. Johnson and the staff went to defendant to give him an injection to calm him down. Gilbert Worthy, who is a psychiatric counselor, and a male nurse were present to hold defendant down, if necessary. As Ms. Johnson gave defendant the injection, defendant was cursing and threatening to kill her. Ms. Johnson subsequently went about her day, and defendant got better.

Later, defendant started acting up again and fighting with the other patients, which necessitated another injection at approximately 11:30 a.m. Ms. Johnson did not want to give defendant the second injection because she was afraid of him due to his earlier threat. As such, other staff members attempted to administer the injection, but defendant screamed and refused to cooperate. Defendant then saw Ms. Johnson and told her to give him the injection. Although Ms. Johnson was scared, she gave defendant the injection and walked away.

At approximately 1:00 p.m., Ms. Johnson and two co-workers were in the nurse’s station talking while the patients were in therapy. A few minutes later, the two coworkers walked out, followed by Ms. Johnson. At that point, defendant punched Ms. Johnson in the face in the nose area three or four times, and she began bleeding profusely. Mr. Worthy pulled defendant away from Ms. Johnson, but defendant continued to fight and swing his arms. It took a male nurse, who was approximately 6'3" and weighed 250 pounds; Mr. Worthy, who was also a large man; and another male to restrain defendant. The incident was captured on videotape, and the videotape was shown to the judge during trial.

Ms. Johnson was taken to East Jefferson General Hospital where she received sutures on her nose and pain medication. She was referred to a plastic |4surgeon, who operated on her within a week of the attack. She underwent a second operation approximately two months later.

Ms. Johnson explained that the doctor had to cut her head from the crown down to the ear, and he had to cut the backside of her ear from top to bottom and the inside of her ear from top to bottom in order to get material to remake her nose. She stated that right after the attack her nose was flat because the bones were shattered. Ms. Johnson testified that she still suffers ill effects from the attack. She asserted that she could not breathe very well through her nose or smell, and that her face hurt, especially when it rained, because both of her cheek bones and her eye orbit had been broken. Ms. Johnson also stated that she had to take anti-depressants and sleep aids as a result of the attack.

LAW & ANALYSIS

In defendant’s sole assignment of error, he contends the evidence was insufficient to support his second degree battery conviction because he did not possess the required criminal intent at the time of the offense since he suffered from a mental disease or defect which prevented him from distinguishing between right and wrong.

The law presumes a defendant is sane. La. R.S. 15:432; State v. Silman, 95-154 (La.11/27/95), 663 So.2d 27, 32. To rebut the presumption of sanity and avoid criminal responsibility, the defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La.C.Cr.P. art. 652. Criminal responsibility is not negated by the mere existence of a mental disease or defect. To be exempted from criminal responsibility, the defendant must show he suffered a mental disease or defect which prevented him from distinguishing between right and wrong at the time he committed the conduct in question. La. R.S. 14:14; Silman, 663 So.2d at 32.

| ¿¡The determination of sanity is a factual matter. Silman, supra. In considering an accused’s plea of not guilty and not guilty by reason of insanity, the trier of fact must first determine whether the State has proven the essential elements of the charged offense beyond a reasonable doubt. The trier of fact may then proceed to the determination of whether the defendant was incapable of distinguishing between right and wrong at the time of the offense, and is thus exempt from criminal responsibility for his actions. State v. Branch, 99-1484 (La.3/17/00), 759 So.2d 31, 32 (per curiam).

All evidence, including both expert and lay testimony, along with defendant’s conduct and actions before and after the crime, may be considered in determining whether the defendant has met his burden of proof. State v. Williams, 10-1010 (La.App. 5 Cir. 9/27/11), 76 So.3d 90, 96. On review of a claim for sufficiency of evidence in an action where an insanity defense has been raised, the appellate court, applying the standard outlined in Jackson v. Virginia, must determine whether under the facts and circumstances of the case, any rational fact finder, viewing the evidence in a light most favorable to the prosecution, could conclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. Silman, supra.

In the present case, defendant was convicted of second degree battery, which is defined as “a battery when the offender intentionally inflicts serious bodily injury.” La. R.S. 14:34.1(A). “Serious bodily injury” is defined as “... bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily |fimember, organ, or mental faculty, or a substantial risk of death.” La. R.S. 14:34.1(B).

Defendant argues he did not have the required specific intent to inflict harm on Ms. Johnson because he suffered from a mental disease or defect which prevented him from distinguishing between right and wrong. Defendant relies on a February 9, 2011 report from Dr. Rafael Salcedo, a forensic psychologist, and Dr. Richard Ri-choux, a forensic psychiatrist, which he introduced into evidence to support his position.

In that report, Drs. Salcedo and Richoux stated that it was more likely than not that at the time of the commission of the alleged offense, defendant was suffering from a major psychiatric illness, namely Schizoaffective Disorder. They further stated that as a result of defendant’s paranoia and grandiosity associated "with that disorder, they believed that it was more likely than not that at the time of the commission of the alleged offense, defendant’s psychiatric disorder impaired his ability to distinguish right from wrong. Their report indicated that they had reviewed the arresting officer’s report and Jefferson Parish Correctional Center medical records, which contained some medical records from River Oaks.

Conversely, the State presented the testimony of Dr. William Lo, a psychiatrist who had been working at River Oaks since 2003 and who was defendant’s attending physician while defendant was a patient at River Oaks from June 6 to 11, 2010. Dr. Lo testified that he prepared a discharge summary when defendant left River Oaks on June 11, 2010. In that discharge summary, Dr. Lo stated that at the time of the incident, defendant was in control of his faculties and made a calculated decision to hit a female staff member, and that defendant was not responding to internal stimuli or having any hallucinations when he did so. Based on defendant’s behavior on the unit, Dr. Lo stated he believed that at the 17time of the offense, defendant could ascertain right from wrong. In preparing his report, Dr. Lo talked to three staff members regarding the attack and interviewed defendant right after the incident.

The record shows the trial judge was faced with conflicting psychiatric evidence regarding defendant’s state of mind at the time of the incident. The evidence shows that defendant threatened to kill Ms. Johnson when she gave him the first injection. Later that day, defendant carried through with his earlier threat by striking Ms. Johnson in her face, causing serious injuries. Dr. Lo, defendant’s attending psychiatrist at River Oaks, testified he believed that at the time of the offense, defendant was acting with his full faculties, was in control of himself, and could ascertain right from wrong. On the other hand, Drs. Salcedo and Richoux, who did not examine defendant until several months after the incident, believed that it was more likely than not that at the time of the commission of the offense, defendant’s psychiatric disorder impaired his ability to distinguish right from wrong.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. Jurisprudence holds that the diagnosis and opinions of a treating physician is entitled to more weight than that of the diagnosis and opinions of an evaluating physician. See Powell v. Chabanais Concrete Pumping, Inc., 11-408 (La.App. 5 Cir. 12/28/11), 82 So.3d 548, 559 (citations omitted). In this case, the trial court rejected the opinions of the evaluating physicians, Drs. Salcedo and Richoux, and gave deference to Dr. Lo, the treating physician, who opined that defendant could distinguish between right and wrong at the time the offense was committed.

|RWe do not find the trial court erred in accepting the testimony of Dr. Lo over the opinions of Drs. Salcedo and Richoux. Dr. Lo was defendant’s treating physician, and he rendered his opinion after interviewing three staff members and defendant shortly after the incident. Conversely, Drs. Salce-do and Richoux, who were not defendant’s treating physicians, rendered their opinions after interviewing defendant many months after the incident, and after viewing the police report and medical records from the Jefferson Parish Correctional Center and River Oaks.

Considering the totality of the evidence, we find the trial judge could have reasonably concluded that defendant failed to prove by a preponderance of the evidence that he was insane or incapable of distinguishing between right and wrong at the time of the offense. Accordingly, we find the evidence sufficiently supports defendant’s conviction for second degree battery.

ERRORS PATENT

Pursuant to La.C.Cr.P. art. 920, we reviewed the record for errors patent and find the record does not reflect defendant knowingly and willingly waived his right to a jury trial before proceeding to a bench trial.

The record shows that defendant filed a “Motion to Reserve Right to Waive Trial by Jury” on February 22, 2011, almost seven months before trial. In that motion, defendant moved the court to permit him to exercise his right to trial by judge and to waive his right to a jury trial should he elect to do so at the time of trial. The judge granted the order to show cause attached to the motion. However, the record does not reflect that defendant was properly advised of his right to a jury trial in accordance with La.C.Cr.P. art. 780, or that he knowingly and willingly waived that right before proceeding to a bench trial. Although neither defendant nor the State raise this issue, this Court has recognized said issue as an error patent. State v. Lokey, 02-1087 (La.App. 5 Cir. 2/25/03), 840 So.2d 653, 655-56, writ denied, 03-1212 (La.11/7/03), 857 So.2d 518.

Defendant was convicted of second degree battery, which at the time of the offense was punishable by not more than five years imprisonment with or without hard labor. La. R.S. 14:34.1(C). Louisiana Constitution Article I, § 17 and La. C.Cr.P. art. 782 provide that a case which may be punishable by hard labor shall be tried by a jury composed of six jurors. Louisiana Code of Criminal Procedure article 780 requires that a defendant be advised of his right to a jury trial. Although the right to a jury trial may be waived in non-capital cases, it must be “knowingly and intelligently” waived. La.C.Cr.P. art. 780(A). Waiver of this right is never presumed. Lokey, 840 So.2d at 656.

Because the record in this case does not reflect a valid jury waiver, we remand the matter to the trial court for an evidentiary hearing on the question of whether the defendant validly waived the right to a jury trial. If the evidence shows that defendant did not make a valid waiver, the trial court must set aside the conviction and sentence and grant defendant a new trial. Defendant’s right to appeal any adverse ruling on the waiver issue is reserved. See State v. Nanlal, 97-786 (La.9/26/97), 701 So.2d 963; Lokey, supra.

DECREE

Defendant’s conviction and sentence for second degree battery are conditionally affirmed. The matter is remanded to the trial court for an evidentiary hearing to determine if defendant validly waived his right to a jury trial in accordance with the above instructions and for further proceedings, if necessary, pursuant to Nanlal.

CONDITIONALLY AFFIRMED; REMANDED FOR EVIDENTIARY HEARING

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Larnell Ramon FLEMING v. Asann ARMANT.
    No. 12-CA-43.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      William H. Daume, Attorney at Law, Gretna, LA, for Plaintiff/Appellee.
    Asann Whitley Armant, In Proper Person, Marrero, LA, Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and ROBERT A. CHAISSON.
   WALTER J. ROTHSCHILD, Judge.

|2On March 8, 2010, Larnell Fleming filed a Petition to Disavow Paternity against Asiann Armant, alleging that he is not the biological father of the minor child, Larnell Fleming, Jr., who was born on December 21, 2008. Mr. Fleming indicated that he had previously executed an acknowledgement of paternity and placed his name on the birth certificate of the child, because he had believed that he was the child’s father. However, he claims that a DNA test was performed and it revealed that he is not the father. The trial court appointed a curator to represent the interests of the minor child. After exceptions of no cause of action and prescription were filed, Mr. Fleming filed an Amended Petition on April 30, 2010, in which he claimed that Ms. Armant induced him to sign an acknowledgment of paternity by fraud and he sought to revoke his acknowledgement of paternity under the provisions of LSA-R.S. 9:406(B).

On February 24, 2011, Ms. Armant filed a Motion for Scientific Paternity Testing, asking the trial court to order Mr. Fleming to submit to scientific testing in Rorder to determine the paternity of the minor child. In her motion, Ms. Armant agreed to withdraw any and all pending paternity claims against Mr. Fleming if the test results clearly show that he is not the biological father of the child.

On March 31, 2011, the parties appeared before the domestic hearing officer and entered into a stipulation. The parties agreed that both parties and the child would submit to blood/tissue sample testing by April 15, 2011 at a particular facility at the mother’s expense. Ms. Armant further agreed that if the testing shows that Mr. Fleming is not the biological father of the child, she would execute a consent judgment to rescind his acknowledgement and remove his name from the child’s birth certificate. Ms. Armant, counsel for Mr. Fleming, and the curator representing the minor child signed the document setting forth these stipulations, which was made a judgment of the court.

On July 19, 2011, Mr. Fleming filed a Rule for Contempt and to Show Cause, asserting that he and the minor child submitted to a DNA analysis on April 4, 2011, and that he was excluded as the biological father of the child. He claimed that Ms. Armant should be held in contempt and ordered to pay attorney fees and costs, because she agreed to sign a consent judgment if the testing revealed that Mr. Fleming was not the father of her child, but she has refused to do so.

On September 19, 2011, the parties appeared again before the domestic hearing officer. The hearing officer recommended that appropriate sanctions be assessed against Ms. Armant because she refused to sign a consent judgment despite her previous stipulation. The hearing officer’s recommendation was made an interim judgment of the court. On September 21, 2011, Ms. Armant filed an Objection to Hearing Officer’s Recommendation and Judge’s Interim Order, requesting a de novo hearing of the matter by the trial judge.

14This case came before the trial judge for hearing on October 12, 2011. After a brief hearing, the trial judge granted Mr. Fleming’s Petition to Revoke Acknowl-edgement of Paternity and Rule for Contempt, and ordered Ms. Armant to pay $500.00 each to Mr. Fleming’s attorney and the curator, as well as court costs. She also found that Ms. Armant’s Motion to Dismiss Plaintiffs Disavowment Claim, which was filed on August 10, 2011, was moot. On that same date, she also signed a judgment decreeing that Larnell Fleming is not the father of Larnell Fleming, Jr., ordering that Mr. Fleming be allowed to rescind his acknowledgement of paternity, and ordering the State of Louisiana to remove Mr. Fleming’s name from the child’s birth records. Ms. Armant appeals.

LAW AND DISCUSSION

In her first argument on appeal, Ms. Armant contends that the trial court erred by dismissing her Motion in Limine as “moot.” In her Motion in Limine, Ms. Armant sought an order from the trial court excluding and barring as credible scientific evidence any written statements or documentation referring to alleged DNA results that have not been entered into evidence.

The record reflects that Ms. Armant filed her Motion in Limine on October 12, 2011. That same day, the parties appeared before the court and the trial judge granted Mr. Fleming’s Petition to Revoke Acknowledgement of Paternity and Rule for Contempt, which resolved all pending issues in this lawsuit. During the hearing on these motions, Ms. Armant filed two motions with the Clerk of Court. Presumably, Ms. Armant’s Motion in Limine was one of these motions, as the records shows that it is one of only two motions that were filed that day by Ms. Armant. Nevertheless, the Motion in Limine was not set for hearing before the trial judge on October 12, 2011.

| r,Considering that the trial judge ruled on the merits of this lawsuit on October 12, 2011, and there were no remaining issues to litigate after that date, the trial judge did not err in denying Ms. Armant’s Motion in Limine as moot at that time. This assignment of error is without merit.

In her second argument on appeal, Ms. Armant contends that the trial judge erred in granting Mr. Fleming’s Petition to Revoke Acknowledgement of Paternity, because Mr. Fleming did not meet his burden of proving by clear and convincing scientific evidence that he is not the biological father of the minor child. Mr. Fleming responds that he did not have a burden of proof to meet, because this matter did not go to trial and Ms. Armant stipulated that she would consent to a judgment in Mr. Fleming’s favor if a blood test proved that he is not the child’s father.

Mr. Fleming filed an Amended Petition seeking to revoke his acknowledgement of paternity under LSA-R.S. 9:406(B)(1), which provides in pertinent part:

.... a person who executed an authentic act of acknowledgement may petition the court to revoke such acknowledgement only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.

In the present case, the record is devoid of any evidence to support Mr. Fleming’s Petition to Revoke Acknowledgment of Paternity. There was no testimony or evidence presented to establish that Mr. Fleming is not the biological father of the child. As stated above, clear and convincing evidence is required under LSA-R.S. 9:406(B) for the court to order that an acknowledgement of paternity is revoked. Although Ms. Armant stipulated that she would sign a consent judgment if the DNA test results revealed that Mr. Fleming was not the L,father, and thus, the requirements of LSA-R.S. 9:406(B) would not apply, there is no testimony or evidence in the record to establish the results of the DNA testing.

At the hearing on October 12, 2011, counsel for Mr. Fleming indicated that Mr. Fleming submitted to a DNA test and the analysis and results revealed that he is not the child’s father. The curator for the minor child stated that it was her “understanding” that two DNA tests have confirmed that Mr. Fleming is not the child’s father. In her reasons for judgment, the trial judge stated in pertinent part:

At Ms. Armant’s contempt hearing, counsel for Mr. Fleming and court appointed counsel for the minor child stated on the record that they received and reviewed the DNA test results and that Mr. Fleming was definitely excluded from being the minor child’s father.

However, the statements of counsel for Mr. Fleming and the curator for the minor child are not evidence, and they are insufficient to prove the results of the DNA testing.

Mr. Fleming contends that he is not the father of the minor child at issue. That may be the case. However, the record before us contains no evidence to substantiate his claim. This Court cannot rely on statements of counsel alone in this matter. The record reveals that Ms. Armant did not consent to the revocation of Mr. Fleming’s acknowledgement of paternity. Further, there is no evidence in the record to establish that DNA testing revealed that Mr. Fleming is not the father of the child. Therefore, the record does not show that Ms. Armant was required to consent to the revocation, as per the stipulation.

Accordingly, we find that the trial judge erred by granting Mr. Fleming’s Petition to Revoke Acknowledgement of Paternity and we reverse and vacate the October 12, 2011 judgment, because: 1) Mr. Fleming did not present clear and convincing evidence that he is not the father of the minor child under LSA-R.S. 9:406(B); 2) Ms. Armant did not consent to the judgment in this case; and 3) there 17is no evidence that Ms. Armant was required to consent in accordance with the stipulation of the parties.

In her third argument on appeal, Asiann Armant contends that the trial judge erred by finding her to be in contempt of court and ordering her to pay court costs and attorney fees. She claims that since no DNA evidence was ever provided to the Court to establish that Mr. Fleming is not the father of the child, she was under no legal obligation to sign a consent judgment based merely on allegations of DNA testing results. Mr. Fleming responds that the trial judge was correct to find Ms. Armant in contempt for failing to sign the consent judgment and notes that Ms. Armant has not alleged that the DNA test results prove Mr. Fleming is the father.

In her reasons for judgment, the trial judge found that Ms. Armant was guilty of constructive contempt of court for willfully disobeying a lawful judgment. She found that Ms. Armant intentionally and purposefully failed to abide by the March 31, 2011 judgment, in which she agreed to abide by the results of the court-ordered DNA test, without justifiable cause.

LSA-C.C.P. art. 224(2) provides that “willful disobedience of any lawful judgment, order, mandate, writ, or process of the court,” constitutes constructive contempt of court. To find a person guilty of constructive contempt, the trial court must find that he or she violated the order of court intentionally, knowingly, and purposefully, without justifiable excuse. Parish of Jefferson v. Lafreniere Park Foundation, 98-345, p. 8 (La.App. 5 Cir. 9/15/98), 720 So.2d 359, 364, writ denied, 98-2598 (La.10/28/98), 723 So.2d 965.

The party seeking contempt must show that the alleged offender willfully disobeyed an order of the court prior to the contempt rule. Chauvin v. Chauvin, 46,365, p. 6 (La.App. 2 Cir. 6/22/11), 69 So.3d 1192,1197; Casey v. Casey, 02-0246, p. 7 (La.App. 4 Cir. 5/22/02), 819 So.2d 1108, 1113. A person charged 18with committing a constructive contempt of court may be found guilty thereof and punished therefor only after a trial by the judge of a rule to show cause why he should not be adjudged guilty of contempt and punished accordingly. Pulley v. Pulley, 587 So.2d 116,119 (La.App. 2 Cir.1991); LSA-C.C.P. art. 225(A).

In the present case, Mr. Fleming filed the Rule for Contempt against Ms. Armant and it was his burden to prove that she willfully disobeyed the prior stipulation whereby she agreed to sign a consent judgment if the DNA testing revealed that Mr. Fleming was not the father of her child. However, Mr. Fleming did not formally introduce either testimonial or documentary evidence tending to prove Ms. Armant’s willful disobedience or lack of a justifiable excuse for failing to sign the consent judgment. Mr. Fleming cannot rely on a colloquy between the court and counsel for Mr. Fleming or the curator to establish that the DNA test excluded Mr. Fleming as the father or to prove Ms. Armant’s intent, knowledge, or purpose. It is simply not evidence. A finding of willful disobedience on the basis of a total absence of proof is clearly erroneous. Riley v. Pennix, 442 So.2d 563, 565 (La.App. 1 Cir.1983).

Accordingly, because no evidence was presented to establish that Ms. Armant was guilty of constructive contempt, we reverse the trial court’s finding of contempt and the ruling ordering Mr. Armant to pay court costs and $500.00 in attorney fees to Mr. Fleming’s counsel and the curator.

In her fourth argument on appeal, Ms. Armant asserts that the trial judge failed to follow the law, maintain the impartiality and integrity of the case, or maintain the confidence of the public, in violation of the Constitutional rights of Ms. Armant and the minor child. In support of her claim, Ms. Armant com plains that the curator for the minor child was not present at the September 19, 2011 shearing, but the trial judge’s reasons for judgment indicate that the curator was present and stated that she reviewed the results of the DNA test, which excluded Mr. Fleming as the father. Ms. Armant further contends that the trial court failed to enforce various 24th Judicial District Court Rules of Court and Louisiana Rules of Professional Conduct by allowing Mr. Fleming’s attorney and the curator to testify in open court as to their

“knowledge of DNA evidence” and allowing Mr. Fleming’s attorney to pressure Ms. Armant, under the threat of monetary loss, into signing a consent judgment.

We note that Ms. Armant’s quote from the trial judge’s reasons for judgment is not accurate. The trial judge did not state that the curator was present at “the September 19, 2011 contempt hearing” before the domestic hearing officer. Rather, the trial judge simply indicated that she was present at the contempt hearing. Presumably, the trial judge was referring to the October 12, 2011 contempt hearing at which the curator stated on the record that it was her understanding that the DNA test results excluded Mr. Fleming as the father.

This is a court of review, and this assignment of error does not present a reviewable issue for appeal. Nevertheless, we have carefully reviewed the entire record, and we find no merit in Ms. Armant’s remaining assertions against the trial judge and claims of Constitutional violations.

DECREE

For the foregoing reasons, we reverse and vacate the October 12, 2011 judgment granting Mr. Fleming’s Petition to Revoke Acknowledgement of Paternity. We also reverse the trial court’s finding that Ms. Armant was in contempt of court and the ruling ordering her to pay court costs and attorney fees. We remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . The defendant’s first name is spelled "As-ann” in the petition and other pleadings in the record. However, in the defendant's brief and some of the pleadings filed by her in the trial court, she spells her first name "Asiann.”

      . We note that Ms. Armant was present at the hearing in this case, unlike the defendant in Riley v. Pennix, However, neither Ms. Armant nor any other witness was called to testify in this case.


author: JUDE G. GRAVOIS Judge.

text:
    Robert J. LORD v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 12-CA-53.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Ryan P. Reece, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Jennifer Del Murray, Attorney at Law, Louisiana Department of Public Safety, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS Judge.

^Appellant, the Louisiana Department of Public Safety and Corrections (the “Department”), appeals a judgment that granted the plaintiff, Robert J. Lord’s, Petition for Writ of Mandamus, ordering that his driving privileges be reinstated. On appeal, the Department argues that the trial court erred in denying its peremptory exception of no right of action, in allowing the mandamus action to go forward, and for ruling in favor of plaintiff.

We find that plaintiffs cause of action for judicial review of the Department’s suspension of his driver’s license was per-empted at the time he filed his Petition for Writ of Mandamus. Accordingly, we reverse the judgment of the trial court and dismiss plaintiffs Petition for Writ for Mandamus, with prejudice.

FACTS AND PROCEDURAL HISTORY

On October 11, 2011, plaintiff filed a Petition for Writ of Mandamus naming the Department as the defendant, alleging that on September 20, 2011, he received a letter from the Department (dated and mailed on September 6, 2011) notifying |shim that his driving privileges were suspended for one year until September 5, 2012 as a result of his alleged conviction on November 9, 2004 in the State of Florida for driving while intoxicated. Such suspension was made pursuant to LSA-R.S. 32:414. The letter plaintiff received from the Department, a copy of which was attached to his petition, included the following notice:

You may present evidence challenging the legality of the suspension and/or disqualification by filing a petition in the District Court in the Parish where you reside, -within 30 days of the date of this notice.

Citing the time provisions of LSA-R.S. 32:414(G), plaintiff in his mandamus petition argued that his suspension under this statute had long since commenced and run. Alternatively, he argued that he was entitled to the immediate reinstatement of his driving privileges because more than one year had elapsed since the date of his alleged conviction in Florida, citing Carroll v. La. Dept, of Public Safety, 94-444 (La.App. 3 Cir.1994), 647 So.2d 603.

The trial court set a hearing on plaintiffs mandamus petition on October 27, 2011. The Department did not file any responsive pleadings. Following the hearing, the trial court ruled from the bench that plaintiff was entitled to the immediate reinstatement of his driving privileges. This appeal by the Department followed.

On appeal, the Department argues that the trial court erred in denying its peremptory exception made in open court. The Department also argues that the trial court erred in allowing the mandamus petition to be heard, and for ruling in plaintiffs favor on the merits.

^ANALYSIS

In its first assignment of error, the Department argues that the trial court erred in denying its peremptory exception of no right of action based on peremption, on the basis that plaintiff failed to seek judicial review of the order suspending his driver’s license within the thirty-day time period provided for in LSA-R.S. 32414(F)(4).

As noted above, the Department did not file any exceptions or other written responsive pleadings in the trial court. It did urge orally, however, an exception of peremption at the hearing held in this matter. An exception, as a means of defense used to defeat the demand, must be in written form and comply with the forms of pleadings. LSA-C.C.P. arts. 921-924; T.P. Homes, Inc. v. Taylor, 08-392 (La.App. 5 Cir. 10/28/08), 1 So.3d 507. Even if the orally-made exception of peremption was not properly before the trial court or considered by it, we find merit to the Department’s contention that the matter is perempted as a matter of law. Peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment. LSA-C.C. art. 3460. Thus, being empowered to supply the exception of peremption on our own motion at any time prior to final judgment, we make the following findings and conclusions that require the reversal of the trial court’s judgment under review.

Paragraph F(4) of LSA-R.S. 32:414 states that a person receiving a notice of suspension “shall have the right to file an application within thirty days thereafter for a hearing before the district court of the parish in which the applicant resides” ... “to determine whether the person is entitled to a license or is subject to | ^suspension, cancellation, or revocation of license under the provisions of this Chapter.” Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. LSA-C.C. art. 3458. Peremption may not be renounced, interrupted, or suspended. LSA-C.C. art. 3461. In Simmons v. La. Dept, of Public Safety & Corrections, 04-102 (La.App. 3 Cir. 5/12/04), 872 So.2d 650, the Third Circuit determined, after a thorough analysis, that the thirty-day time period provided for in LSA-R.S. 32:414(F)(4) was peremptive, and that Mr. Simmons’s petition to reinstate his driver’s license was perempted where he failed to seek judicial review during the thirty-day time period. We likewise find that the thirty-day time period provided for in LSA-R.S. 32:414(F)(4) is peremptive.

In his mandamus petition, plaintiff admitted that he received the statutory suspension notice as per LSA-R.S. 32:414(F)(3) on September 20, 2011, but offered no explanation as to why he delayed filing his mandamus petition past the thirty-day time period. He merely offered that he was entitled to file a mandamus proceeding because under LSA-R.S. 32:414(G), the period of suspension applicable to his situation had long since commenced and run. Plaintiff seemed to argue, and the trial court appeared to hold, that his use of the mandamus action cured his failure to file his petition for judicial review within the thirty-day time period. He also argues that LSA-R.S. 32:414 does not specify whether an ordinary proceeding or a summary proceeding is to be used to challenge a suspension issued under this statute.

Plaintiff is correct in his argument that the statute does not specify whether an ordinary proceeding or a summary proceeding is to be used to challenge a | ^suspension issued under LSA-R.S. 32:414. The language contained in paragraph (F)(4) of that statute, however, suggests that the judicial review could be had by use of a summary proceeding: “[the] court is vested with jurisdiction to set the matter for hearing in open court upon ten days’ written notice to the department....” Plaintiff appears to lump all “summary” and “mandamus” proceedings together. There are many different kinds of summary proceedings, however, of which mandamus is only one. The fact that LSA-R.S. 32:414 seems to allow the use of summary proceedings for judicial review of a license suspension does not equate to authorizing the use of a mandamus proceeding therefor.

A mandamus proceeding is a specific type of summary proceeding to which specific rules apply that do not apply to all summary proceedings. “A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice;.... ” LSA-C.C.P. art. 3862. “A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law,-” LSA-C.C.P. art. 3863. Mandamus is an extraordinary remedy which is used sparingly by the courts to compel something that is clearly provided by law, and only where it is the sole available remedy or where the delay occasioned by the use of any other remedy would cause an injustice. Mandamus lies only to compel performance of purely ministerial duties. Jurisprudence is clear that such writ may not issue to compel performance of an act which contains any element of discretion, however slight. Webre v. Wilson, 95-1281, p. 9-10 (La.App. 1 Cir. 4/4/96), 672 So.2d 1124, 1130. Further, mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty which ought to be performed. It never issues in doubtful cases. Thornton ex rel. Laneco | Construction Systems, Inc. v. Lanehart, 97-1995 (La.App. 1 Cir. 12/28/98), 723 So.2d 1118, 1122, writ denied, 99-0276 (La.3/19/99), 740 So.2d 121.

Plaintiff has cited no authority for the proposition that he may overcome the peremptive time period set forth in LSA-R.S. 32:414(F)(4) by filing a mandamus petition for judicial review of the notice of his driver’s license suspension after the peremptive time period has run. As noted above, peremption may not be interrupted, suspended, or renounced. Further, plaintiffs entitlement to reinstatement of his driver’s license based upon the alleged running of any of the time periods set forth in paragraph (G) of LSA-R.S. 32:414 is not a ministerial duty of the Department or a clear and specific legal right that plaintiff, upon the face of the petition, is entitled to have enforced. Nor is plaintiffs right to judicial review of his suspension a ministerial duty of the Department if the request for review is filed after the peremptive time period has run.

Accordingly, we find that, because he failed to file within the time period provided for in LSA-R.S. 32:414(F)(4), plaintiffs cause of action for judicial review of the suspension of his driver’s license was per-empted at the time he filed his Petition for Writ of Mandamus.

CONCLUSION

For the above reasons, we reverse the judgment of the trial court and dismiss, with prejudice, plaintiffs Petition for Writ of Mandamus.

REVERSED

      . LSA-R.S. 32:414(G) states:
      G. Any period of suspension or revocation under this Chapter shall begin upon receipt by the department of the operator’s license or proof of its loss, upon the expiration of the operator's license, or thirty days after the date the notice of suspension is mailed to the licensee by the department, whichever occurs first.

      . In brief, the Department characterizes the exception as an exception of no right of action
        based upon peremption. However, the exception pleading peremption is properly an exception of no cause of action, or even a peremptory exception of prescription, not an exception of no right of action. See Bardwell v. Faust, 06-1472 (La.App. 1 Cir. 5/4/07), 962 So.2d 13. Given that no exception was actually filed in this case, this distinction makes no difference in this Court’s analysis of this case, however, and is merely mentioned here for informational purposes,

      . Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings. LSA-C.C.P. art. 2591.

        . See LSA-C.C.P. art. 2592 for a list of the many different kinds of summary proceedings.


author: PICKETT, Judge.

text:
    Queen ALEXANDER, et ux. v. Zachary LABORDE, et al.
    No. 11-1411.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Brian M. Caubarreaux, Brian Caubar-reaux & Associates, Marksville, LA, for Plaintiffs/Appellees, Joseph Alexander, Queen Alexander.
    Staci Knox Villemarette, Cloyd, Wim-berly & Villemarette, L.L.C., Attorney at Law, Lafayette, LA, for Defendants/Appellants, Zakery Laborde, State Farm Mutual Automobile Insurance Company.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

|, The defendants appeal the trial court’s grant of a judgment notwithstanding the verdict and increase of damages in favor the plaintiff. For the reasons discussed below, the judgment is amended and, as amended, affirmed.

FACTS

On June 30, 2009, Queen Alexander was stopped on La. Hwy. 1 in Marksville, waiting to make a left turn, when she was rear-ended by a vehicle driven by Zakery La-borde. Ms. Alexander was seventy-three years of age at the time and had suffered back and neck pain for many years before the accident. She sued Mr. Laborde and State Farm Mutual Automobile Insurance Company (State Farm), which insured the vehicle driven by Mr. Laborde when the accident occurred, contending the accident caused an aggravation of her pre-existing physical problems and a disc herniation at L4-5 that resulted in spinal stenosis that requires surgery. She sought to recover damages associated with the aggravation of her pre-existing problems and with the surgery.

At trial on June 22, 2011, the defendants stipulated that Mr. Laborde was solely at fault in causing the injury and that a policy of liability insurance issued by State Farm, which was in full force and effect at the time the accident occurred, provided insurance for the accident. After deliberating, the jury returned a verdict in favor of Ms. Alexander and awarded her the following damages:

Medical Expenses to Date of Trial $21,586.31

Future Medical Expenses 110,619.00

Past Pain and Suffering 12,000.00

Future Pain and Suffering 25,000.00

Past Mental Anguish 2,000.00

Future Mental Anguish 2,000.00

Loss of Enjoyment of Life 0.00

Future Loss of Earnings 52,000.00

TOTAL $225,205,311

|2Ms. Alexander filed a Motion for Judgment Notwithstanding the Verdict (JNOV) and alternatively a Motion for New Trial and/or Additur, asserting the jury’s award of general damages was grossly inadequate in light of the evidence presented at trial. The trial court granted a JNOV and increased Ms. Alexander’s total general damage award from $93,000.00 to $300,000.00. Specifically, the trial court increased the jury’s awards for past and future physical pain and suffering from $37,000.00 to $250,000.00, past and future mental anguish from $4,000.00 to $25,000.00, and loss of enjoyment of life from $0 to $25,000.00. Mr. Laborde and State Farm appealed.

ASSIGNMENTS OF ERROR

Mr. Laborde and State Farm assign the following errors:

(1) The Trial Court erred by awarding future surgery costs to Queen Alexander.
(2) The Trial Court erred by granting a JNOV in favor of Queen Alexander.

DISCUSSION

Ms. Alexander, a school teacher, testified she suffered from back pain from the time she was young and worked in the cotton fields on her family’s farm. She further testified that she injured her back in December 1992 when she fell out of a chair while teaching. She continued working until June 1994, when she retired due to continued back and leg pain. She returned to work, however, in 1998 and was working at the time of trial.

The record established that Ms. Alexander persevered through many years of suffering back pain and that she also suffered neck pain on occasion but to a lesser extent than back pain. For many years, Ms. Alexander sought chiropractic treatment to relieve her back pain. After the June 2009 accident, Ms. Alexander increased her chiropractic treatment with Dr. Harold Travis Lacassin and used nonnarcotic pain killers to alleviate the increased pain she suffered as a result of the accident.

|aDr. Lacassin began treating Ms. Alexander in 2004, when he acquired her prior chiropractor’s practice. On her first visit after the accident, Ms. Alexander complained of severe back and neck pain; she also complained of pain in her right arm and left leg. She rated her pain level at eight to nine on a scale of ten. On her visit prior to the accident, she had rated her pain level at two to three on a scale of ten.

Dr. Lacassin testified that during his years of treating Ms. Alexander, he was able to maintain her pain level fairly consistently at a level she found acceptable that allowed her to continue working and performing her normal daily activities. He explained that while she occasionally had flare-ups when her pain levels increased and she required more frequent treatment for a period of time, her pain would subside.

Immediately after the accident, Ms. Alexander complained to Dr. Lacassin that her neck was her major source of pain. With treatment, her complaints of neck pain lessened, but Dr. Lacassin testified her neck never returned to its pre-accident status. After her neck pain lessened, Ms. Alexander’s complaints of back pain increased. Initially, she responded well to Dr. Lacassin’s treatment for her back. She regressed, however, and her back worsened. Dr. Lacassin testified that after the accident, Ms. Alexander complained of back pain more consistently and rated her pain at a higher level than she did before the accident. He was concerned and recommended an MRI of her neck and back. After reviewing the MRI, Dr. Lacassin recommended Ms. Alexander obtain a second opinion.

Ms. Alexander sought a second opinion from Dr. Louis Blanda, an orthopedic surgeon. Dr. Blanda testified Ms. Alexander’s MRI showed arthritic changes in her low back and a herniated disc at L4-5 that combined to create spinal stenosis. According to Dr. Blanda, the MRI also showed arthritic changes at L5-S1, a bulging disc and degeneration in her neck, and three herniated discs in her neck. A CAT scan showed the spinal stenosis at L4-5 was moderate to severe.

|4Pr. Blanda first recommended conservative treatment for Ms. Alexander. He later ordered a myelogram with CT scan because her complaints worsened and she reported trouble walking. Dr. Blanda testified the myelogram showed the compression at L4-5 was worse than the MRI revealed. Ms. Alexander continued to complain of right and left leg pain, and an EMG revealed right-sided SI radiculopa-thy and L5 changes on both the right and left. Dr. Blanda testified the condition was severe and needed to be addressed surgically, explaining it was progressive and, without surgery, could result in severe neurological problems, including paralysis. He stated a decompression and double fusion at L4-5 was needed.

Dr. Blanda opined that the disc hernia-tions in her neck and at L4-5 were caused by the accident. He based his opinion on Ms. Alexander’s history, Dr. Lacassin’s outline of her complaints during the five years before the accident, and the medical records of his partner, Dr. John Cobb, who treated Ms. Alexander in 1998. Dr. Cobb’s records included a 1993 MRI that showed spondylosis at L5-S1 and a slight bulge at that level but nothing at L4-5.

Dr. Stanley Foster, also an orthopedic surgeon, examined Ms. Alexander at State Farm’s request. Dr. Foster agreed that Ms. Alexander’s back and neck conditions were aggravated by the accident and that she needed surgery. He testified spinal stenosis is a complex problem that results from the aging process and that changes associated with stenosis do not occur in an accident. He explained that he did not relate the herniation at L4-5 to the accident because of the fifteen-year interim between the MRI ordered by Dr. Cobb and her 2010 MRI. He further explained that if the disc herniation at L4-5 was acute, there would be a “whiteness” or high intensity on the MRI in that area. In his opinion, there was no such whiteness on the MRI; therefore, the changes were degenerative, not acute. Dr. Foster reluctantly agreed, however, that the aggravation of Ms. Alexander’s back condition “could be” the catalyst for the surgery and that she might not ever need surgery otherwise.

| ^Future Surgery Costs

The defendants assert the jury’s award of future surgery costs constitutes error for two reasons: (1) the jury believed Ms. Alexander’s attorney’s assertion that taxpayers would pay for her surgery through Medicare if State Farm did not pay her for it, and (2) Ms. Alexander failed to establish by a preponderance of the evidence that the surgery was related to the injuries she sustained in the accident.

The defendants did not object to Ms. Alexander’s counsel’s statements regarding Medicare and Medicare Set-Asides and her claim for future medical expenses. Their failure to object when the argument was made resulted in a waiver of this complaint for appeal. Brown v. State ex rel. LSU Med. Ctr. Health Care Servs. Div., 08-273 (La.App. 3 Cir. 12/10/08), 998 So.2d 367, writ denied, 09-72 (La.3/6/09), 3 So.3d 491. Moreover, the trial court also explained that any amount awarded to Ms. Alexander for future medical treatment “may be required to be deposited into a special account or Medicare set[-]aside account as determined by Medicare” in order to protect Medicare’s interest in the event she did undergo surgery. The defendants did not object to the jury instructions either. For these reasons, this assignment lacks merit.

The defendants next argue the jury’s award of future medical expenses for the surgery recommended by Dr. Blan-da was eiToneous because while Ms. Alexander testified she planned to have the surgery, she had not scheduled the surgery and had not made a deposit for the surgery. They also urge her testimony that she had notified the school board she did not plan to work the next school year to have the surgery performed was not credible because the written notice she claimed she delivered sent to the school board was not in her employee file.

To prove she was entitled to an award of future medical expenses, Ms. Alexander had to show more probably than not that the expenses were necessitated by the accident, the probable cost of the expenses, and that they would be |Bincurred. Guidry v. Allstate Ins. Co., 11-517 (La.App. 3 Cir. 12/21/11), 83 So.3d 91, writ denied, 12-225 (La.3/30/12), 85 So.3d 121.

Dr. Blanda testified surgery is necessary to prevent a more serious condition from developing that could cause paralysis; he also testified the cost of the surgery and the required follow-up care is $110,619.00. Dr. Foster agreed the surgery was necessary. He also agreed, albeit reluctantly, that the surgery “could be” necessitated by the aggravation of Ms. Alexander’s preexisting condition and that the aggravation was caused by the accident. The doctors’ testimony satisfied the first prong of Ms. Alexander’s burden of proving she was entitled to recover medical expenses.

Whether Ms. Alexander will have surgery and incur the costs of it was a credibility determination for the jury. Credibility evaluations are for the fact finder and can be reversed only if the evidence shows they are manifestly erroneous or clearly wrong. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La.7/1/11), 65 So.3d 1218. Unless “documents or objective evidence so contradict the witness’s story, or the story is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witnesses’s story,” a factfin-der’s determination based on a credibility determination “can virtually never be manifestly erroneous or clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).

We do not find Ms. Alexander’s failure to schedule the surgery, to make a deposit on the surgery, or to prove she had provided written notification to the School Board of her intent to take one year off of work to have the surgery sufficient to render her testimony so internally inconsistent or implausible on its face that a reasonable fact finder would not accept her testimony as true. Moreover, although the defendants went to great lengths to show the jury that Ms. Alexander was not credible, the jury did not agree. Accordingly, we find no manifest error with the jury’s conclusion that the surgery was necessitated by the accident and that Ms. Alexander intended to have the recommended surgery.

| ./Judgment Notwithstanding the Verdict

State Farm next urges the trial court erred in granting Ms. Alexander a JNOV. In Lastrapes v. Progressive Security Insurance Co., 10-51, p. 5 (La.11/30/10), 51 So.3d 659, 662 (quoting Joseph v. Broussard Rice Mill, Inc., 00-628, 08-770, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99), the supreme court explained the principles to be applied in determining whether JNOV was appropriate:

JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact.

The criteria used to determine whether a JNOV should be granted are the same criteria used to determine whether a trial court’s grant of JNOV was improper. Forbes v. Cockerham, 08-762 (La.1/21/09), 5 So.3d 839. Hence, we must determine whether the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. Id. If we find that reasonable persons could reach a different conclusion, the trial court erred in granting the motion, and the jury verdict should be reinstated. Id.

After finding the JNOV was appropriate, the trial court had “to make an independent assessment of the damages and award a proper amount of compensation under the facts of the particular case.” Anderson v. New Orleans Public Serv., Inc., 583 So.2d 829, 834 (La.1991). An appellate court can only disturb a trial court’s assessment of damages if the record clearly establishes that it abused its discretion in | ^making its assessment. Id. (citing Coco v. Winston hid., Inc., 341 So.2d 332 (La.1976)).

As the trial court observed, the jury’s damage awards for future medical expenses and future lost wages show it believed that the medical testimony established, at the least, that the accident aggravated her pre-existing medical condition such that she now needs surgery and that Ms. Alexander will have the surgery. Based on this determination, the trial court concluded a JNOV was warranted because the jury’s damage awards were abusively low. We have considered the entire record and find no error with the trial court’s conclusions that the jury’s general damage awards were abusively low; however, we do find the trial court’s award of $300,000.00 to be an abuse of discretion in light of the pre-existing condition of Ms. Alexander’s neck and back. Therefore, we must now determine the lowest acceptable award of general damages under the particular facts. Guillory v. Lee, 09-75 (La.6/26/09), 16 So.3d 1104.

We are aware of our determination in Smoot v. Hernandez, 08-1121 (La.App. 3 Cir. 3/4/09), 6 So.3d 352, that an award of $250,000.00 to a plaintiff who had preexisting back problems and suffered a two-level disc herniation for which she had a lumbar fusion was not an abuse of discretion. Having reviewed the facts of both cases, we find Smoot is not indicative of what is an appropriate award in this case.

In Smoot, there was no doubt the herniated discs were caused by the subject accident and alone necessitated the surgery. That is not the case here. Dr. Blanda testified that the herniated disc at L4-5 exacerbated Ms. Alexander’s pre-existing problems and made the pre-existing steno-sis progress more rapidly than it would have otherwise. Additionally, while the plaintiff in Smoot had pre-existing back and neck problems, the record there did not show degeneration in her neck and back as extensive as Ms. Alexander’s.

19We also reviewed damage awards in Deville v. Frey, 10-1290 (La.App. 3 Cir. 5/4/11), 63 So.3d 435, writ denied 11-1157 (La.9/23/11), 69 So.3d 1158, and Jones v. Martinez, 07-24 (La.App. 3 Cir. 10/24/07), 967 So.2d 1205. In Deville, another panel of this court also distinguished Smoot and determined an award of $100,000.00 for the aggravation of a pre-existing back injury and a shoulder injury was appropriate. In Jones, the trial court’s award of $70,000.00 in general damages for injuries sustained in an accident that aggravated a pre-exist-ing injury and hastened the degeneration of the plaintiffs back condition to the extent that back surgery was required was found to be inadequate. The panel determined $125,000.00 was the lowest award reasonable under the circumstances.

Having considered these similar cases, we find $125,000.00 is the lowest acceptable award for general damages in light of Ms. Alexander’s pre-existing back and neck problems and her need for surgery.

DISPOSITION

Finding no error with the trial court’s grant of judgment notwithstanding the verdict on the issue of damages, we amend the trial court’s award of general damages from $300,000.00 to $125,000.00. All costs associated with this appeal are assessed to Zakery Laborde and State Farm Mutual Automobile Insurance Company.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Mr. Laborde’s first name was misspelled as "Zachary” in Ms. Alexander’s Petition for Damages. We use the proper spelling of his name herein.


author: GUIDRY, J.

text:
    Alvin D. SINGLETARY v. CITY OF SLIDELL.
    No. 2011 CA 1538.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.
    Rehearing Denied Aug. 15, 2012.

      Alvin D. Singletary, Slidell, LA, Plaintiff/Appellant Pro Se.
    Patrick J. Berrigan, Bryan D. Haggerty, Slidell, LA, for Defendant/Appellee City of Slidell.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   GUIDRY, J.

|aPlaintiff, Alvin D. Singletary, appeals a judgment of the trial court denying his petition for declaratory judgment, temporary restraining order, preliminary injunction and permanent injunction. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Alvin D. Singletary served as a councilman at large for the City of Slidell from 1978 until he retired on his sixtieth birthday in September 2002. While serving as a councilman, Singletary participated in the City’s health insurance program, administered by Benefit Management Services, and upon retirement, elected to continue to participate in the City’s health insurance plan. At the time of Single-tary’s retirement, section 21-21 (b)(1) of the Code of Ordinances of the City of Slidell, related to health insurance participation and employer contributions, provided:

Retired city employees and retired elected city officials shall participate in the city’s health insurance program under the following conditions:
(1) A city employee or city elected official who:
a. Separates from city service after a minimum of ten years of service;
b. Within 18 months after such separation receives retirement benefits under any retirement plan authorized by the city;
c. Participated in the city’s health insurance plan for a minimum of 12 months immediately prior to such separation; and
d. Participates in the city’s health insurance plan from the time of separation to the time retirement benefits are received;
may elect to continue to participate in the city’s health insurance plan. The city shall pay 100 percent of the cost of the individual or family coverage elected by the former employee or elected official beginning at the time retirement benefits are received.

lain accordance with Section 21-21, upon his retirement, Singletary elected to continue to participate in the City’s health insurance plan with family coverage, and the City has paid 100 percent of the cost of that coverage.

On August 26, 2008, the City adopted ordinance number 3498, which amends Section 21-21 relative to health insurance coverage for retirees by adding subsection (3), which provides:

Each City retiree shall, upon reaching the age of sixty five, apply for Medicare coverage Parts A and B. The City shall provide Medicare Advantage coverage at no cost to the retiree. Those retirees who are ineligible for Medicare shall be allowed to continue participation in the City’s health insurance program to the same extent as prior to reaching the age sixty five.

Thereafter, on October 13, 2008, Ben O. Morris, Mayor of Slidell, sent a letter to all City retirees, informing retirees that the City was making changes to its medical plan, including moving all Medicare eligible retirees and/or their spouses to a Medicare Advantage Plan. The letter informed these retirees that they will be required to choose from three Medicare Advantage Plans through Humana, and that this change will go into effect on January 1, 2009. A fact sheet was attached to the letter, indicating that the retiree must be enrolled in Medicare Part A and Part B in order to participate in the Humana Medicare Advantage Plan.

On May 14, 2009, Singletary filed a petition for declaratory judgment, seeking judgment declaring that ordinance number 3493 is not applicable to him and that he has a vested right in his retirement health insurance benefit, which cannot be impaired or reduced, and that he and his family are entitled to continue to participate in the City’s health insurance plan with Benefit Management Services at no cost. Singletary subsequently filed a supplemental and amending petition seeking a temporary restraining order, preliminary injunction and permanent injunction prohibiting the City from removing Singletary from his health insurance coverage with the City through Benefit Management Services.

| .(Following a hearing on the rule for preliminary and permanent injunction, the trial court signed a judgment in favor of the City, denying the preliminary writ of injunction prayed for by Singletary to restrain the City during the pendency of the proceedings from removing petitioner from his coverage by the City’s health insurance plan through Benefit Management Services and dismissed his rule. Singletary filed a motion for new trial, which was denied. The trial court subsequently conducted a trial on the merits of Singletary’s request for a permanent injunction, following which the court signed a judgment in favor of the City, denying Singletary’s claim with prejudice. Singletary now appeals from this judgment.

DISCUSSION

A contract is formed by the consent of the parties established through offer and acceptance. Unless the law prescribes a certain formality for the intended contract, offer an acceptance may be made orally, in writing or by action or inaction that under the circumstances is clearly indicative of consent. La. C.C. art. 1927. Nearly every state has determined, using precepts similar to our civilian principles, that when an employer promises a benefit to employees, and employees accept by their actions in meeting the conditions, the result is not a mere gratuity or illusory promise but a vested right in the employee to the promised benefit. Knecht v. Board of Trustees for State Colleges and Universities and Northwestern University, 591 So.2d 690, 695 (La.1991).

In Section 21 — 21(b)(1), the City offers to retired city employees and retired elected city officials participation in the city’s health insurance program if certain conditions are met. These conditions include: separation from City service after a minimum of ten years of service; receipt of retirement benefits under any retirement plan authorized by the City within 18 months of separation from City service; participation in the City’s health insurance plan for a minimum of 121 ¿months immediately prior to such separation; and participation in the City’s health insurance plan from the time of separation to the time retirement benefits are received. If these conditions are met, the retired City employee or retired elected City official may elect to continue to participate in the City’s health insurance plan, and the City shall pay 100 percent of the cost of the individual or family coverage elected by the former employee or elected official beginning at the time retirement benefits are received.

In the instant case, Singletary, who met the conditions set forth in Section 21-21, elected to continue to participate in the City’s health insurance plan with family coverage. Thereafter, the City continued to enroll Singletary on its health insurance plan administered by Benefit Management Services and paid 100 percent of the premium for Singletary’s family coverage. Accordingly, Singletary has a vested right to the promised benefit.

The City argues, and the trial court found, that although the City has a new plan, it is still carrying the expense for Singletary’s premium at 100 percent, and therefore, continues to provide the promised benefit. We disagree.

Medicare Advantage Plans, sometimes called “Part C” or “MA Plans,” are offered by private companies approved by Medicare. If you join a Medicare Advantage Plan, you still have Medicare, but you get your Part A (hospital insurance) and Part B (medical insurance) coverage from the Medicare Advantage Plan and not Original Medicare. All types of Medicare Advantage Plans cover emergency and urgent care, and must cover all of the services that Original Medicare covers, except hospice care. Medicare Advantage Plans may offer extra coverage and most include Medicare prescription drug coverage. However, each Medicare Advantage Plan can charge different out-of-pocket costs and can have different rules for how you get services (ie., whether you need a referral to see a specialist and whether you can only go to doctors, facilities, or suppliers that |fibelong to the plan for non-emergency or non-urgent care). Medicare & You, CMS (2012).

Further, 42 U.S.C. § 1395w-21(a)(l), regarding eligibility, election and enrollment in the Medicare + Choice program, provides that “each Medicare+Choice eligible individual ... is entitled to elect to receive benefits ... under this subchapter — (A) through the original medicare fee-for-ser-viee program under parts A and B of this subchapter, or (B) through enrollment in a Medicare + Choice plan under this part[.]”

Ordinance No. 3493, however, mandates that each city retiree apply for Medicare Part A and Part B coverage upon reaching the age of sixty-five, and that the City will provide Medicare Advantage coverage at no cost to the retiree. Retirees who are ineligible for Medicare, however, will be allowed to continue participation in the City’s health insurance program to the same extent as prior to reaching the age of sixty-five. A subsequent letter sent by the Mayor of Slidell to City retirees reiterates that Medicare eligible retirees and/or their spouses will be moved to a Medicare Advantage Plan effective January 1, 2009, and that they will be required to choose between three available Humana Medicare Advantage plans by that date.

Accordingly, unlike City employees who retire after August 26, 2008, the effective date of Ordinance No. 3493, Singletary did not “elect” to participate in a Medicare Advantage plan. Rather, he elected to continue to participate in the City’s health insurance plan, which was a traditional insurance plan, that upon reaching the age of sixty-five operated as supplemental insurance to his Medicare Part A. The City, pursuant to Ordinance No. 3493, is unilaterally moving Singletary, a Medicare eligible retiree, to a Medicare Advantage Plan and is conditioning the City’s continued payment of 100 percent of his coverage cost upon his enrollment in one of three Humana Medicare Advantage Plans. Not only 17is this in contravention of the federally recognized right of beneficiaries to freely decide the type of Medicare coverage desired by them, but it represents a material modification of the terms of the parties agreement, as contained in Section 21-21. Therefore, applying Ordinance No. 3493 retroactively impermissibly divests Singletary of his vested right to benefits.

Therefore, from our review of the record, we find that the trial court erred in concluding that even though the City has a new plan and is paying 100 percent of Singletary’s coverage cost, it is continuing to provide the coverage it has promised. Further, we find that the trial court abused its discretion in denying Single-tary’s claim for a declaratory judgment and permanent injunction.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and render judgment in favor of Singletary and against the City, finding that Singletary is entitled to continue to participate in the City’s health insurance plan administered by Benefit Management Services and ordering the City to allow Singletary to re-enroll in said plan effective immediately. All costs, in the amount of $850.25, are assessed to the City of Slidell.

REVERSED AND RENDERED.


author: CARTER, C.J.

text:
    Lauren Marino FRANCIS v. Jeffery Scott FRANCIS.
    No. 2011 CW 2116.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 2012.

      Vincent A. Saffiotti, Baton Rouge, LA, for Relators Lauren Marino Francis Kay and Shiraz K. Kay.
    Melanie Newkome Jones, Baton Rouge, LA, for Respondents Lawrence Marino and Paulette Marino.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

|2In this 'writ application, the mother of two minor children and their adoptive father challenge the family court’s denial of a peremptory exception raising the objection of no right of action as to the maternal grandparents’ petition for visitation with the children. For the reasons that follow, we grant the writ application, reverse the judgment of the family court, and render judgment sustaining the objection of no right of action and dismissing the maternal grandparents’ petition.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

It is alleged in the pleadings of record that Lauren Marino Francis Kay and Jeffery Scott Francis were married in March 1999. During the marriage, Mr. Francis adopted Lauren’s son from a prior relationship and the two had a daughter born of the marriage. The marriage ended in divorce by judgment signed March 30, 2009, with Lauren and Mr. Francis being awarded joint custody of the children. On May 9, 2009, Lauren married Shiraz K. Kay.

On August 11, 2010, Lauren’s parents, Lawrence and Paulette Marino, filed a petition to establish grandparents’ visitation rights in the ongoing custody proceeding between Lauren and Mr. Francis. After the Marinos’ petition was filed, but before Lauren was served, Mr. Francis’s parental rights were terminated by judgment of the Juvenile Court of East Baton Rouge Parish, and the children were adopted by Lauren’s new husband, Shiraz. Thereafter, Lauren excepted to the petition for grandparent visitation on the bases of no cause of action and no right of action. The family court denied the exceptions.

Lauren and Shiraz Kay (“the parents”) filed the present application for supervisory writs, seeking review of the family court’s denial of the peremptory [.^exception raising the objection of no right of action. We granted a writ of certiorari and now exercise our supervisory jurisdiction to consider the correctness of the family court’s decision.

DISCUSSION

Generally, an action can only be brought by a person having a real and actual interest that he asserts. La.Code Civ. Proc. Ann. art. 681. The function of a peremptory exception raising the objection of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Reese v. State, Dept. of Public Safety & Corrections, 03-1615 (La.2/20/04), 866 So.2d 244, 246. The exception assumes that the petition states a valid cause of action for some person and tests whether the plaintiff has an interest in judicially enforcing the right asserted. Louisiana State Bar Ass’n v. Carr and Associates, Inc., 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, 165, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292.

In this case, the Marinos seek visitation rights under Louisiana Civil Code article 136. Article 136 provides that under extraordinary circumstances, relatives by blood or affinity not granted custody of the children may be granted reasonable visitation rights when the court determines it to be in the children’s best interests. The parents contend, however, that because the children have been adopted by Shiraz, the exclusive legal authority for grandparent visitation with these children is Louisiana Children’s Code articles 1256 and 1264, which provide grandparents limited visitation rights to adopted children. It is undisputed that the Marinos do not fall within the class of persons to whom the Children’s Code articles grant a cause of action for grandparent visitation. Thus, if the parents’ assertion is correct that the Children’s Code articles govern this matter, the objection of no right of action must be sustained and the Marinos’ petition dismissed.

| Children’s Code article 1256 addresses the effect of a final adoption decree, stating:

A. Except as otherwise provided by Paragraph C of this Article, upon a final decree of adoption, the parents of the child whose rights have not been previously terminated by a surrender or a judgment of termination and all other blood relatives of the adopted child are relieved of all their legal duties and divested of all their legal rights with regard to the adopted child including the right of inheritance from the adopted child and his lawful descendents, and the adopted child and his lawful descendents are relieved of all legal duties and divested of all legal rights with regard to the parents and other blood relatives.
B. The right of the child to inherit from his parents and other blood relatives is unaffected by the adoption.
C. If the adoptive parent is married to a blood parent of the adopted child, the relationship of that blood parent and his blood relatives to the adopted child shall remain unaltered and unaffected by the adoption.
D.Under the circumstances and pursuant to the procedures authorized by Chapter 14 of this Title, grandparents may obtain limited visitation rights to the adopted child.

(Emphasis added.)

Here, the adoptive parent is married to the children’s mother, a blood parent of the adopted children. Article 1256 specifically provides that the relationship of the blood relatives to the adopted children remains unaltered and unaffected by the adoption. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of legislative intent. In re Clegg, 10-0323 (La.7/6/10), 41 So.3d 1141,1154. The family court correctly recognized that the clear and unambiguous language of Article 1256 does not foreclose any rights to visitation that grandparents may have pursuant to other authority, such as Civil Code article 136. Cf. McMillin v. McMillin, 08-502 (La.App. 3 Cir. 3/25/09), 6 So.3d 414, 418 (wherein the court was presented with a different factual situation than is evidenced here, but noted “[tjhough this court is well aware of the legal effects of an adoption, a subsequent adoption neither nullifies nor negates the |,^provisions of [Civil Code article] 136(B), which is the last legislative pronouncement addressed to that issue”). Thus, the parents’ argument that the Mar-inos’ petition must be dismissed because they do not have a right of action under Article 1256 is without merit.

The parents further contend the trial court erred in its determination that the Marinos have a right of action under Article 136, which pertinently provides:

A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.
B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.
C. In accordance with Paragraph B of this Article, extraordinary circumstances may include when a parent is addicted to a controlled dangerous substance.

Article 186 appears in the section of the Civil Code on child custody. Articles 181 through 137 comprise the entirety of the section on child custody. |„Laws on the same subject matter must be interpreted in reference to each other. La. Civ.Code Ann. art. 13. In accordance with this precept, we note that Article 131, the first article in the section, states the general principle that in a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child. Article 132 sets forth the standard of awarding custody to the parents. If it is determined that custody should not be awarded to either parent, Article 133 provides for the award of custody to a person other than a parent. Accordingly, in such a custody dispute, one nonparent is granted custody of the child and another nonparent is “not granted custody” of the child. Article 136B provides that certain categories of nonparents “not granted custody” of the child may be granted reasonable visitation rights.

It is presumed that every word, sentence, or provision in a law is intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. McGlothlin v. Christus St. Patrick Hospital, 10-2775 (La.7/1/11), 65 So.3d 1218, 1227-28. The judiciary is bound, if possible, to give effect to all parts of legislation and to construe no part thereof meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found. Id.

The possible award of visitation rights afforded by Article 136B is limited to a nonparent person not granted custody of the child. This qualifying language presupposes a custody dispute pursuant to Article 133, in which one nonparent person was granted custody and one nonparent person was not granted custody. Any other construction would render the phrase “not granted custody” meaningless, because it would exclude only those persons who have been granted |7custody, and those persons’ custodial rights encompass visitation. Cf. Cedotal v. Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433, 436.

In this case, the mother and adoptive father are the custodial parents. There has been no custody dispute in which the family court determined that the parents should not be awarded custody and custody was awarded to a nonparent pursuant to Article 133. Absent such, the Marinos do not meet the requirement of having not been granted custody of the children, and therefore do not belong to the class of persons to whom Article 136B grants the right of action for visitation. This construction is consistent with the United States Supreme Court’s pronouncements regarding a fit parent’s constitutionally protected fundamental right of privacy in child rearing, as well as the established legal principle that any rights of a nonpar-ent are ancillary to that of a fit parent. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Wood v. Wood, 02-0860 (La.App. 1 Cir. 9/27/02), 835 So.2d 568, 574, writ denied, 02-2514 (La.3/28/03), 840 So.2d 565.

CONCLUSION

For the foregoing reasons, the application for supervisory writs is granted and the judgment of the family court denying the peremptory exception raising the objection of no right of action is reversed. Judgment is rendered sustaining the peremptory exception raising the objection of no right of action and dismissing the Mari-nos’ petition to establish grandparents’ visitation rights.

WRIT GRANTED; JUDGMENT REVERSED AND RENDERED.

HIGGINBOTHAM, J., concurs.

      . Lauren also objected on the basis of non-joinder of an indispensable party, because the adoptive father was not a party to the proceedings. The family court dismissed that exception as moot since the adoptive father was added as a party by the grandparents' amended petition.

      . Paragraph D of Article 136 provides that in the event of a conflict between Article 136 and Louisiana Revised Statutes 9:344 or 345, the provisions of the statute shall supersede those of Article 136. Section 344 pertains to grandparent visitation rights in those sitúa-tions where a parent has died, is interdicted, or is incarcerated. It is undisputed that Section 344 does not govern the grandparents' petition for visitation in the instant matter as the facts do not involve a parent who is deceased, interdicted, or incarcerated. Section 345 pertains to appointment of an attorney to represent the child and is not relevant here.
      Thus, under the facts alleged herein, there is no conflict between Article 136 and Sections 344 or 345.

      . Article 136 appears in the Louisiana Civil Code in Book I, "Of Persons,” Title V, "Divorce,” Chapter 2, "Provisional and Incidental Proceedings,” Section 3, “Child Custody.”