author: GREMILLION, Judge.

text:
    STATE of Louisiana v. James Lyndal FOSTER.
    No. 10-615.
    Court of Appeal of Louisiana, Third Circuit.
    March 16, 2011.

      James C. Downs, District Attorney-9th Judicial District Court, Loren Marc Lam-pert, Attorney at Law, Alexandria, LA, for Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, James Lyndal Foster.
    James Lyndal Foster, Hunt Correctional Center, St. Gabriel, LA, pro se.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

| defendant, James Lyndal Foster, was tried and convicted of possession of a Schedule II controlled dangerous substance (methamphetamine) on November 5, 2009. He was sentenced to five years at hard labor. Through counsel and pro se briefs, he contends the trial court erred in denying his motions for continuance or mistrial, to suppress, and for new trial, and he claims ineffective assistance of counsel. The conviction and sentence are affirmed.

FACTS

Lieutenant Scott Weisler of the Pineville Police Department stopped a vehicle operated by Defendant because he was not wearing a seat belt. Defendant exited the vehicle, and Lieutenant Weisler asked for insurance and registration documents. Defendant went to the passenger side of the vehicle, accompanied by Lieutenant Weisler, and sat in the seat to retrieve the documentation from the glove compartment. Defendant picked up a black eyeglass case, pushed it behind him, and sat back as he looked through the glove box. Although other items were on the seat, the eyeglass case was the only one Defendant moved.

While looking in the vehicle’s center console, Defendant again moved the eyeglass case “to where, again, it looked like he was trying to conceal something.” His hands were “shaking really bad,” he was sweating profusely, and he was talking continuously. Defendant chewed on his lip and clenched his jaw, actions Lieutenant Weis-ler knew from experience to be associated with methamphetamine use.

Based on Defendant’s behavior, Lieutenant Weisler called another unit for backup. He performed a pat down on Defendant, and when Officer Edric Smith arrived, Lieutenant Weisler asked him to stay with Defendant while he “went and |2conducted a frisk of the vehicle.” Defendant’s level of agitation increased as Lieutenant Weis-ler did the pat down and search of the vehicle.

Lieutenant Weisler found a clear plastic bag that was determined to contain methamphetamine inside the black eyeglass case. He also “found a glass meth smoking pipe” in the center console.

The in-car cameras in Lieutenant Weis-ler’s vehicle captured the events to which he testified. They recorded Defendant saying he wished he would have tried to destroy, eat, or dispose of the methamphetamine. The cameras did not show the placement of Defendant and Officer Smith during the pat down or whether the vehicle’s doors were closed. Had the search of the vehicle revealed .nothing, Lieutenant Weisler would have written a citation for a-traffic violation and Defendant would have reentered his vehicle and been on his way.

Defendant filed a motion to suppress on November 2, 2009. He sought to exclude “any and all physical evidence of any kind, nature or description ... secured in violation of [Defendant's constitutional and statutory rights” and “any and all derivative evidence ... including certain statements which it is supposed are inculpatory in nature and designed for use as evidence against [Defendant] ... under the ‘fruits of the poisonous tree’ doctrine.” The trial court denied the motion on November 5, 2009, prior to the onset of trial, on grounds it was untimely filed.

On November 4, 2009, Defendant also filed a motion to continue the trial. The motion alleged that Defendant only learned on that date of the existence of the videotape from the in-car cameras, that the videotape was not disclosed in violation of his due process rights, and that undue prejudice would result from the denial of the motion. The trial court denied the motion on November 5, 2009, because trial had | .¡already commenced at the time the motion was made.

Alternatively, Defendant sought a mistrial on the same grounds, that he- did not have time to adequately prepare for trial because of the late-found videotape. Defense counsel also argued a mistrial was appropriate -based on La.Code Crim. P. art. 775 because prosecutorial misconduct made it impossible for Defendant to receive a fair trial and, thus, she could not properly represent him.

The trial court addressed the motion to continue on November 5, 2009. The jury had already been selected, and counsel asked the court to hear the motion “prior to the jury coming in.” The trial court immediately denied that motion. Defense counsel argued the motion when the' trial court asked her to “state for the record what’s happened. Because the people at the Third Circuit won’t know.” After her argument, counsel asked the court again for a continuance and then stated, “[i]f not, at least, Your Honor, I would have to ask for a mistrial....”

As the trial court and counsel for both parties proceeded with their discussion of the motion to continue, defense counsel stated, “[w]hat I want to do, Your Honor, if you’re going to deny my motion, I want to orally move for a mistrial....” After defense counsel called witnesses and made a formal record of her argument, she again asked for a mistrial, not a continuance. The trial court stated:

You have filed a Motion to Continue the Trial today. You gave this to me, and I’m going to deny your Motion for a Continuance....
There is a Motion to Suppress that you filed on Tuesday.... That is denied because it was not timely filed.
So those two motions are denied, ma’am.

Defendant also filed a motion for new trial on November 13, 2009. He argued |4the verdict was contrary to the law and evidence, and he again argued the trial court’s prejudicial error in denying his motion to continue and in denying his request to argue the motion to suppress. The trial court denied the motion.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the trial court erred by refusing to grant the motion to continue trial or for mistrial. Defense counsel first asked for a mistrial after the trial court denied her motion to-continue. She asked for-the opportunity to make an argument for the record on the motion to continue, and in that argument, asked for a mistrial. Counsel for the State commented, in response, “[s]o we would ask that whatever the motion is — I assume it’s a motion, you’re treating it as an appropriate motion, that it be denied in whatever form [defense counsel] attempts to couch it.” Defense counsel later asked the court, “if you’re going to deny my motion [to continue], I want to orally move for a mistrial....”

Clearly, defense counsel did not argue the motion to continue and the motion for mistrial separately, but rather both at the same time. Nevertheless, we will take up each motion separately hereinbelow.

Continuance

A motion to continue trial “shall not be granted after the trial or hearing has commenced,” “when the first prospective juror is called for examination.” La. Code Crim.P. arts. 708, 761. Here, the trial court noted at the hearing of the motion to continue that a jury had already been picked and, thus, the motion was inappropriate. This ruling was correct.

However, La.Code Crim.P. art. 708 also allows the trial court to consider a motion to continue as a motion for recess after the commencement of trial, and “a | ^motion for a recess is governed by the same standards as a motion for a continuance.” State v. Hollier, 09-1084, p. 10 (La.App. 3 Cir. 4/7/10), 37 So.3d 466, 474, writ denied, 10-1037 (La.12/10/10), 51 So.3d 722 (citation omitted) (quoting State v. Riggins, OS-714, pp. 8-9 (La.App. 5 Cir. 4/7/09), 13 So.3d 187, 192, writ denied, 09-1045 (La.1/22/10), 25 So.3d 129). The denial of a request for a recess will not be reversed absent a showing of abuse of discretion and specific prejudice. Id.

Here, Defendant claims he was prejudiced by the introduction of the late-discovered in-car videotape. Arguing the motion to continue, defense counsel alleged she needed additional time to have the videotape’s audio enhanced because most of the sound is inaudible and to interview a UPS driver shown in the videotape making a delivery. She did not argue the videotape was withheld by the State or that the State delayed production of the video to her in any manner; rather, counsel argued she “could not do what [she] needed to do to effectively represent [her] client.”

The simplest and most relevant fact here is that the videotape contains no exculpatory or other evidence that would have resulted in a different verdict, even if the sound had been enhanced and the background noise reduced. The trial court did not abuse its discretion in the denial of the request for continuance or recess.

Mistrial

“[A] mistrial shall be ordered ... when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.... ” La. Code Crim.P. art. 775. As defense counsel concedes, mistrial is “a drastic remedy that is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial.... The determination of whether actual prejudice has occurred lies within the sound discretion of the trial judge; this decision will not be | (¡overturned on appeal absent an abuse of that discretion.” State v. Weary, 03-3067, p. 36 (La.4/24/06), 931 So.2d 297, 321, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006) (quoting State v. Carmouche, 01-405, p. 20 (La.5/14/02), 872 So.2d 1020,1035 and State v. Wessinger, 98-1234, p. 24 (La.5/28/99), 736 So.2d 162, 183, cert. denied, 528 U.S. 1050, 120 S.Ct. 589,145 L.Ed.2d 489 (1999)).

Defense counsel argued mistrial-was appropriate here because she “did not have the video in time to do what was necessary” to prepare for trial, and thus, her client could not obtain a fair trial. However, neither the briefs nor the record supply a credible suggestion that the evidence was helpful to Defendant’s cause and/or that the State had taken any action to blindside Defendant with it. Therefore, the drastic remedy of mistrial is inappropriate.

ASSIGNMENT OF ERROR NUMBER TWO PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges the trial court erred in denying his motion to suppress without hearing any argument. The trial court denied the motion, filed on November 2; 2009, on the day the trial began, November 5, 2009, on grounds it was untimely filed and because it did not meet the provisions of La.Code Crim.P. art. 703(E)(1).

A motion to suppress must be filed within fifteen days of arraignment unless a party shows good cause why that time period is inadequate or “unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion_” La. Code CrimJP. art. 703(C), referring to La.Code Crim.P. art. 521. Louisiana Code of Criminal Procedure Article 703(C) also allows the trial court discretion to “permit the filing of a motion to suppress at any time before or during the trial.”

Here, defense counsel’s certificate of service shows Defendant’s motion was 17submitted on November 2, 2009. It is not stamped with the date of filing. .Evidence at the hearing showed the State did not learn of the existence of the in-car videotape until November 3, 2009, and did not receive it until November 4, 2009. The district attorney sent a letter and a notice pursuant to La.Code Crim.P. art. 768 on November 4, 2009.

The motion to suppress, “filed” on November 2, 2009, could not have been directed to the exclusion of the videotape because both parties alleged they did not know of its existence at that time. Thus, the November 2, 2009 motion was indeed untimely, and the trial court did not err in denying it for that reason.

The trial court further denied Defendant the opportunity to argue the motion on grounds it did not meet the requirement of La.Code Crim.P. art 703(E)(1) to allege “facts that would require the granting of relief.” A motion to suppress is properly denied when it fails to seek the suppression of specific evidence for specific reasons. State v. Richey, 258 La. 1094, 249 So.2d 143 (1971); State v. Wilder, 09-2322 (La.12/18/09), 24 So.3d 197. The language of the motion (quoted hereinabove) did not seek to suppress specific evidence for specific reasons. Thus, the trial court did not err in refusing to hear argument on the motion, and it was correctly denied.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In his pro se brief, Defendant argues the trial court erred in denying his motion for a new trial on grounds “the state purposely withheld this video, or shall [Defendant] say it surely has evidence that it could have happened.” He claims he did not get a fair trial because of the way the case was prepared and presented by the District Attorney “and the timing on it all.” Defendant’s motion for new trial allege dj^a verdict contrary to the law and evidence and prejudicial error through the denial of the motion to continue and denial of argument on the motion to suppress. See La. Code Crim.P. art. 851(1), (2). Defendant’s pro se allegations are unsupported by the record. The trial court did not err in denying Defendant’s motion for new trial.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Defendant also argues ineffective assistance of counsel in his pro se brief. He alleges he told his counsel of the existence of the videotape shortly after her appointment on April 6, 2009. Nevertheless, counsel did not file a motion to suppress the videotape until November 4, 2009.

The issue of ineffective counsel is more appropriately addressed in an application for post-conviction relief, where an evidentiary hearing can be conducted in the trial court. State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where an ineffective assistance claim is raised on appeal, this court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id.

This record does not contain sufficient evidence to determine whether counsel was ineffective. The record gives no reason for counsel’s alleged failure to seek production of the video prior to November 4, 2009. This issue is appropriately relegated to post-conviction relief.

DECREE

Defendant’s sentence and conviction are affirmed.

AFFIRMED.

      . Although the letter was dated November 2, 2009, the District Attorney’s paralegal testified it was actually prepared on November 4, 2009, along with the 768 notice.

      . Defense counsel, in arguing for a continuance/mistrial, alleged she learned of the existence of the videotape on November 4, 2009.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. James Lyndal FOSTER.
    No. 10-871.
    Court of Appeal of Louisiana, Third Circuit.
    March 16, 2011.

      James C. Downs, District Attorney — 9th Judicial District Court, Alexandria, LA, for Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, James Lyndal Foster.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

| defendant, James Lyndal Foster, appeals his adjudication as a fourth felony offender. We affirm.

Defendant was convicted of possession of methamphetamine, a violation of La. R.S. 40:967(0, and sentenced to five years at hard labor. Immediately after sentencing, the State sought habitual offender status based on the subject conviction and six additional prior felony convictions. At a hearing, the trial court found Defendant to be a habitual offender and imposed the minimum sentence of twenty years at hard labor.

At the hearing, the trial court found Ray Keith Deleomyn of the Rapides Parish District Attorney’s Office to be qualified as an expert in fingerprint identification. Deleomyn testified to extensive experience in fingerprint work and to his qualification as an expert in the trial court more than thirty-five times. Although he has a certificate for completing several courses, he has no formal certification from any professional organization. Defense counsel objected to his qualification as an expert based on his lack of certification, commenting, “I assume, that there would have to be some sort of certification to say that he’s a fingerprint expert.”

Deleomyn fingerprinted Defendant at the beginning of the hearing. He then testified about his examination of fingerprints from six bills of information involving Defendant. He also testified that, because quality is sometimes lost in the photocopy process, he went to the clerk’s office and examined the fingerprints in the original records.

In Delcomyn’s professional opinion, the fingerprints in each of the six other ^records were all of the same person, and they matched Defendant’s fingerprints taken in court that day.

The trial court noted the present conviction and reviewed documents from each of the six prior convictions on the record. The six convictions were:

• Simple burglary, a violation of La.R.S. 14:62, guilty plea on October 9, 2006, docket #282418-001, Rapides Parish;
• Simple burglary, a violation of La.R.S. 14:62, guilty plea on October 9, 2006, docket #282854-001, Rapides Parish;
• Simple burglary, a violation of La.R.S. 14:62, guilty plea on November 8, 2004, docket #273828-001, Rapides Parish;
• Unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4, guilty plea on August 7, 2000, docket #257661-001, Rapides Parish;
• Issuing worthless checks from $100 to $500, a violation of La.R.S. 14:71(D), guilty plea on August 7, 2000, docket # 257200-001, Rapides Parish; and,
• Possession of CDS II, a violation of La.R.S. 40:967(C), guilty plea on November 15, 1993, docket # 235364-001, Rapides Parish.

The trial court properly ascertained that the cleansing period had not expired for any of the prior convictions. The trial court then recalled and set aside Defendant’s present sentence of five years at hard labor and sentenced him to the minimum sentence for an offender with more than four prior felony convictions, twenty years at hard labor.

Defendant argues the State failed to present sufficient evidence to support his adjudication as a habitual offender. First, Defendant claims the trial court failed to advise him of his right to have the State prove its case against him at the habitual offender proceeding. The record, shows this claim could, under certain circumstances, indicate error. However, where the State presents adequate evidence to prove the |sexistence of a defendant’s prior convictions and that a defendant is the same person previously convicted, such error is harmless. State v. Spencer, 96-248 (La.App. 3 Cir. 11/6/96), 688 So.2d 1326, writ denied, 96-2938 (La.5/9/97), 693 So.2d 773. Here, the State presented adequate evidence of both the convictions and of Defendant’s identity.

Defendant objected to Delcomyn’s expert qualifications because he had no formal certification. An expert may be qualified “by knowledge, skill, experience, training, or education.” La.Code Evid. art. 702. Delcomyn had been accepted as an expert in the field of fingerprint identification more than thirty-five times in the trial court. Clearly, his experience was sufficient to qualify him as an expert.

Defendant argues the record does not contain written reasons for his adjudication in violation of La.R.S. 15:529.1(D)(3). “[Wjritten reasons are not required if the court presents oral reasons to show that it had considered the State’s documents and found them to be sufficient to prove the prior convictions.” State v. Wilson, 06-1421, p. 16 (La.App. 4 Cir. 3/28/07), 956 So.2d 41, 50, writ denied, 07-1980 (La.8/22/08), 988 So.2d 253 (citing State v. Dozier, 06-621 (La.App. 4 Cir. 12/20/06), 949 So.2d 502, writ denied, 97-140 (La.9/28/07), 964 So.2d 350).

Regarding each of the six prior guilty pleas, Defendant complains that some of the court minutes, bills of information, or plea forms the State submitted were not certified. He further complains that other court minutes may not have been offered. Review of the exhibits shows this is incorrect. The exhibit in question includes court, minutes showing Defendant appeared with counsel, was advised of his rights, and pled guilty to simple burglary, as do the minutes associated with each exhibit.

While some of the documents are in fact not certified, these exhibits were Roffered, introduced, and filed into ■ evidence at the hearing without objection from Defendant. Thus, any purported error or irregularity arising from non-certification of any of the documents cannot be raised now. See La. Code Crim.P. art. 841.

Defendant argues the absence of a link between him and the fingerprints on the earlier arrest records. At the hearing, Delcomyn was asked if the person whose prints appeared on the State’s exhibits belonged to the same person, and if they also belonged to the same person printed at the beginning of the hearing (Defendant). Delcomyn said they did.

Finally, Defendant complains that no witness identified him as .the same person who committed the prior crimes. Defendant was fingerprinted at the beginning of the hearing, in the presence of the trial court. Delcomyn identified Defendant’s prints as matching the prints from all six prior cases. The State may prove a defendant is the same person convicted of prior felonies through “expert opinion regarding the fingerprints of the defendant when compared with those in the prior record.” State v. Davis, 09-72, p. 9 (La.App. 3 Cir. 10/7/09), 19 So.3d 582, 588, writ denied, 09-2496 (La.10/29/10), 48 So.3d 1098 (quoting State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127).

Many of the arguments made by Defendant are incorrect as a matter of fact. Court minutes, though uncertified, plainly show Defendant was represented by counsel and advised of his Boykin rights at each proceeding. Fingerprint evidence by a qualified expert witness identified Defendant as the offender in each of six prior cases. The evidence established that Defendant is a seven-time felony offender.

1 .RULING

Defendant’s adjudication as a fourth felony offender is affirmed.

AFFIRMED.

      . This court, in docket number 10-615, has affirmed the conviction.


text:
    Ronnie HAMILTON d/b/a Hamilton Trucking v. PROGRESSIVE SECURITY INS. CO., et al.
    No. 10-1005.
    Court of Appeal of Louisiana, Third Circuit.
    March 16, 2011.

      John Sturgeon, Sturgeon & Boyd, Ferri-day, LA, for Plaintiff/Appellant, Ronnie Hamilton.
    Fred Williams Sartor, Jr., Nelson, Zent-ner, Sartor & Snel, Monroe, LA, for Defendant/Appellee, Progressive Security Ins. Co.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

liThe plaintiff/appellant, Ronnie Hamilton d/b/a Hamilton Trucking, appeals the trial court’s judgment in favor of his insurer, the defendanf/appellee, Progressive Security Insurance Company. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Hamilton is the owner of a log hauling business that uses 18-wheelers to transport logs. The 18-wheeler at issue was insured through Progressive. In August 2005, one of Hamilton’s employees was operating the 18-wheeler when he allegedly ran off of the road to avoid an accident with Mrs. Rose M. Allen. The 18-wheeler hit a concrete culvert and a small tree. It sustained various damages. This suit involves Progressive’s lack of payment due to engine failure, which it adduced was not attributable to the accident. However, in October 2005, Progressive paid $5,288,67 for body work and other damages, less Hamilton’s deductible of $1,000.

Hamilton filed suit in June 2006 against Progressive, Allen, and her insurer, State Farm. Hamilton claimed in his petition that Progressive refused to adjust the damages to the engine thereby resulting in the crippling of his business. Progressive filed a Motion For Partial Summary Judgment in August 2007 and attached Hamilton’s insurance policy which excludes coverage for “wear and tear.”12 It also attached the affidavit of Jeremy Hoff-pauir, an engineer, who stated that he evaluated the engine at Gary Byrd’s (Progressive’s Heavy Equipment Field Specialist) request. In his affidavit, Hoffpauir stated that the engine failure was not “caused or contributed to” by the August 19, 2005 accident.

An affidavit filed by Hamilton next appears in the record in September 2007 in which he recounts that Byrd indicated that he would recommend that Progressive replace the engine.

In October 2008, the trial court’s “Judgment on Defendant Progressive Security Insurance Company’s Louisiana Code of Evidence 104 Motions” appears in the appeal record. The trial court denied Progressive’s motion to exclude testimony and documentary evidence of Hamilton’s economic loss beyond sixty days and granted Progressive’s motion to exclude testimony and documentary evidence of alleged acts not previously plead by Hamilton and, in the alternative, Exception of No Cause of Action. The trial court ordered Hamilton to amend his petition to “properly plead breach of any of the enumerated items contained in R.S. 22:658 and/or 22:1220, along with all facts which plaintiff contends supports each breach.” The trial court further granted Progressive’s motion to exclude the testimony of Hamilton’s witness, Doyle Watson, finding that he was not qualified to render an expert opinion regarding whether the accident led to the engine failure. On October 24, 2008, Hamilton filed a Second Amended Petition urging that Progressive failed to deal fairly and in good faith in adjusting the damages to his truck and was arbitrary and capricious in dealing with him, resulting in the loss of -his family business. Hamilton urged that Progressive should pay a penalty for this behavior.

lain January 2010,' Progressive again filed a Motion for Partial Summary Judgment. In March 2010, Hamilton filed a brief in opposition to Progressive’s motion for summary judgment. Progressive filed a Motion to Strike the Affidavit of Doyle Watson, which was attached to Hamilton’s Opposition to Motion for Summary Judgment. The trial court granted Progressive’s motion to strike and further granted Progressive’s motion for summary judgment. It dismissed, with prejudice, Hamilton’s claims against Progressive. Hamilton appealed in September 2010. In October 2010, Hamilton filed a “Motion to File Statement of Points on Appeal.” In November 2010, Progressive filed a motion to strike Watson’s affidavit from the appellate record as it was not designated as part of the record nor was Watson qualified to offer opinion testimony as to the cause of the engine damage.

ISSUES

Hamilton assigns as error:

1. The trial court’s dismissal of the entire case based on his inability to prove that the accident caused the damage to the engine of his 18-wheeler.
2. The trial court’s failure to recognize that Progressive had failed to consider the best interest of its insured; had failed to promptly and adequately notify him of its decisions; and had failed to release his truck so that he could repair it himself.
3. The trial court’s failure to recognize that Progressive, by filing the arbi-trational proceeding for his deductible, had assumed a duty to recover his damages from the other insured, that Progressive failed to claim, for Hamilton in the arbitration the damage to the engine.

DISCUSSION

MOTION TO FILE STATEMENT OF POINTS ON APPEAL

|4Hamilton’s Motion to File Statements of Points on Appeal is before us on the merits. On appeal, we do not entertain evidence that was not properly submitted into the record at trial:

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal.
Appellate courts are courts of record and may not review evidence that is not in the appellate record,- or receive new evidence.

Denoux v. Vessel Mgmt. Servs, Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88 (citations omitted). The motion makes a number of factual assertions including some pertaining to the arbitration proceeding between Progressive and State Farm, Alen’s insurer. This arbitration proceeding is not in the appellate record. Hamilton’s motion is denied.

PROGRESSIVE’S MOTION TO STRIKE

Progressive filed a Motion to Strike the Affidavit of Doyle Watson from Appellate Record. The trial court had previously granted Progressive’s Motion to Strike Watson’s Affidavit because it found him unqualified to testify as an expert. Hamilton does not assign as error the trial court’s finding that Watson was not qualified to testify as an expert. Athough Watson’s affidavit would be necessary for a Ddubert review on appeal, that issue is not before us. Thus, we strike the affidavit from the appellate record. Progressive’s motion is granted.

MOTION FOR SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. |fi Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, unit denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

We note that, although Hamilton assigns three points of error, he does not brief any of them. Pursuant to Uniform Rules—Courts of Appeal, Rule 2-12.4, all assignments of error must be briefed. We “may consider as abandoned any specification or assignment of error which has not been briefed.” Id. Hamilton presents a summary of insurance law principles including that an insurer is required to act in good faith in dealing with its insured. He further makes various claims about Progressive’s timing in dealing with his claim. Finally, Hamilton goes on to discuss the aforementioned arbitration proceedings between Progressive and State Farm that are not relevant. Although we could summarily dismiss this entire appeal for failure to brief the assignments, we will briefly address them.

| GThe uncontroverted evidence in the record reveals that Sheila Hamilton, Ronnie’s wife, notified Progressive of the accident on September 6, 2005. ' Progressive sent out Gary Byrd, their Heavy Equipment Field Specialist, on September 7, 2005 to perform an inspection. On September 8, 2005, a Progressive adjuster authorized that the truck be moved to Watson Diesel shop so that the engine could be torn down. On September 12, 2005, Progressive mailed a Reservation of Rights letter to Hamilton. On September 20, 2005, Byrd reinspected the torn-down engine in the Watson Diesel shop and determined the engine damage was not related to the accident. On October 3, 2005, the adjuster mailed a settlement check to Hamilton for $4,288.67 for various other damages not related to the engine minus Hamilton’s $1,000 deductible. On October 6, 2005 Progressive mailed a Denial of Coverage letter to Hamilton concluding that the engine damage was due to mechanical failure rather than the accident.

ASSIGNMENT OF ERROR ONE

The entire issue in this case is whether or not the accident caused the engine to fail. Hamilton offered no admissible evidence that the engine failure was caused by the accident. Clearly, Hamilton can point to nothing that suggests he will be able to meet his burden of proof regarding causation of the engine failure at trial. This assignment of error is without merit.

ASSIGNMENT OF ERROR TWO

In this assignment, Hamilton argues that Progressive failed to consider the interest of its insured, it failed to promptly and adequately notify him of its decisions, and it failed to release his truck so that he could repair it himself. Hamilton points to no evidence in the' record to support these claims. On the contrary, the |7record supports the conclusion that Progressive adjusted Hamilton’s claim in a timely manner. This assignment of error is without merit.

ASSIGNMENT OF ERROR THREE

Hamilton claims that the trial court failed to recognize that Progressive, by filing an arbitration proceeding to recover his deductible, assumed a duty to “recover his damages from the other insured, that Progressive failed to claim for Hamilton in the arbitration the damage to the engine.” There is no mention in the record of any arbitration proceedings. This assignment of error is without merit.

CONCLUSION

Summary judgment in favor of the defendant-appellee, Progressive Security Insurance Company, is affirmed. All costs of this appeal are assessed against the plaintiff-appellant, Ronnie Hamilton d/b/a Hamilton Trucking.

AFFIRMED.

        . PARTII — DAMAGE TO YOUR AUTO

        EXCLUSIONS-PLEASE READ THE FOLLOWING EXCLUSIONS CAREFULLY. IF AN EXCLUSION APPLIES COVERAGE FOR AN ACCIDENT OR LOSS WILL NOT BE AFFORDED UNDER THIS PART II— DAMAGE TO YOUR AUTO.

      This coverage does not apply to loss:
      4. Resulting from manufacturer’s defects, wear and tear, freezing, mechanical or electrical breakdown or failure. However, coverage does apply if the damage is the result of other loss covered by the policy.

      . Progressive's La.Code Evid. art. 104 motion is not in the record.

      . Progressive's Motion to Strike is not in the record.


text:
    Donna TYSON v. THOMPSON HOME HEALTH.
    No. 10-1040.
    Court of Appeal of Louisiana, Third Circuit.
    March 16, 2011.

      George A. Flournoy, Flournoy & Dog-gett, APLC, Alexandria, LA, for Plaintiff/Appellee, Donna Tyson.
    Ward F. Lafleur, J. Keith Gates, Mah-took & LaFleur, LLC, Lafayette, LA, for Defendant/Appellant, Thompson Home Health.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

|,Thompson Home Health settled a claim for workers’ compensation benefits with Donna Tyson and received approval for the settlement of the claim from the Workers’ Compensation Judge (WCJ) in September 2005. The release provided for the release and discharge of Thompson “from any and all past, present and future claims, demands, compensation, medical expenses (in addition to any and all outstanding medical bills and/or charges for medical treatment, which employer has already authorized and agreed to pay as a result of Employee’s alleged work related accident and injury). ...” (Emphasis added). In January 2007, Tyson filed a Disputed Claim for Compensation (1008) with the Department of Labor, seeking payment of two medical bills she incurred at Christus St. Francis Cabrini Hospital in Alexandria, Louisiana. These expenses were incurred by Tyson before the settlement and were on referral of Thompson’s chosen provider. Tyson claimed that the parties intended that all pre-settlement medical expenses were to be paid by Thompson.

Subsequent to the filing of the 1008, Thompson filed a motion for summary judgment that was granted by the WCJ. This court reversed. Tyson v. Thompson Home Health, 08-193 (La.App. 3 Cir. 12/10/08), 3 So.3d 517, writ denied, 09-889 (La.6/5/09), 9 So.3d 873. In reversing the grant of summary judgment, we held that an issue of material fact existed regarding whether Tyson intended to release Thompson from paying pre-settlement medical expenses.

The case proceeded to trial on March 18, 2010. No testimony was adduced. The matter was taken under advisement by the WCJ. Oh June 7, 2010, the WCJ gave oral reasons for his ruling that the order confirming the settlement between Tyson and Thompson was not definite — meaning that it did not state the amount of the | ¡.settlement — and therefore could not be given the effect of res judicata. Therefore, Tyson was allowed to proceed with her claim for penalties and attorney fees for Thompson’s failure to pay the medical bills. He awarded Tyson a penalty of $2,000.00 and an attorney fee of $5,500.00 plus all costs of the proceeding. Thompson appeals.

ASSIGNMENTS OF ERROR

Thompson assigns as error the assessment of a penalty and attorney fee for the error in preparing the order approving the settlement pursuant to La.R.S. 23:1272 and in awarding Tyson attorney fees for work performed by her attorney on the previous appeal. Tyson answered the appeal seeking an increase in the attorney fees for work performed in this appeal, an increase in the awarded penalty, and an order requiring Thompson to pay the two medical bills directly to her.

ANALYSIS

A review of the transcript of the WCJ’s reasons leads this court to believe that the basis for the award of penalties and attorney fees was- not, as Thompson assigned as error, an error in the order of approval. Rather, the order itself did not provide that Thompson was released from past liability. The WCJ stated:

Again, looking at the order of approval in the Donna Tyson matter, there is no similar language that proves that the judgment, signed by the Court, contains the language to waive any penalties and attorney fees of whatever nature. There is language like that however in the release of all claims and satisfaction in the order of approval. The Court finds that according to Ms. Tyson, based on these matters, is entitled to move forward asserting her claims for penalties and attorney fees for failure to pay some outstanding expenses at Cabrini Medical Center which occurred on February 7, 2003 and February 21, 2003.

The question before the court is whether the order of approval prevails over the settlement document in determining Tyson’s right to pursue a claim for penalties and | ¡¡attorney fees. To make that determination, we look to the applicable provisions of the Louisiana Workers’ Compensation Act, La.R.S. 23:1201, et seq.

Approval of lump sum or compromise settlements by.the WCJ is governed by La,R.S. 23:1272, which requires that all settlements be presented to the WCJ for approval. This is accomplished by the filing of a petition or by recitation of the settlement and acknowledgment by all parties in open court. Section 1272 also requires that, unless the terms of the settlement specifically provide otherwise, all compensable medical expenses incurred prior to the date of settlement shall be paid by the payor. La.R.S. 23:1272(E). The compromise agreement, and not the order of approval, is the document that governs the rights of the parties thereto. See Taylor v. Hathorn Transfer & Storage, 07-998 (La.App. 8 Cir. 2/6/08), 976 So.2d 259 (citing Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741). The order of approval can only be set aside for fraud or misrepresentations. Sedgwick Claims Mgmt. Serv., Inc. v. Cormier, 02-216 (La.App. 3 Cir. 3/26/03), 841 So.2d 1032, writ denied, 03-1185 (La.6/20/03), 847 So.2d 1234. But the only function the order performs is to prevent the ill-advised or hasty resolution of the employee’s claim that could inure to her serious detriment. Id. If the order is set aside, the employee’s claim is revived. Unless the order is vacated for fraud or misrepresentations, the settlement documents govern ancillary matters such as entitlement to payment of pre-settlement medical expenses, penalties, and attorney fees.

Tyson signed a “Release of All Claims and Satisfaction of Order Approving Settlement” on August 31, 2005. With regard to Thompson’s liability to Tyson, that document provides in pertinent part:

APPEARER [Tyson] declares that for and in consideration of the aforesaid payment, she does hereby release and forever discharge [4TH0MPS0N HOME HEALTH and LOUISIANA HEALTH CARE SELF INSURANCE FUND, [their employees, subsidiaries, etc.] from any and all past, present and future claims, demands, compensation, medical expenses (in addition to any and all outstanding medical bills and/or charges for medical treatment, which employer has already authorized and agreed to pay as a result of Employee’s alleged work related accident and injury), costs, expenses, penalties, attorneys’ fees, damages, and any and all causes and rights of action whatsoever....

Of particular interest is the parenthetical language regarding medical expenses that the employer already authorized and agreed to pay as a result of Tyson’s accident and injury. Section 1272(E) presumes that related medical expenses will be paid unless the settlement document expressly provides otherwise. The parenthetical language reinforces the notion that except for those medical expenses Thompson already agreed to pay and authorized, no further related medical expense would be paid, because it specifically references those expenses Thompson authorized and agreed to pay.

When a settlement constitutes a final, non-appealable judgment, whether the claimant is entitled to penalties and attorney fees is governed by La.R.S. 23:1201(G). Young v. Jack in the Box, Inc., 05-1573 (La.App. 3 Cir. 5/3/06), 929 So.2d 855, writ denied, 06-1357 (La.9/22/06), 937 So.2d 390. Section 1201(G) provides that if any award payable under the terms of a final, nonappealable judgment is not paid within 30 days, a penalty of 24 percent or $100 .00 per day plus reasonable attorney fees shall be added, unless the failure to pay arises from conditions over which the employer had no control. The $100.00 per day penalty is capped at $3,000.00 in aggregate.

Tyson’s Exhibit 12, which was admitted without objection, contains a collections letter sent to her from General Collections and Recovery of Alexandria, Louisiana. That letter references a number of charges, including the two from Christus St. Francis Cabrini Hospital. The letter is dated August 31, 2006, one year |fito the date from which the settlement was executed by Tyson, and one week short of a year from the approval by the WCJ. But for the $3,000.00 cap on penalties, Thompson’s failure to pay the bills would have resulted in a much larger penalty than that imposed by the WCJ.

Tyson contends that the penalties should be governed by La.R.S. 23:1201(F), which imposes penalties for failure to pay medical bills, and that Thompson should be subject to two penalties, as two bills from Christus had not been paid. In support of her contention, Tyson cites Campbell v. City of Leesville, 07-1061 (La.App. 3 Cir. 1/30/08), 974 So.2d 908, writ denied, 08-491 (La.4/25/08), 978 So.2d 366. We disagree. Thompson failed to pay the sum due under one judgment. Rather than being subject to two penalties of $2,000.00 each, Thompson is subject to a single penalty of $3,000.00. Campbell did not involve a case that had been resolved via settlement, but an ongoing disputed claim for compensation.

Tyson also disputes the propriety of the WCJ’s award of attorney fees. Such awards are subject to review under an abuse of discretion standard. This has long been the standard of review of such awards. See Choate v. Vermillion Parish Police Jury, 479 So.2d 671 (La.App. 3 Cir.1985). As long as the amount awarded is supported by the record, with due consideration for the degree of skill and ability of the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the cause, the attorney fee award will not be disturbed on appeal. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694.

The WCJ assessed $5,500.00 in attorney fees, based, in part, on the fact that the matter was appealed to this court. Tyson, 3 So.3d 517. As Thompson points out, |fithe general rule regarding attorney fees on appeal is that they are awarded only to a claimant who successfully defends a judgment on appeal. See Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. However; in light of the skill and ability of Tyson’s attorney, the length of time over which this litigation proceeded, the result obtained by Tyson’s attorney for his- client, and the amount of time he devoted to his client’s cause, we cannot conclude that the $5,500.00 attorney fee constituted an abuse of discretion, the prior appeal notwithstanding.

As noted above, Phillips would indicate that Tyson is due additional attorney fees on appeal. We, therefore, award Tyson an additional $3,000.00 in attorney fees for her successful defense of the WCJ’s judgment on appeal.

DECREE

For the reasons stated above, the penalty assessed by the WCJ for failure to pay medical expenses outstanding at the time of settlement is amended from $2,000.00 to $3,000.00. The attorney fee assessed by the WCJ is affirmed. We award Tyson additional attorney fees in the amount of $3,000.00. All costs of-this appeal are to be borne by defendant/appellant, Thompson Home Health.

AFFIRMED AS AMENDED.


text:
    Elizabeth MELANCON v. POPEYE’S FAMOUS FRIED CHICKEN, et al.
    No. 10-1109.
    Court of Appeal of Louisiana, Third Circuit.
    March 16, 2011.

      Gilbert J. Aucoin II, Attorney at Law, Ville Platte, LA, for Plaintiff/Appellant, Elizabeth Melancon.
    Lisa Ann McLachlan, Musgrave, Mc-Lachlan & Penn, New Orleans, LA, for Defendant/Appellee, TMC Foods, Inc.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|, The plaintiff, Elizabeth Melancon, appeals the summary judgment granted in favor of the defendant, TMC Foods, LLC (Popeye’s Famous Fried Chicken). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2008, Melancon was proceeding to exit the Popeye’s restaurant in Grand Coteau, Louisiana when she slipped and fell on a “slick” floor. She filed suit in January 2009 for injuries as a result of the fall. In June 2010, TMC filed a Motion for Summary Judgment urging that the condition complained of did not create an unreasonable risk of harm and that it exercised reasonable care in maintaining the floor of the restaurant. Following a hearing in July 2010, the trial court granted summary judgment in favor of TMC finding that there were no genuine issues of material fact that Melancon will be unable to satisfy her burden of proof at trial. Melancon now appeals and assigns as error the trial court’s grant of summary judgment in favor of TMC, urging that genuine issues of material fact exist regarding whether the freshly mopped floor created an unreasonable risk of harm.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. |gart. 966(B) and (C). This means that judgment should be rendered in favor of the movant if the pleadings, depositions-, answers to interrogatories, admission on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-818 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

DISCUSSION

To maintain a slip and fall action, Melancon must prove the usual requirements of a negligence action, plus those found in La.R.S. 9:2800.6 which states in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
•|⅞(2) The merchant either created or had actual or constructive notice of the condition which caused the damage,- prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

The burden of proof does not shift to the defendant at any point and failure to prove any one of these elements negates a plaintiffs cause of action. White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081.

Melancon testified via deposition that after ordering and receiving her food she turned away from the counter to exit the restaurant. She stated that “there were no wet floor signs anywhere, and I just — I took one step into the wet zone and fell.” She said the floor did not have a puddle but was “slick.” She testified an employee had mopped the store while she was at the counter, again reiterating that they did not put any “wet floor” signs out to warn customers. .Melancon admitted to drinking two beers approximately five hours before she slipped.

Video surveillance from the Popeye’s restaurant shows two bright yellow standard “wet floor”- signs in the Popeye’s restaurant — one near- the counter and the other at the entrance, both of which are readily visible to anyone entering the store. Upon entering the Popeye’s restaurant, Melancon walks directly past a bright yellow, “wet floor” sign. It then shows her turning from the counter, food in hand, looking directly at a bright yellow mop bucket. She then walks past a “wet floor” sign and directly past the employee who is mopping the floor. • The only explanation for Melancon’s lack of awareness regarding the wet floor is her inattentiveness.

Nevertheless, Melancon argues that TMC should only mop its floors when the store is closed and that mopping during business hours creates an ^unreasonable risk of harm. This is an unreasonable duty to impose upon store owners. There are a multitude of reasons, including patron safety, requiring that store owners clean up various spills on their floors and provide a clean environment. Jurisprudence has specifically found that mopped floors do not create an unreasonable risk of harm when the appropriate signage is used to warn patrons of the condition of the floor. See Rowell v. Hollywood Casino Shreveport, 43,306 (La.App. 2 Cir.2008), 996 So.2d 476; Lee v. Ryan’s Family Steak Houses, Inc., 06-1400 (La.App. 1 Cir. 5/4/07), 960 So.2d 1042, writ denied, 07-1577 (La.10/12/07), 965 So.2d 405.

Popeye’s exercised reasonable care by placing two different “wet floor” signs to alert customers that the floor had been mopped. Based on the evidence before this court, there is no genuine issue of fact that Melancon will be unable able to prove that TMC did not adequately warn of its freshly mopped floor with the many and obvious signs indicating “wet floors.” Accordingly, summary judgment was properly granted in TMC’s favor.

CONCLUSION

The judgment of the trial court in favor of the defendant-appellant, TMC Foods, LLC, is hereby affirmed. All costs of this appeal are assessed against the plaintiff-appellant, Elizabeth Melancon.

AFFIRMED.

      . Melancon incorrectly named the defendant as "Popeyes Famous Fried Chicken.” However, in her first amending and supplemental petition, she named TMC Foods, LLC as the proper party defendant.


text:
    Eileen LADAY v. John DOE, Lafayette City-Parish Consolidated Government, et al.
    No. 10-1110.
    Court of Appeal of Louisiana, Third Circuit.
    March 16, 2011.

      Edward 0. Taulbee IV, Christopher E. Taulbee, Taulbee & Associates, Lafayette, LA, for PlaintiffiAppellee, Eileen Laday.
    Kenneth Wayne Jones, Jr., Allison M. Ackal, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Lafayette City-Parish Consolidated Government.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

|, The Lafayette City-Parish Consolidated Government appeals a judgment in favor of Eileen Laday that awarded her damages for injuries she allegedly sustained in an incident aboard a City-Parish bus, on April 10, 2007. Laday- answered the appeal and asserts that the trial court abuséd its discretion in its award of general damages and future medical expenses and asks that we amend both amounts to award additional damages. For the reasons that follow, we affirm as amended.

FACTS

On April 10, 2007, Laday was a passenger on a bus owned by the City-Parish and driven by Carlos Cormier. The bus had been donated to the City-Parish by a governmental entity in Missouri in the aftermath of Hurricane Katrina. Prior to the donation of the bus, a plexiglass shield or partition located above the modesty panel in front of the first seat, designed to prevent contact between passengers and the opening door, had been removed. The first seats adjacent to the modesty panel were situated such that the passengers faced the aisle rather than the front of the bus. Thus, a natural posture of the passenger in the first seat would be to place her right arm on the bar or rail that held the modesty panel in place. Laday claimed that as the door opened, she was trapped or struck by it. Her accounts of the degree and length of entrapment varied over the course of the litigation, but she never wavered in her claim that some form of contact occurred.

The day after the incident, Laday sought treatment with Dr. Michael P. Kennedy, a general practitioner in Carenero, Louisiana. She was complaining of neck and shoulder pain radiating into her right arm. Dr. Kennedy treated Laday conservatively with prescriptions and a referral for physical therapy. An MRI ordered by Dr. Kennedy demonstrated degenerative cervical disc conditions as well as a disc |2herniation at the C5-6 level.

In June 2008, Laday saw Dr. Louis Blanda, a Lafayette orthopedic surgeon, who ultimately recommended that Laday undergo surgery to relieve her condition. As of the date of trial, she had not had the surgery. Dr. Blanda also related the herniation to Laday being entrapped by the bus door. Dr. Blanda opined that the cost of this surgery would run between $60,492.60 to $61,492.60.

The causal relation was disputed by Dr. Paul Fenn, an orthopedic surgeon who performed an independent medical examination of Laday at the City-Parish’s request. Dr. Fenn’s examination revealed some inconsistency in Laday’s level of effort in muscle strength testing. He also noted that Laday’s muscles had experienced no atrophy as one might expect when a muscle became denervated as a result of a disc herniation and stenosis. However, Dr. Fenn diagnosed Laday with cervical spondylosis (chronic degenerative changes) and a herniated disc. Based upon his review of Laday’s medical history, and in particular the records regarding at least two past incidents in which Laday had complained of lingering cervical pain, Dr. Fenn opined that it would be difficult to pinpoint any particular incident as causing the herniated disc. On the contrary, he opined that the herniated' disc was most likely the result of degenerative changes in Laday’s neck, particularly in light of the fact that in the general population, excluding trauma patients, the C5-6 herniation is the most common disc herniation in the neck. Dr. Fenn did admit that the mechanism of injury Laday described was a possible cause of the disc herniation, but not a probable cause.

Following a bench trial, the trial court found that Laday had been injured by the bus door. The trial court further found that the City-Parish was bound by the high standards imposed upon common carriers and found that the City-Parish was ^negligent in failing to replace the plexiglass barrier. Although Laday’s testimony enlarged the extent and time she was entrapped, the court considered the fact that she was a diagnosed paranoid schizophrenic and found that the exaggerations were explained by her mental illness, but that some contact with the door had occurred that caused or aggravated a disc herniation to the point that it now requires surgery. Laday was awarded $60,000.00 in general damages, $24,084.56 in past medical expenses, and $60,492.60 in future medical expenses to be placed into a rever-sionary trust as per La.R.S. 13:5106. All sums were to carry judicial interest from the date of demand. The City-Parish appeals this judgment. Laday appeals the awards of general damages and future medical expenses as abusively low.

ASSIGNMENTS OF ERROR

The City-Parish assigns the following errors:

1. The trial court was manifestly erroneous or clearly wrong in holding that Ms. Laday was injured in the incident at issue when the decision .came down to a credibility determination between Ms. Laday and Mr. Cormier that was resolved in favor of Carlos Cormier.
2. The trial court committed legal error in not placing the interest on Ms. Laday’s award for future medical expenses into the reversionary trust to be established for her future medical expenses.

Laday assigns the following errors: '

1. [The trial court] abused [its] discretion in awarding the Plaintiff general damages in the amount of $60,000.00 which was abusively low.
2. [The trial court] abused [its] discretion in awarding future medical expenses in the amount of $60,492.00 which omitted additional future medical expenses proven at trial.

ANALYSIS

The trial court’s findings of credibility were not as simplistic as the City-|Parish’s4 characterization makes them sound. What the trial court found was that, while Laday certainly magnified the degree to which she was entrapped by the bus door, it did believe that there was contact with the door. The trial court also found that Cormier could not testify that there was no contact; he simply testified that he saw nothing happen. The photographs of the bus certainly allow one to clearly envision that there could be contact between the front seat passenger and the door. Those photographs depict a very slight clearance between the modesty panel and the opened door. A passenger’s arm could well be caught by the door as it opened. The medical experts agreed that Laday’s herniated disc could have been caused by contact with the door, and two medical experts flatly stated that it more probably than not was.

The trial court’s findings are reviewed under the manifest error standard. If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). We are further admonished by the Louisiana Supreme Court that where there is conflict in testimony, reasonable evaluations of credibility should not be disturbed. Canter v. Koehring Co., 283 So.2d 716 (La.1973). We are aware that where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d 840 (La.1989). We find no manifest error in the trial court’s determination that those | ¿inconsistencies that do exist in this case cast doubt only on the extent to which Laday was contacted by the bus door. Nor do we find manifest error in the trial court’s ruling on the issues of whether an incident occurred or on its causal relationship with Laday’s cervical disc herniation.

We turn now to the issue of whether the judicial interest awarded Laday on the future medical expenses component of her damages should have been ordered placed into the reversionary trust. Louisiana Revised Statute 13:5106(B)(3)(a) provides:

In any suit for personal injury against a political subdivision wherein the court, pursuant to judgment, determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that a reversionary trust be established for the benefit of the claimant and that all medical care and related benefits incurred subsequent to judgment be paid pursuant to the reversionary trust instrument. The reversionary trust instrument shall provide that such medical care and related benefits be paid directly to the provider as they are incurred. Nothing in this Paragraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided, but with the requirement of establishing a reversionary trust.

The statute offers no guidance as to the disposition of judicial interest on the future medical expenses component of a plaintiffs damages. The legislature did include a “statement of purpose and finding” that judgments against public entities have exceeded the ability to pay them; that the public fisc is threatened by these judgments as to pose a threat to the general health, safety, and welfare of the citizenry; and that the limitations imposed by the statute are needed to lessen the impact of judgments against governmental entities on their citizens. La.R.S. 13:5106(E).

Legal interest is mandated when prayed for or when provided for by law. La.Code Civ.P. art. 1921. Judicial interest is mandated in all cases ex delicto. La. R.S. 18:4203. An award of judicial interest is required on an award of future [ fieconomic losses. “No differentiation is made between those elements of quantum which recompense for past losses and those which recompense for future losses,” at least when determining whether interest is awarded on such án element of damages. La. Farms v. La. Dep’t. of Wildlife & Fisheries, 95-845, p. 48 (La.App. 3 Cir. 10/9/96), 685 So.2d 1086, 1111, writs denied, 97-0486, 97-0507 (La.4/4/97), 692 So.2d 420, 422

This court has stated that the purpose of judicial interest is to compensate a victim for the opportunity costs associated with being deprived of funds to which she was entitled during the pendency of litigation. McLaughlin v. Hill City Oil Co./Jubilee Exxon, 97-577 (La.App. 3 Cir. 10/8/97), 702 So.2d 786, writ' denied, 97-2797 (La.2/13/98), 706 So.2d 994. Because La-day is only entitled to have her future medical expenses paid from the reversion-ary trust as they are incurred, she has suffered no loss of use of that money. The purpose behind an award of judicial interest is not furthered by paying same directly to Laday. And the purpose behind La.R.S. 13:5106 is thwarted by paying those sums directly to Laday. We therefore find that the trial court erred in ordering the payment of judicial interest on future medical expenses to Laday rather than into the reversionary trust.

A court reviewing a general damage award does so under an abuse of discretion standard. Andrus v. State Farm Mut. Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206. This requires us to determine whether the award is below that which a reasonable trier of fact could award for the particular injury to the plaintiff under the particular circumstances of the case. Id. Laday cites Cox v. Shelter Insurance Co., 09-958 (La.App. 3 Cir. 4/7/10), 34 So.3d 398, writ denied, 10-1041 (La.9/17/10), 45 So.3d 1044, which she contends demonstrates the abusively low nature of the trial 17court’s award. We are instructed, though, that it is only after we have determined that an award was abusively low that we can look to the jurisprudence for similar. awards. In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the supreme court stated, “The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” While making this initial inquiry, we are specifically prohibited from using “a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case.” Id.. We find no abuse of discretion in the trial court’s award.

The trial, court pointed out while rendering its reasons for judgment that it was not impressed with Laday’s complaints. She testified very little about her level of pain. Laday argues that the trial court should have placed greater credence on her medical records than on Laday’s court testimony. We disagree, and remain mindful that the trial court heard the testimony and observed the witness’s demean- or in court. Deference is afforded the trial court’s damage awards for precisely the reason that the members of the appeal court were not afforded that opportunity. The trial court also heard evidence that Laday had suffered head, neck, back, and arm pain resulting from a series of accidents dating back at least as far as 1992 and had told Dr. Blanda that she still had pain from those injuries.

An award of future medical expenses is an item of special damages that can be established to reasonable mathematical certainty, if not with absolute precision. Moody v. State Farm Mut. Auto. Ins. Co., 03-1594 (La.App. 3 Cir. 5/12/04), 872 | sSo.2d 630, writ denied, 04-1465 and 04-1386 (La.11/8/04), 885 So.2d 1137.

Laday argues that the trial court failed to consider that she will require post-operative care. The trial court awarded Laday $60,492.00, part of which represents the amount the parties stipulated to, plus the amount Dr. Blanda would charge to perform the anterior cervical discectomy and fusion. In its oral reasons, the trial court stated it was awarding this amount representing Dr. Blanda’s estimate of the surgical and post-surgical care. However, the trial court awarded her the amount Dr. Blanda estimated would be required just for the surgery. Dr. Blanda testified that if Laday had the surgery, he would probably continue to see her for at least a year. He further testified that she would require physical therapy and periodic x-rays. For the trial court to fail to take those charges into account, when their need was established at trial, constitutes an abuse of its discretion.

The record reflects that Dr. Blanda charges $92.00 per established outpatient visit. During the last full year Dr. Blanda saw Laday, he was scheduled to see her nine times (several of which she failed to attend or were rescheduled). We therefore award her future medical expenses for appointments with Dr. Blanda in the amount of $828.00. Laday underwent physical therapy at Our Lady of Lourdes Hospital. Her total charges for that physical therapy totaled $1,368.00 for treatment over a period of four months. We amend the award of future medical expenses to include a like amount. The award for future medical expenses is amended to $62,688.00 to be paid into the reversionary trust.

CONCLUSION

The trial court’s findings of fact regarding whether Laday was injured in an incident on April 10, 2007, are subject to review under the manifest error standard. |9We find that the record reasonably supports this finding. The trial court erred as a matter of law in ordering payment of judicial interest on Laday’s future medical expenses directly to Laday rather than into the reversionary trust to be created for paying those expenses as they are incurred. The trial court did not abuse its discretion in its award of general damages to Laday, but did abuse its discretion in its award of future medical expenses, as that award failed to consider Laday’s post-operative care. The award of future medical expenses is amended to $62,688.00 to be paid into the reversionary trust.

Costs of this appeal in the amount of $17,671.19 are taxed to the Lafayette City-Parish Consolidated Government.

AFFIRMED AS AMENDED.


text:
    L.E.P.S. v. R.G.P.
    No. 10-1128.
    Court of Appeal of Louisiana, Third Circuit.
    March 16, 2011.

      Philip Allan LeTard, Attorney at Law, Vidalia, LA, Richard L. Fewell, Jr., Law Office of Richard Fewell, West Monroe, LA, James Edward Paxton, Attorney at Law, St. Joseph, LA, for Defendani/Appel-lant, R.G.P.
    Paul A. Lemke, III, Owens & Lemke, Inc., Harrisonburg, LA, for Plaintiff/Ap-pellee, L.E.P.S.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

hR.G.P. appeals the trial court’s judgment awarding L.E.P.S. $64,845.12 in back due child support for their triplets. For the following reasons, we affirm as amended.

PROCEDURAL AND FACTUAL BACKGROUND

We meet again in the ongoing custody and child support litigation concerning the triplets born of the marriage of R.G.P. and L.E.P.S. R.G.P is now deceased following a late-night singular motor vehicle accident on April 9, 2010.

L.E.P.S. filed for divorce from R.G.P. in 1996, which was granted in May 1997., At that time, R.G.P. was ordered to pay $1,140 per month in child support pursuant to a consent agreement between the parties. By September 2002, L.E.P.S. had filed a “Rule for Contempt and to Fix Interim Child Support” requesting that R.G.P. be held in contempt for unilaterally reducing child support payments to $600 per month beginning in December 1998. A January 2008 judgment set child support from September 2002 until January 2003 at $1,420 per month. Effective January 1, 2003, child support was set at a rate of $1,500 per month until further order of the court.

On July 11, 2008, L.E.P.S. filed a “Petition to Set Child Support and For Judgment of Arrearages.” Following an August 13, 2008 trial, the trial court named R.G.P. the primary custodial parent, which we reversed on appeal in July 2009. See \2L.E.P.S. v. R.G.P., 08-1349 (La.App. 3 Cir. 6/3/09), 11 So.3d 633, writ denied, 09-1429 (La.7/1/09), 11 So.3d 498. We remanded to the trial court to establish a visitation schedule and to fix child support.

The sole issue of child support and ar-rearages was the subject of the most recent trial in January 2010. As the trial court noted, “It is incredulous that these parties have litigated incessantly over the past thirteen (13) years but never established a final child support obligation.” In March 2010, the trial court awarded final child support in the amount of $1,580 retroactive to September 10, 1996. The record reflects a lengthy explanation of how the trial court arrived at this figure and how it determined the $64,845.12 figure owed by R.G.P. retroactively to September 1996, most notably finding that R.G.P. had long evaded producing documents pertaining to his income as well as underreporting his income.

In March 2010, R.G.P. filed a Motion for New Trial, which was denied. . R.G.P. appealed to this court. After his death in April 2010, R.G.P.’s mother, executor of his estate, filed a Motion to Substitute his estate in May 2010. L.E.P.S. filed a Motion to Dismiss Appeal citing R.G.P.’s failure to comply with La.Code Civ.P. art. 2121 in that an order was not included in the filing. R.G.P. filed an Exception of Prescription in October 2010, urging that retroactivity from 1996 was in contravention of La.Civ.Code art. 3501.1. He argued he should only be assessed child support arrearages from 1998 through 2008. R.G.P. further assigns as error:

1. The trial court’s finding of an increase in child support from March 12, 2010 retroactive from the initial filing, for divorce on September 10, 1996.
2. The trial court’s failure to consider the income of L.E.P.S’s ^current husband.
3. The trial court’s determination of R.G.P.’s income based on the bank deposits rather than the testimony.
4. The trial-court’s determination that undervalued L.E.P.S.’s ability to work.
5. The trial court’s error in assessing the extraordinary expenses created by L.E.P.S’s move to Arizona.

DISCUSSION

Motion To Dismiss Appeal

L.E.P.S. urges that we should dismiss R.G.P.’s appeal because it was untimely in that R.G.P. had until July 16, 2010 to timely file the original appeal with the clerk of court, but did not do so until July 19, 2010. She urges that the original fax filing to the clerk on July 16, 2010 was deficient because it did not contain an order of appeal from the trial court pursuant to La.Code Civ.P. art. 2121. Pursuant to La.Code Civ.P. arts. 3943 and 3942, R.G.P. had thirty days from the notice of judgment denying his motion for new trial, which was mailed on June 16, 2010, to file his appeal.

It is true that R.G.P.’s fax-filed “Motion and Order for Devolutive Appeal” dated July 16, 2009 did not contain an order. R.G.P. only filed the necessary “Order” on July 19, 2010. However, as long as the motion for appeal was timely filed, errors pertaining to the order have Keen held to not be fatal to the appeal. See Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La.1981); E.D. Haber Heating & Air Conditioning, Inc. v. Koppenal, 399 So.2d 1224 (La.App. 1 Cir.1981). Thus, we decline to dismiss the appeal.

Retroactivity

The supreme court recently addressed the retroactivity of a child support ^judgment in Vaccari v. Vaccari, 10-2016 (La.12/10/10), 50 So.3d 139, clarifying that a trial court can make a child support judgment retroactive to the date of judicial demand, even though an interim award has been in effect between the parties, and expressly overruling jurisprudence, including those cases cited by R.G.P., to the contrary.

Louisiana Revised Statute 9:315.21 addresses the retroactivity of a child support judgment and states:

A. Except for good cause shown, a judgment awarding, modifying,' or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.
C. Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
D. Child support of any kind, except that paid pursuant to an interim child support allowance award, provided by the judgment debtor from the date of judicial demand to the date the support judgment is signed, to or on behalf of the child for whom support is ordered, shall be credited to the judgment debtor against the amount of the judgment.
E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand.
F. (1) Notwithstanding any other provision of this Section, if a party has been directly affected by Hurricane Katrina, a judgment modifying a final child support judgment may be made retroactive to August 26, 2005, if judicial demand is made prior to April 15, 2006.
|s(2) Notwithstanding any other provision of this Section, if a party has been directly affected by Hurricane Rita, a judgment modifying a final child support judgment may be made retroactive to September 20, 2005, if judicial demand is made prior to April 15, 2006.

In Vacarí, 50 So.3d 139, the supreme court summarized the lack of clarity in the statute with regard to the retroactivity of child support judgments when an interim order is in effect:

Subsection B, which is most directly relevant to our discussion, treats a final award of support differently depending on whether there is an interim award in effect when the final judgment is signed. If there is no interim award in effect, § 9:315.21(B)(2) requires a final- award to be made retroactive to the date of judicial demand.
We are more concerned with § 9:315.21(B)(1), which controls where, as here, an interim award is in effect when the final judgment is signed. Subsection B(l) states a final judgment is “effective as of the date the judgment is signed” and it “terminates an interim child support allowance as of that date.” This clearly explains the rule going forward from the date the judgment is signed-the interim award will no longer be in effect, the final judgment will be. However, it does not directly address the retroactive effect, if any, of such a judgment. This is an apparent lacuna in the statute-although the statute does not expressly permit a court to render such a final judgment retroactive, neither does it expressly forbid it.
The answer lies in § 9:315.21(0), which provides an order “modifying or revoking a final child support judgment shall be retroactive to the daté of judicial demand.” If an order modifying a final support judgment may be made retroactive, a fortiorari, the judgment itself may be made retroactive....
We therefore hold, upon a showing good cause, a trial court may order a final child support award retroactive to the date of judicial demand even though there has been an interim award in effect. Any cases holding the contrary are hereby overruled.

Id. at 143-144.

Accordingly, the trial court did not err in making the March 12, 2010 judgment retroactive to the date of judicial demand in September 1996. This assignment of |fierror is without merit.

Prescription (Arrearages)

R.G.P. argues that, pursuant to La. Civ.Code. art. 3501.1, the arrearages he was assessed retroactively to 1996 are prescribed. Louisiana Civil Code Article 3501.1 states that “[a]n action to make executory arrearages of child support is subject to a liberative prescription of ten years.” As pointed out by L.E.P.S., the exception was erroneously filed in the name of a deceased person, rather than the substituted party, his estate. Nevertheless, the estate was substituted in the record. Although the exception was not properly filed by the estate, the exception has merit. L.E.P.S. filed her “Petition to Set Child Support and .For Judgment of Arrearages” on July 11, 2008. Thus, according to La.Civ.Code art. 3501.1, the action is subject to a. ten year prescriptive period. Accordingly, R.G.P.’s arrearages are assessed retroactively back to July 11, 1998. Any claims for arrearages prior to that point are prescribed.

L.E.P.S. argues that the two stipulated judgments entered into between she' and R.G.P.- in 1997 and 2002 served to interrupt prescription. We disagree. There is no jurisprudential basis cited for that argument, nor can we find one. Additionally, each installment due under a support order is a separate and distinct obligation. See Jones v. City of New Orleans, 09-0369 (La.App. 4 Cir. 9/2/09), 20 So.3d 518, writ denied, 09-2156 (La.12/18/09), 23 So.3d 947. Prescription is interrupted by acknowledgment pursuant to La.Civ.Code art. 3464. We find no evidence in the record indicating that R.G.P. acknowledged even one delinquent installment much less everything he owed. The stipulated judgments are not even in the record.

17Further, the jurisprudence of this court has held that “[pjayments made pursuant to an order which modifies a previous award of child support do not serve to interrupt prescription for claims based upon the previous order to pay child support.” Goss v. Goss, 95-1406, p. 5 (La. App. 8 Cir. 5/8/96), 678 So.2d 1366, 1369. Likewise, the stipulations allegedly in the 1997 and 2002 agreements cannot serve to interrupt prescription unless they clearly acknowledge each separate and distinct monthly installment the parent in arrears has paid or underpaid.

Thanks to the meticulous work of the trial court, we have sufficient information in the record to recalculate the arrearages owed. The trial court determined that from October 1996 until December 1998, R.G.P. paid $1,140 per month, resulting in an underpayment of $440 per month. It further found he was owed a credit for September 1996 in the amount of $81.40. The total arrearages it arrived at for the October 1996 through December 1998 period was $10,918.60. Because all claims before July 1998 are prescribed, the $440 shortage is only attributable to R.G.P. for the six-month period beginning July 1998 and ending December 1998. Accordingly, six times $440 equals $2,640 minus a credit of $81.40 for a total of $2,558.60 owed by R.G.P. for this period instead of $10, 918.60. Thus, the total arrearage of $64,845.12 is reduced by $8,441.40 to equal $56,403.72. Accordingly, the judgment is amended to show that R.G.P. owes L.E.P.S. $56,403.72 in arrearages.

Income Sharing

R.G.P. asserts that the trial court erred in failing to consider the income of J.S., L.E.P.S.’s current husband. Louisiana Revised Statute 9:315(C)(5)(c) provides (emphasis added):

|sThe court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

The trial court did consider J.S.’s income as follows:

Defendant argues that [J.S. and L.E.P.S.’s] monthly expenses total $11,415.00 and [J.S.’s] income is $64,866.00 per year. Therefore, the difference between income and expenses, $5,705.50 per month, should be allocated to plaintiff. This argument is without merit. First, plaintiff has only been married to [J.S.] since August, 2006, although she lived with him occasionally between August, 2003 and August, 2006. Secondly, there were seven or more people living in the [S] household in 2006-2008. A portion of the household expenses would have to be allocated to each person who resided in the home. Also, plaintiff was married to a [Mr. F] between November, 1998 and June, 2001 and there is no financial information on Mr. [F], Rather than speculate on expense-sharing allocations, the Court is of the opinion that allocating the amount that plaintiff normally earned is more reasonable. The Court fixes the amount allocated to plaintiff at $1,500 per month.

We review child support determinations using the manifest error standard of review and we will not disturb the trial court’s support order unless it committed manifest error or an abuse of discretion in its determination. State, Dep’t of Social Services, v. L.T., Jr., 05-1965 (La.7/6/06), 934 So.2d 687. Having reviewed the record, we find no error or abuse of discretion in the trial court’s consideration of J.S.’s income. This assignment of error is without merit.

R.G.P.’s Income

R.G.P. asserts that “there is no evidence in the record that the bank deposits in Appellant’s checking account were income rather than loans.” On the contrary, it is readily apparent that R.G.P.’s income far exceeded that which he reported to the court or the IRS. That R.G.P. attempts to classify these regular large deposits as “loans” is a fiction. The trial court found that the majority of the | unexplained “loans” were actually transfers from other accounts over which R.G.P. had control. The trial court further found that R.G.P. “obviously had income from other sources.” It arrived at a figure of $350,007.50 in unexplained deposits for the years 2004-2007, which it then divided by four years for a total of $87,501.75 per year. Having reviewed the bank records and the testimony, we find no manifest error in the trial court’s determination. Accordingly, this assignment of error is without merit.

L.E.P.S. Under-employment

In this assignment of error, R.G.P. argues that the trial court erred in attributing only $1,500 per month in income to L.E.P.S., stating that the trial court did not consider what a teacher would earn in Yuma, Arizona, where she lives, but instead based its calculation on what a teacher earns in Catahoula Parish. R.G.P. further argues that the trial court based the amount on her employment income from years past instead of on a current teacher’s salary. R.G.P. put on no evidence of what this amount should be, and we find no error in the trial court’s use of $1,500 as the amount of income attributed to L.E.P.S. This assignment of error is without merit.

Transportation Costs

R.G.P. states, “defendant shows that [L.E.P.S.] should be cast with 58.79% of the transportation costs associated with the visitation of the minor children with their father.” Clearly, the children will not be visiting him prospectively, so we can only assume that R.G.P. wants a credit for past transportation costs because L.E.P.S. is the party who moved away. R.G.P. submits the amount of $3,974 was spent on airplane tickets in the past traveling from Arizona to Louisiana. There was little testimony at the trial regarding past transportation costs and we find no error in | ipthe trial court’s refusal to reimburse R.G.P. some percentage of these costs. This assignment of error is without merit.

CONCLUSION

The judgment of the trial court is affirmed as amended. Any claims before July 11, 1998, are prescribed and the ar-rearages are recalculated at $56,403.72. The judgment is affirmed in all other respects. All costs of this appeal are assessed against the Estate of R.G.P.

AFFIRMED AS AMENDED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rule 5-2, we use initials throughout to protect the identity of the minors.

      . Although we have reviewed the original record before, it is not now before us and the factual background is gleaned from the trial court’s "Written Reasons for Judgment.”

      .We note that R.G.P. specifically requested that the appeal record consist of only the pleadings and hearing transcripts from January 1, 2010 to present.

      . We note that although R.G.P.’s estate had been substituted as the proper party, all documents continue to refer to R.G.P. and we will do the same.