author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. George NELSON, Appellant.
    No. 46,915-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Mark D. Plaisance, Baker, LA, for Appellant.
    Jonathan M. Stewart, District Attorney, Tammy G. Jump, Hubert Russell Davis, Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   GASKINS, J.

_J_¡The defendant, George Nelson, was convicted of distribution of a Schedule I controlled dangerous substance (CDS), marijuana. He was subsequently sentenced to 15 years’ imprisonment at hard labor to be served consecutively with any probation or parole the defendant was obligated to serve. The defendant now appeals. We affirm the defendant’s conviction and sentence.

FACTS

On December 11, 2009, the Bienville Parish sheriffs department was conducting an extended undercover narcotics operation. The services of two confidential informants (CIs) were utilized. Prior to sending the CIs out, two members of the sheriffs office searched them and their vehicle. They gave the CIs buy money and concealed a video camera in the car to record any transactions. There was also an audio feed from the car to the officers; however, this was primarily for the safety of the CIs and the audio was not recorded.

The two CIs subsequently encountered the defendant and arranged to purchase marijuana from him. The transaction, wherein the defendant was paid $100 for an ounce of marijuana, was recorded by the video camera. The CIs then met up with the law enforcement officers and gave them the bag of suspected marijuana. Crime lab analysis demonstrated that the substance was, in fact, marijuana.

Due to the ongoing nature of the narcotics operation, the defendant was not immediately arrested. He was charged in February 2010 with distribution of a Schedule I CDS, marijuana. He was tried and convicted |2following a jury trial in February 2011. In addition to the testimony of the two officers and the two CIs, the state also presented a DVD recording of the transaction and still photos taken from the video. After reviewing a presentence investigation report, which noted the defendant’s two previous drug convictions, the trial court imposed a sentence of 15 years at hard labor, to be served consecutively with any other probation or parole the defendant was to serve.

The defendant appeals, asserting two assignments of error. Pursuant to well-settled law, we first consider the assignment of error pertaining to sufficiency of the evidence. See State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

SUFFICIENCY OF EVIDENCE

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own ^appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

|4To present sufficient evidence of distribution of a CDS, the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Ashley, 44,861 (La.App.2d Cir.10/28/09), 26 So.3d 193.

Discussion

The defendant contends that there was insufficient evidence of distribution of marijuana and of his identity as the distributor. He asserts in brief that the only evidence of his guilt was the testimony of “two convicted, paid informants.” However, the defendant’s argument goes to the weight of the evidence, not its sufficiency.

Both of the CIs identified the defendant in court as the individual to whom they paid $100 for an ounce of marijuana and the individual who delivered to them the bag of marijuana which they turned over to law enforcement. The defendant points to the fact that these two witnesses had criminal histories and that one of them did not know the defendant prior to participating in this controlled drug buy. However, lack of prior familiarity with a defendant does not render a witness’s identification of the defendant presumptively unreliable; nor does a criminal history render his testimony unreliable. Furthermore, the jury was able to test the witnesses’ identification of the defendant with their own observation of the perpetrator in the video recording of the controlled buy and the still pictures taken therefrom. To the extent the CIs’ criminal records and lack of familiarity are relevant, they bear on the credibility of the witnesses and therefore the ¡¿weight of the evidence, not its sufficiency. In other words, given the apparent credibility determinations made by the jury, a rational trier of fact viewing the evidence in the light most favorable to the prosecution could have found beyond a reasonable doubt that the defendant engaged in the distribution of marijuana.

This assignment of error is meritless.

MOTION FOR MISTRIAL

The defendant contends that the trial court erred in denying his motion for mistrial based upon his appearance in court wearing shackles.

During jury selection, the defendant was inadvertently allowed in court with shackles on his ankles. He was dressed in street clothes, including long pants. He walked a short distance before sitting at a table with his attorney. He remained seated there for about an hour and a half. Even his own lawyer and the judge failed to notice the shackles. Once made aware of the situation, defense counsel moved for a mistrial. At the ensuing hearing, testimony was presented by the chief jailer at the courthouse. The testimony established that there were only three seats from which the shackles could possibly have been observable by prospective jurors seated in the jury box for questioning during voir dire. Finding no evidence of prejudice to the defendant, the trial court denied the motion for mistrial.

Law

The issue concerning the motion for mistrial is governed by La. C. Cr. P. art. 775, which provides, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or |fioutside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

The determination of whether actual prejudice has occurred lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion. State v. Price, 40,408 (La.App.2d Cir.12/16/05), 917 So.2d 1201, writ denied, 2006-0156 (La.6/16/06), 929 So.2d 1284.

The law on the issue of whether a mistrial is warranted when jurors are exposed to a defendant in restraints was summarized by this court in State v. Thornton, 36,757 (La.App.2d Cir.1/29/03), 836 So.2d 1235, writ denied, 2003-0861 (La.10/31/03), 857 So.2d 474, as follows:

Absent exceptional circumstances, a defendant before the court should not be shackled, handcuffed, or garbed in any manner destructive to the presumption of innocence or detrimental to the dignity and impartiality of the judicial proceedings. For a finding of reversible error, the record must show an abuse of the trial court’s reasonable discretion resulting in a clear prejudice to the accused. The momentary use of restraints for the limited purpose of transporting the accused does not mandate a mistrial even when a juror sees a defendant being transported on two occasions. [Citations omitted.]

In Thornton, supra, one of the jurors briefly observed the defendant in handcuffs being transported to the courtroom for trial and mentioned it to another juror. The appellate court found no error in the trial court’s denial of a mistrial, noting that the jurisprudence was clear that such an observation under those circumstances did not mandate a mistrial. The defendant had not demonstrated clear prejudice as the result of the incident, and when questioned, the juror assured the court that he could remain |7impartial in rendering a verdict. The defendant presented no evidence to the contrary.

Similarly, in State v. Lewis, 43,402 (La.App.2d Cir.8/13/08), 990 So.2d 109, this court found that the observation by a juror of the defendant being transported into the courthouse by sheriffs deputies did not warrant a mistrial where the juror testified that her ability to remain fair and impartial would not be affected.

Discussion

In the instant case, the trial court did not abuse its discretion by denying the motion for a mistrial on the basis that it was possible that a member of the jury venire might have seen the defendant sitting in the courtroom in shackles on the morning that jury selection commenced. Not only was no attempt made to ascertain whether any of the actual jurors witnessed the defendant in restraints, but there also was no evidence that any of the prospective jurors actually saw the defendant in restraints at all. Defense counsel admitted that he was unaware that his client’s legs had been shackled, and the trial judge indicated he did not notice it either. The defendant was not shackled or handcuffed during trial. Accordingly, the only evidence of potential prejudice is the fact that there were three seats in which prospective jurors could possibly have been afforded a view of the defendant’s legs during the time period in which he was restrained. No showing was made that these prospective jurors actually served on the jury. On this evidence alone, the trial court did not abuse its discretion in denying the motion for a mistrial.

This assignment of error lacks merit.

RERROR PATENT

The trial court failed to advise the defendant of his rights under La. C. Cr. P. art. 930.8. The defendant is hereby advised that no application for postconviction relief shall be considered if filed more than two years after the judgment of conviction and sentence has become final. State v. Gipson, 45,121 (La.App.2d Cir.4/14/10), 34 So.3d 1090, writ denied, 2010-1019 (La.11/24/10), 50 So.3d 827.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    Andrea JOSEPH v. NORTH AMERICAN RISK SERVICES, Elite Elevator Service, XYZ Elevator Manufacturer and XYZ Insurance Company.
    No. 2011-CA-1417.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.

      P. Ryan Plummer, John K. Nieset, Christovich & Kearney, L.L.P., New Orleans, LA, for Appellee, Otis Elevator Company.
    Pius A. Obioha, Alistair A. Adkinson, Michal J. Harris, Pius A. Obioha & Associates, LLC, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Judge.

|, The appellant, Andrea Joseph, seeks review of the judgment of the trial court maintaining the exception of prescription, the exception of insufficiency of service of process, and the motion for involuntary dismissal filed by Otis Elevator Company (Otis). For the following reasons, we affirm.

STATEMENT OF FACTS/PROCEDURAL HISTORY

On August 1, 2002, Mrs. Joseph filed a petition for damages, alleging that she was injured on August 1, 2001, when her head was struck while she was loading or unloading an elevator at work for the United States Postal Service.

In her petition for damages, Mrs. Joseph named as defendants Elite Elevator Service (Elite); Elite’s insurer, North American Risk Services (North American); and XYZ Elevator Manufacturer.

While the instant appeal involves the exceptions filed by Otis, a brief history of the case as it involves the other defendants will be presented as our decision requires consideration of the entirety of the record.

Mrs. Joseph filed an informa pauperis application, which the trial court granted on April 14, 2003.

hNorth American filed a motion for summary judgment alleging that it was not the insurer of Elite as alleged by Mrs. Joseph in her petition for damages. On May 7, 2004, the trial court granted the motion for summary judgment, dismissing all of plaintiffs claims against North American.

Elite filed a motion for summary judgment. Elite argued that Mrs. Joseph would not be able to carry her burden of proof as there was no evidence of a previous accident with the elevator gate which allegedly struck Mrs. Joseph, that there was no notice of any alleged problem with the elevator gate, that there was no evidence that Elite negligently serviced the elevator, and/or that there was no evidence of any defect in the elevator gate.

Mrs. Joseph opposed Elite’s motion for summary judgment. Therein, Mrs. Joseph stated that, “Elite Elevator provided an on-site inspector and repairman for the elevators serving the Postal Service at the Loyola location. Since Elite Elevator Service has maintenance control over the elevator that malfunctioned and injured plaintiff, the plaintiff now brings this action against Elite Elevator Service.”

After a hearing, the trial court, on November 15, 2004, granted the motion for summary judgment filed by Elite, dismissing all of Mrs. Joseph’s claims against Elite.

On July 21, 2006, Mrs. Joseph filed a first supplemental and amended petition for damages. Therein, Mrs. Joseph named Otis as the manufacturer of the elevator which caused injury to Mrs. Joseph on August 1, 2001. The first supplemental and amended petition requested service on Otis.

The service return indicated that Otis received service of the original petition for damages on February 24, 2011. Further, the service return indicated that Otis ^received service of the first supplemental and amended petition for damages on March 23, 2011.

In response, Otis filed an exception of insufficiency of service of process and motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(C). Otis additionally filed an exception of prescription.

On July 11, 2011, the trial court issued a judgment maintaining the exception of prescription, the exception of insufficiency of service of process, and the motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(C) filed by Otis. The trial court dismissed all of Mrs. Joseph’s claims against Otis with prejudice.

PEREMPTORY EXCEPTION OF PRESCRIPTION

As a general rule, prescription statutes are to be strictly construed against the application of prescription. In re Medical Review Panel Proceedings of Berry, 09-0752 (La.App. 4 Cir. 1/27/10), 30 So.3d 251; Williams v. Earl K. Long Medical Center, 2009-1483 (La.App. 4 Cir. 5/28/10), 40 So.3d 412, 416, is a recent statement of this black-letter legal principle. In this instance, the applicable prescription statute is La. C.C. art. 3492. La. C.C. art. 3492 provides that a tort claim is subject to a one-year prescriptive period commencing from when the injury or damage is sustained. As a general rule, the party pleading prescription bears the burden of proving the plaintiffs claim has prescribed; however, when a claim has prescribed on its face, the burden shifts to the plaintiff to demonstrate prescription was suspended or interrupted. In re Medical Review Panel for the Claim of Moses, 2000-2643, p. 6 (La.5/25/01), 788 So.2d 1173, 1177; Lopez v. House of Non-Denomination Ministries, 2009-1147 (La.App. 4 Cir. 1/13/10), 29 So.3d 680, 681.

|4Here, Mrs. Joseph alleged that she sustained an injury on August 1, 2001. Mrs. Joseph named Otis as a defendant on July 21, 2006, more than one year after the injury was sustained. Thus, the claim is prescribed on its face.

In support of her assertion that the trial court erred in granting the exception of prescription, Mrs. Joseph argues that the filing of the first supplemental and amended petition related back to the filing of the original petition on August 1, 2002. The code article stating that an amendment to a petition relates back to an earlier filing is La. C.C.P. art. 1153, which provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

Mrs. Joseph further cites Raziano v. Lincoln Property Co., 520 So.2d 1213 (La.App. 5 Cir.1988), in support of her argument that the first supplemental and amended petition relates back to the petition filed on August 1, 2002. Particularly, Mrs. Joseph points to the language in Ra-ziano which cites La. C.C.P. art. 5051. La. C.C.P. art. 5051 provides that the articles of the Code of Civil Procedure are to be construed liberally, with due regard for the fact that the rules of procedure implement the substantive law. Id., 520 So.2d at 1217. (Internal citations omitted.). Further, Mrs. Joseph argues that prescription statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished by it. Id.

Even so, Mrs. Joseph ignores the portion of Raziano which discusses the four factors to be considered under La. C.C.P. art. 1153. While the Raziano court applied those factors to an amendment which added a new plaintiff, courts have held that those factors are to be examined when considering an amendment that ^changes the identity of a defendant. In Hodges v. Republic Western Ins. Co. 2005-0245 (La. App. 4 Cir. 12/14/05), 921 So.2d 175, 178, quoting Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La.1983), this Court outlined the criteria adopted by the Louisiana Supreme Court for determining whether an amendment under La. C.C.P. art. 1153 that changes the identity of a defendant will be allowed to relate back:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; and
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have prescribed.

Mrs. Joseph is correct that the claim presented in the first supplemental and amended petition arises out of the same transaction or occurrence detailed in the original petition.

Mrs. Joseph asserts that Otis has been involved since the inception of the suit and that they have garde of the elevator which caused the injuries. However, the record lacks evidence that Otis received notice of the institution of the suit such that Otis will not be prejudiced in maintaining a defense. The only evidence in the record that Otis received notices of the institution of this suit are dated February 24, 2011 and March 23, 2011, over nine years after the injuries were sustained. Mrs. Joseph asserts that Otis is not prejudiced by the amendment. Yet, if Otis ^conducted an inspection of the elevator at this time, the results would be stale. There is no evidence in the record to support Mrs. Joseph’s assertions.

Further, there is no proof in the record that Otis knew that but for a mistake concerning the identity of the named defendant, the action would have been brought against Otis.

Lastly, Otis is a wholly new and unrelated defendant. Indeed, an employee of Elite, Willie Pitford, stated in his affidavit, attached to Elite’s motion for summary judgment, that Elite entered into a service contract with the United States Postal Service. There is no evidence in the record that Otis and Elite were related.

Thus, we find that the first supplemental and amended petition does not relate back to the filing of the original petition.

Mrs. Joseph asserted that the same parties are involved in the two petitions as the first supplemental and amended petition merely substitutes the previously named “XYZ Elevator Manufacturer” with Otis. Mrs. Joseph contends that Otis was named once its identity was made known. However, “prescription is not interrupted as to an actual defendant when only a fictitious defendant is named in a petition, unless prescription is interrupted by some other means.” Gallina v. Hero Lands Co., 2003-0331, p. 14 (La.App. 4 Cir. 10/7/03), 859 So.2d 758, 767, n. 6, quoting Hill v. Shell Oil Co., 99-1322, p. 4 (La.App. 5 Cir. 4/25/00), 760 So.2d 511, 512-13. Thus, substituting Otis for “XYZ Elevator” is not sufficient to interrupt prescription, as no other means for interruption exists in this case.

Thus, we find no error in the trial court judgment granting the exception of prescription.

^EXCEPTION OF INSUFFICIENCY OF SERVICE/MOTION FOR INVOLUNTARY DISMISSAL

In her second assignment of error, Mrs. Joseph argues that the trial court erred in granting the exception of insufficiency of service of process and the motion for involuntary dismissal.

Mrs. Joseph cites La. C.C.P. art. 1201(C) which provides that service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed, service of citation shall be requested within ninety days of its filing. When service is not requested within ninety days, a defendant may file a motion to voluntarily dismiss pursuant to La. C.C.P. art. 1672(C). That provision states:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declina-tory exception filed by such defendant ... unless good cause is shown why sendee could not be requested, in which case the court may order that service be effected within a specified time.

Mrs. Joseph notes that her first supplemental and amended petition requested service upon Otis. Mrs. Joseph alleges that she had no reason to suspect that service had not been perfected. In her appellant brief, Mrs. Joseph states that she learned that there was confusion in either the Sheriffs office or the Clerk of Court’s office and that service was withheld due to an outstanding filing fee balance. Mrs. Joseph alleges that she never received notice of this outstanding balance and did not suspect that service was withheld. Therefore, Mrs. Joseph concludes that the trial court erred in maintaining the exception of insufficiency of service of process and the motion for involuntary dismissal.

|sThis Court faced a similar situation in Ayers v. Goodwill Industries, 2003-1576 (La.App. 4 Cir. 3/10/04), 870 So.2d 348. In Ayers, the plaintiff filed a petition for damages, along with an application to proceed in forma pauperis. The petition requested service upon Goodwill Industries. Id., p. 1, 870 So.2d at 359. Later, the application to proceed in forma pauperis was denied, and the petition was not served. Over three years later, plaintiff discovered the lack of service and requested service again. The trial court dismissed the plaintiffs claims against Goodwill Industries, under La. C.C.P. art. 1201(C) and 1672(C). Id., p. 2, 870 So.2d at 359. While noting that good cause is not defined in La. C.C.P. art. 1672(C), this Court stated “it is well established in our jurisprudence that mere confusion regarding a party’s correct name or inadvertence or mistake in requesting service on the part of plaintiffs counsel is not a sufficient basis for good cause.” Id. This Court noted that counsel for plaintiff assumed that service would be made as requested and did not check the court record for over three years. The Court found “this type of inadvertence or mistake is clearly not ‘good cause’ for the failure to request service within ninety days.” Id., p. 3, 870 So.2d at 349.

Likewise, counsel for Mrs. Joseph failed to check the record to ensure service was made as requested and presumed that it would be made. The request to re-issue service was filed on February 16, 2011, over four years after the filing of the first supplemental and amended petition. Counsel’s inadvertence or mistake in assuming that service would be made, and in not verifying service by checking the record in over four years, is not good cause.

Thus, we find the trial court did not err in granting the exception of insufficiency of service of process and the motion for involuntary dismissal.

^CONCLUSION

Accordingly, the judgment of the trial court granting the exception of prescription, the exception of insufficiency of service, and the motion for involuntary dismissal is affirmed.

AFFIRMED


author: EZELL, Judge.

text:
    CREOLE STEEL, INC. v. Ricky STEWART.
    No. WCA 11-1285.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Scott James Pias, Lake Charles, LA, for Defendant/Appellant, Ricky Stewart.
    Joseph Richard Pousson, Jr., Plauché, Smith & Nieset, LLC, Lake Charles, LA, for Plaintiff/Appellee, Creole Steel, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

|,Ricky Stewart appeals a judgment of the Office of Workers’ Compensation (OWC) refusing to award penalties and attorney fees for his employer’s failure to authorize the purchase of Marinol, a prescription form of marijuana. Mr. Stewart also complains that the workers’ compensation judge (WCJ) did not order that his employer reimburse him the money he advanced to purchase the medication.

FACTS

Mr. Stewart injured his cervical spine in 2000 while employed by Creole Steele, Inc. In October 2001, Mr. Stewart began treatment with Dr. Frank Lopez who specializes in physical medicine and rehabilitation. In May 2009, Dr. Lopez prescribed Mari-nol. In June 2009, Creole Steel filed a disputed claim form disputing the reasonable medical necessity of Marinol.

In January 2011, a trial on the issue was held. After hearing testimony and reviewing the evidence, the WCJ ordered an independent medical examination of Mr. Stewart in the area of pain management by Dr. James H. Eddy. Later, a judgment was signed by the WCJ who concluded that Dr. Lopez should proceed with his current recommendation for the use of Marinol while investigating other treatment alternatives. Mr. Stewart appealed the judgment due to its failure to award penalties and attorney fees and order reimbursement of the amounts he has already paid for the Marinol.

PENALTIES AND ATTORNEY FEES

Mr. Stewart argues the WCJ erred in not awarding penalties and attorney fees for Creole Steele’s failure to authorize the prescribed Marinol and for failure to reimburse him for his purchase of the prescribed medication.

Louisiana Revised Statutes 23:1201(E) provides: “[mjedieal benefits payable under this Chapter shall be paid within sixty days after the employer or | ^insurer receives written notice thereof.” Failure to pay timely subjects the employer to penalties and attorney fees unless the claim is reasonably controverted or nonpayment results from conditions over which the employer had no control. La. R.S. 23:1201(F)(2). “A claim is reasonably controverted when the employer or insurer produces factual or medical information that reasonably counters the claimant’s evidence.” Bourgeois v. Brown’s Deli & Mkt, Inc., 09-290, p. 7 (La.App. 3 Cir. 10/14/09), 21 So.3d 1072, 1077. A WCJ’s decision on whether to award penalties and attorney fees is subject to great discretion which will not be disturbed absent an abuse of discretion. Briscoe v. McNeese State Univ., 11-872 (La.App. 3 Cir. 12/7/11), 80 So.3d 700.

On his office visit to Dr. Lopez on July 15, 2008, Mr. Stewart tested positive for marijuana. Dr. Lopez told Mr. Stewart that he would no longer treat him if he continued to test positive for marijuana. Mr. Stewart explained to Dr. Lopez that the use of marijuana gave him some relief from his pain and improved his capacity for sleep.

Dr. Lopez testified that he could offer Mr. Stewart a legal option in the form of Marinol which would provide relief to Mr. Stewart. Dr. Lopez indicated that he uses Marinol as an optional drug in order to refrain from increasing narcotic usage. He prescribed Marinol to Mr. Stewart in May 2009.

On May 16, 2009, Cindy Moore, a claims representative with Creole Steele’s insurance company, faxed a request to Dr. Lopez attaching information on the prescribed drug and requesting the condition for which the Marinol was prescribed. She never received information and followed up with additional requests on May 28, 2009, and June 22, 2009, indicating that Marinol was indicated for (1) anorexia associated with weight loss in patients with AIDS and (2) nausea and vomiting associated with cancer chemotherapy in patients who have | ¡¡failed to respond adequately to conventional antiemetic treatments. Ms. Moore indicated that she had not been able to find any literature that suggested that Marinol was used to treat injuries such as Mr. Stewart’s. She also expressed concerned that Mr. Stewart had tested positive in July 2008.

Dr. Lopez admitted that he received the requests from Ms. Moore, which were also included in his medical records. By June 2009, Creole Steele filed the disputed claim form regarding the prescription of Mari-nol. In August of 2009, Dr. Lopez finally complied with the requests and sent a letter to Ms. Moore summarizing some studies.

Dr. Lopez admitted that the U.S. Food and Drug Administration (FDA) has not approved Marinol for treating musculo-skeletal chronic pain. He agreed that Marinol has only been approved as medication for nausea induced from chemotherapy and as helpful in individuals that need to improve their nutrition, such as AIDS patients.

On December 17, 2009, Mr. Stewart saw Dr. Sandra Weitz with Comprehensive Pain Management in Baton Rouge for a second opinion. Dr. Weitz opined that a long-lasting pain medication may give Mr. Stewart a more even level of pain control and did not see any indication for prescribing Marinol. She further suggested that if Mr. Stewart’s pain was properly controlled, there would be no need for Marinol because the Marinol only helps to decrease his anxiety.

After a hearing on the matter and on order of the court, Dr. Eddy performed an independent medical examination on April 15, 2011. He also suggested long-lasting pain medications in addition to spinal cord stimulation.

While the WCJ decided that Dr. Lopez should proceed with his current recommendation for the use of Marinol, we find she did not abuse her discretion in | refusing to assess penalties' and attorney fees. In addition to two other doctors recommending the use of long-lasting narcotics as opposed to Marinol, the FDA does not even recommend Marinol for treatment of pain conditions related to bodily injuries. Obviously, this drug is used in very limited circumstances.

REIMBURSEMENT

Mr. Stewart claims that the WCJ should have ordered Creole Steele to reimburse him the money that he advanced to purchase the prescribed medication.

Evidence introduced at trial and testimony indicate that Mr. Stewart spent a total of $420.54 on three prescriptions for Dronabinol, also known as Marinol. Since the WCJ. found that the prescription of Marinol was a necessary medical expense pursuant to La.R.S. 23:1203, we find she erred in refusing to order reimbursement to Mr. Stewart of the amounts he has already spent on the medication. Therefore, we will amend the judgment to include reimbursement for payment of these prescription expenses.

The judgment of the Office of Workers’ Compensation is amended ordering Creole Steele, Inc. to reimburse Ricky Stewart the amount of $420.54 as reimbursement for expenses he personally incurred in paying for the Marinol prescription. In all other respects, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are assessed to Creole Steele, Inc.

AFFIRMED AS AMENDED.


author: THIBODEAUX, Chief Judge.

text:
    MOTHER OF EDEN, LLC v. Chris THOMAS.
    No. 11-1303.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    Rehearing Denied April T8, 2012.

      R. Michael Moity, Jr., The Moity Law Firm, New Iberia, LA, for Plaintiff/Appellant, Mother of Eden, LLC.
    Chaz H. Roberts, Lafayette, LA, for Defendant/Appellee, Chris Thomas.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

| ] Plaintiff, Mother of Eden, LLC (“Eden”), attempted to obtain a preliminary injunction against Defendant, Chris Thomas, after Thomas allegedly made defamatory statements about Eden’s CEO to the company’s customers and retailers. When Eden’s attorney failed to appear at the injunction hearing, the trial court sustained Thomas’ Exception of No Cause of Action (“Exception”), dismissed the Petition for Injunction (“Petition”), and awarded sanctions and attorney fees to Thomas. Eden then filed a Motion for New Trial, asserting that the parties reached a settlement prior to the hearing. Following a hearing, the trial court denied Eden’s Motion and awarded additional attorney fees to Thomas. Eden appeals. For the following reasons, we affirm in part and reverse in part.

I.

ISSUE

We must decide whether the trial court erred by:

(1) sustaining Thomas’ Exception and dismissing Eden’s Petition;
(2) denying Eden’s motion for new trial; and,
(3) assessing sanctions and attorney fees against Eden.

II.

FACTS AND PROCEDURAL HISTORY

Eden is a company that makes organic baby diapers. Tereson Dupuy founded the company and is its majority member/manager. In August 2010, Dupuy learned that Thomas had allegedly made disparaging comments about her and her company on an internet blog. On behalf of Eden, Du-puy subsequently initiated the underlying action by filing a Petition, seeking to prohibit Thomas from “contacting any and all retailers of Mother of Eden as well as posting any other malicious [ 2information that is unfounded and untrue on any website.” In its Petition, Eden asserted that Thomas published “slanderous and liablous [sic]” comments regarding Dupuy.

Thomas responded to Eden’s Petition by filing an Answer and Exception, asserting that Eden was not entitled to an injunction because (1) Eden failed to plead irreparable injury and (2) all alleged comments were true. The trial court scheduled a hearing on the Petition and Exception.

Prior to the scheduled hearing, attorneys for both parties attempted to reach a settlement. Despite numerous communications between them, the parties never signed a settlement agreement. The trial court held a hearing on the Petition and Exception on May 16, 2011. Eden’s counsel failed to appear at the hearing. At the hearing, the trial court sustained Thomas’ Exception and denied Eden’s Petition. The trial court imposed sanctions and awarded attorney fees pursuant to La. Code Civ.P. art. 863, reasoning that Eden filed the Petition to harass Thomas, that exhibits to the Petition facially contradicted the allegation of defamation, and that the Petition contained inappropriate accusations regarding Thomas that could constitute defamation.

On May 25, 2011, Eden filed a Motion for New Trial, asserting that the parties settled the matter prior to the May 16 hearing. The trial court held a hearing on Eden’s Motion and denied the Motion in open court. Specifically, the trial court ruled that no consummated settlement agreement existed between the parties, and thus, no justification existed for Mr. Moity’s absence at the May 16 hearing. The trial court awarded attorney fees incurred to defend against the Motion, stating that Mr. Moity “acknowledged [and] admitted ... unprofessional conduct.”

|aEden now appeals the trial court’s denial of its Petition, denial of its Motion for New Trial, and award of sanctions and attorney fees to Thomas in conjunction with both the Petition and the Motion.

III.

LAW AND DISCUSSION

Standard of Review

“A trial court’s determination as to whether to issue a preliminary injunction is subject to the abuse of discretion standard of review.” Gautreau v. Trahan, 07-875, p. 4 (La.App. 3 Cir. 12/5/07), 971 So.2d 445, 447. Similarly, a trial court’s ruling on a Motion for New Trial is reviewed under an abuse of discretion standard. Guillory v. Lee, 09-75 (La.6/26/09), 16 So.3d 1104. An award of sanctions under La.Code Civ.P. art. 863, however, is reviewed for manifest error. Richardson v. Whitney Nat. Bank, 06-803 (La.App. 5 Cir. 2/27/07), 953 So.2d 836, writ denied, 07-670 (La.5/18/07), 957 So.2d 153.

Discussion

Preliminary Injunction and Exception of No Cause of Action

Eden asserts that the trial court erred by denying Eden’s Petition and granting Thomas’ Exception. Specifically, Eden argues that it presented a prima facie case for an injunction. We disagree and find that the trial court did not abuse its discretion in denying Eden’s Petition and granting Thomas’ Exception.

A trial court has great discretion to grant or deny a request for a preliminary injunction. Burnham Broadcasting Co. v. Williams, 629 So.2d 1335 (La.App. 4 Cir.1993), writ denied, 94-150 (La.2/25/94), 632 So.2d 770, cert. denied, 513 U.S. 814, 115 S.Ct. 69, 130 L.Ed.2d 25 (1994). To be entitled to relief, the moving party must show that if she is not granted in-junctive relief, she will suffer irreparable injury, and she must make a prima facie showing that she will prevail on the merits. Camp, Dresser & McKee, Inc. v. Steimle & Associates, Inc., 94-547 (La.App. 5 Cir. 2/15/95), 652 So.2d 44. “[W]hile the trial court has broad discretion in deciding whether to grant injunc-tive relief, injunction is an extraordinary remedy and should only issue where the party seeking it is threatened with irreparable loss without adequate remedy at law....” Gautreau, 971 So.2d at 450. “Irreparable injury, for purposes of the preliminary injunction, means that the applicant cannot be adequately compensated in money damages for the injury or that he will suffer injuries which cannot be measured by pecuniary standards.” Camp, Dresser & McKee, 652 So.2d at 47. A movant is not required to show irreparable injury where the offensive act is unlawful. Id.

On appeal, Eden alleges that the comments Thomas allegedly made on internet blogs are a violation of a separate injunction entered against Thomas. Thus, Eden argues that it need not prove irreparable injury since Thomas’ actions are per se unlawful. Eden’s arguments make repeated reference to this previous injunction that was never introduced into evidence. Appellate courts are courts of record and may not review evidence that is not in the appellate record, and they may not receive new evidence. La.Code Civ.P. art. 2164; Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La.5/21/08), 983 So.2d 84. Documents quoted in memoranda do not constitute evidence and cannot be considered as such on appeal. Id. Although Eden apparently deems it important, the previous injunction is not a matter of record, and we do not consider it on appeal.

Instead, we turn to the trial court’s judgment denying Eden’s Petition and granting Thomas’ Exception and evaluate its judgment for abuse of discretion. A review of Eden’s Petition reveals that it fails to make a fundamental showing of irreparable injury. Indeed, the Petition makes no mention of damages—actual or speculative—suffered by Eden because of Thomas’ alleged actions. Because Eden failed to plead or prove any irreparable injury, we find that the trial court did not abuse its discretion in denying Eden’s Petition and granting Thomas’ Exception.

\ ¡Motion for New Trial

Eden argues that the trial court abused its discretion in denying its Motion for New Trail. Though its argument is short and vaguely cites supporting authority, Eden appears to argue that failure to grant a new trial results in a miscarriage of justice. La.Code Civ:P. art. 1973 provides that the trial court may grant a new trial if there exists good grounds therefor.

Courts adopt “the well-established principle that a new trial should be granted in cases where the enforcement of the judgment would be inequitable and unconscionable.” Hairston v. Monroe Gas Corp., 308 So.2d 809, 811 (La.App. 2 Cir. 1975); Crump v. Bank One Corp., 35,990 (La.App. 2 Cir. 5/8/02), 817 So.2d 1187. Thus, if a trial court is convinced that the judgment, even if free from legal error, does not do substantial justice, it may properly grant a new trial. Gilley v. Wendy’s, Inc., 31,358 (La.App. 2 Cir. 12/9/98), 723 So.2d 517; Dawson v. Mazda Motors of America, Inc., 475 So.2d 372 (La.App. 1 Cir.1985).

Courts have specifically considered circumstances where a party asserts that the conduct of an attorney has created a miscarriage of justice warranting a new trial. Lapse of legal rights due to a party’s delay, in particular, has not been held to warrant a new trial. In Crump, FGB’s failure to file an answer resulted in a default judgment against FGB. The court declined to grant a new trial, noting that FGB lacked a good excuse or reason for its failure to file an answer and held that the “mere failure to file an answer, without more, is not adequate grounds to grant a new trial.” Crump, 817 So.2d at 1193. Similarly, in circumstances where a defendant failed to file an answer to a default judgment and asserted only human error as his defense, the court declined to find an abuse of discretion in the trial court’s denial of the motion for new trial, commenting that “[m]ere human error was not enough to convince the trial court that a miscarriage of justice would result if a new trial was not granted.” Hickman v. Wm. Wrigley, Jr. Co., Inc., 33,896, p. 4 (La.App. 2 Cir. 10/4/00), 768 So.2d 812, 816.

Eden makes much of its attorney’s failure to appear at the injunction hearing, asserting that its attorney was under the misguided assumption that the parties had reached a settlement. The record reflects, however, that the parties never executed a settlement agreement. No meeting of the minds occurred with respect to the settlement communications. Common sense dictates that Eden’s counsel should have simply appeared at the hearing. Louisiana jurisprudence does not consider error in an attorney’s performance of his duty as grounds for granting a new trial. Thus, Eden cannot argue that negligence on the part of its attorney resulted in a miscarriage of justice warranting a new trial. See Maxie v. Gines, 95-986 (La.App. 3 Cir. 1/31/96), 670 So.2d 344, writ denied, 96-560 (La.5/10/96), 672 So.2d 921. We find that the trial court did not abuse its discretion in denying Eden’s Motion for New Trial.

Award of Sanctions and Attorney Fees

Finally, we turn to Eden’s assignment of error that the trial court erroneously awarded sanctions and attorney fees to Thomas. We agree that the trial court erroneously awarded sanctions and attorney fees to Thomas.

The trial court’s judgment, dated May 16, 2011, indicates that the trial court awarded sanctions and attorney fees in accordance with La.Code Civ.P. art. 863. Article 863, sections (D) and (E) state:

D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
17E, A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.

This article and relevant jurisprudence make clear that sanctions can only be imposed on motion, either by a party or by the court, and after a hearing. La.Code Civ.P. art. 863; Petroleum Helicopters, Inc. v. Gen. Motors Corp., 561 So.2d 208 (La.App. 8 Cir.1990). Here, we may assume that the trial court properly brought its own motion for sanctions and attorney fees, but we cannot excuse the absence of a hearing before sanctions and attorney fees were awarded. The record indicates that Eden’s counsel had no opportunity to respond to the proposed award of sanctions and attorney fees. Thus, we find the trial court erred by awarding sanctions and attorney fees without first holding a hearing.

The trial court also awarded attorney fees in its judgment dated August 29, 2011, following a hearing on Eden’s Motion for New Trial. It is difficult to discern from the record the basis upon which attorney fees were levied. If they were levied in connection with Article 863, they were improper because, again, the trial court failed to hold a hearing before imposing the attorney fees. If they were not levied under Article 863, they remain improper because a party shall recover attorney fees only when authorized by statute or stipulated by contract. Haskell v. Hawkins, 580 So.2d 453 (La.App. 5 Cir. 1991). Here, the parties have no contract, and no applicable statute authorizes the award of attorney fees. The trial court erred in awarding attorney fees in its August 29, 2011 judgment.

Given our finding that the trial court erroneously imposed sanctions and attorney fees to Thomas, we reverse that portion of the trial court’s judgment.

_h.iv.

CONCLUSION

For the reasons articulated above, we affirm in part, reverse in part, and render the judgment of the trial court. Costs of this appeal are assessed against Appellant, Mother of Eden.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Eden’s counsel, Michael Moity, asserts that his failure to appear was the result of his misunderstanding that the parties had reached an amicable settlement. A careful review of the record indicates that no settlement agreement was ever signed by the parties, and Mr. Moity was remiss in not attending the hearing. His shameless attempts to cast blame on Thomas’ counsel is unconvincing.

      . Both parties assert that the trial court awarded attorney fees and sanctions in the August 29, 2011 judgment. We see nothing in the record indicating an award of sanctions. If sanctions were awarded, however, they would also be improper because no hearing was held in accordance with La. Code Civ.P. art. 863(E).


author: AMY, Judge.

text:
    Melissa HORACEK v. Davelyn WATSON, et al.
    No. 11-1345.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Thomas O. Wells, Alexandria, LA, for Defendants/Appellants, Davelyn Watson, Carl Watson.
    Robert G. Nida, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiff/Appellant, Melissa Horacek.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

_JjThis protracted litigation stems from allegations by the plaintiff that the defendants wrongfully evicted her from her apartment and wrongfully seized her property. After a trial, the trial court found that the defendants had wrongfully evicted the plaintiff but that the plaintiff had not proven damages. Both the plaintiff and the defendants appeal. For the following reasons, we affirm.

Factual and Procedural Background

None of the parties dispute that, in October of 2001, the plaintiff, Melissa Hora-cek, signed a six-month lease for an apartment on Vance Avenue in Alexandria, Louisiana. The apartment was owned by one of the defendants, Carl Watson, and managed by Davelyn Watson, his sister and the remaining defendant. There was testimony that the apartment was burglarized in the spring of 2002.

At this point, the plaintiffs and the defendants’ versions of events diverge. The plaintiff contends that, after the break-in, she started staying with her boyfriend because she was afraid the apartment was unsafe. The plaintiff testified that, in May of 2002, she informed Ms. Watson that she would be vacating the apartment during June of 2002 and that they agreed that her deposit would be credited towards prorated rent. According to the plaintiff, during the month of June, she went to the apartment regularly to pack boxes and to turn the lights on and off. On June 18, 2002, she returned to the apartment with her boyfriend and some other friends in order to move her belongings. However, the plaintiff testified that the locks had been changed and all of her belongings had been removed from the apartment with the exception of some small items in black plastic bags. That same day, after confronting Ms. Watson about the situation, the l2plaintiff contacted the police. According to a police report submitted into evidence, Ms. Watson told the investigating officer that she had been unable to contact the plaintiff, so she “had the house cleared out and the locks changed.”

The defendants’ version of events is significantly different. According to Ms. Watson, there was no agreement that the plaintiffs deposit would be applied towards' prorated June rent. Ms. Watson testified that, although she spoke with the plaintiff on one occasion about the rent, she was unable to reach her thereafter. Ms. Watson testified that, on June 13, 2002, she posted a letter concerning the non-payment of rent on the plaintiffs front door and delivered a letter to the plaintiffs place of employment. Although two versions of the letter were admitted into evidence, both directed the plaintiff to vacate the apartment by June 15, 2002, and that, if the plaintiff did not do so, Ms. Watson would consider the apartment abandoned.

According to the defendants, on June 17, 2002, Ms. Watson, Norma Walker, and Richard Walker went to the apartment. As discussed by the trial court in its reasons for judgment, all three testified that the apartment was “virtually empty of all furniture and was in complete disarray. Ms. Walker testified that the apartment was full of trash and looked abandoned. There were dirty diapers and used condoms on the floor. Ms. Walker testified that she and Ms. Watson gathered up and threw out all the trash.” However, Ms. Walker and Ms. Watson testified that they placed any items that appeared to be personal items, including baby pictures, in black trash bags and left them in the corner of the den. Ms. Watson denied that she changed the locks on the apartment until June 21, 2002.

On June 24, 2002, Ms. Watson filed an eviction suit in the Alexandria City Court. After the plaintiff failed to appear, a judgment of eviction was entered on July 9, 2002.

IsThereafter, the plaintiff filed this suit, seeking damages for wrongful eviction, breach of contract, and wrongful seizure of property. The defendants filed a recon-ventional demand, seeking damages for unpaid rent, late fees, damage to an air conditioning unit and refrigerator, and cleaning fees. After extended procedural maneuvering, the case went to trial in October of 2010. At trial, the parties submitted various items into evidence. However, the plaintiff presented only her own testimony and called Ms. Watson as an adverse witness. The defendants offered the testimony of Ms. Watson, as well as that of the Walkers. After receiving all the evidence, the trial court requested post-trial briefs and took the matter under advisement. After issuing lengthy reasons for judgment, the trial court entered a judgment finding that the defendants wrongfully evicted the plaintiff. However, finding that the plaintiff did not meet her burden of proof with regard to damages, the trial court denied the plaintiffs request for damages. Further, the trial court denied the defendants’ reconventional demand.

The plaintiff appeals, asserting as error that “[t]he trial court refused to award damages for wrongful eviction in light of the ‘uncalled witness rule.’ ” The defendants have also appealed, asserting that the trial court erred “by ruling that if notice is given to a tenant to vacate and the tenant abandons the property the rental lessee must wait five days after notice was given before the landlord may take possession of the rental property.”

Discussion

The Uncalled, Witness Rule

In her sole assignment of error, the plaintiff contends that the trial court erred in invoking the “uncalled witness” rule, and that, based on this error, this |4court should perform a de novo review of the record. The plaintiff contends that the trial court erred in applying the uncalled witness rule because she has no control over the witnesses the trial court contemplated she should have brought to testify in her favor, especially given the lapse in time between the events giving rise to this litigation and trial. The plaintiff also contends that she otherwise satisfied her burden of proof.

In its reasons for judgment, the trial court found that the plaintiffs testimony, a list of the alleged missing items, and a video of her apartment, as it existed before the robbery, were insufficient to meet her burden of proof with regard to the items she alleged had been wrongfully seized by the defendants. After reaching that conclusion, the trial court stated:

The court also finds significant the fact that Ms. Horacek failed to bring eye witnesses to testify on her behalf. Surely, Mr. Dubroc was familiar with Ms. Horacek’s belongings and could testify on her behalf as to which items she left in the apartment and which items she had already moved into his apartment. Ms. Horacek’s failure to produce any witnesses on her behalf raises an adverse presumption regarding the testimony of the missing witnesses.

The plaintiffs contentions only concern the trial court’s determination that she had failed to prove damages as a result of the wrongful eviction. The trial court’s determination as to an award of damages is a finding of fact, and is, therefore, subject to the manifest error-clearly wrong standard of review. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. Accordingly, “in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.” Id. at 1094.

l5With regard to the uncalled witness rule, the supreme court discussed its application in Driscoll v. Stucker, 04-589, pp. 18-19 (La.1/19/05), 893 So.2d 32, 47, stating:

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebutta-ble and is tempered by the fact that a party need only put on enough evidence to prove the case. Safety Ass’n of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App. 2 Cir. 6/20/01), 793 So.2d 218, writ denied, 2001-2557 (La.12/07/01), 803 So.2d 973. Explaining that adverse presumption, the Fourth Circuit recently noted “ ‘[w]hen a defendant in a civil case can by his own testimony throw light upon matters at issue, necessary to his defense and particularly within his own knowledge, and fails to go upon the witness stand, the presumption is raised and will be given effect, that the facts, as he would have them do not exist.’ ” Taylor v. Entergy Corp., 2001-0805 (La.App. 4 Cir. 4/17/02), 816 So.2d 933 (quoting Davis v. Myers, 427 So.2d 648, 649 (La.App. 5 Cir.1983)). This adverse presumption is referred to as the “uncalled witness” rule and applies “when ‘a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence’ and fails to call such witnesses.” Id. (quoting 19 FRANK L. MARAIST, LOUISIANA CIVIL LAW TREATISE: EVIDENCE AND PROOF, § 4.3 (1999)). Despite the advent of modern, liberal discovery rules, this rule remains vital, especially in cases, such as this one, in which a witness with peculiar knowledge of the material facts is not called to testify at trial.

However, “[t]he rule is intended to punish parties who are withholding witness testimony, not to penalize parties who do not have the power to produce witnesses to testify.” Roth v. New Hotel Monteleone, L.L.C., 07-549, pp. 6-7 (La.App. 4 Cir. 1/30/08), 978 So.2d 1008, 1012.

As a matter of course, we note the well-settled rule that the trial court’s reasons for judgment form no part of the judgment, and appellate courts review judgments, not reasons for judgment. Wooley v. Lucksinger, 09-571 (La.4/1/11), 61 So.3d 507. The trial court’s reasons are “merely an explication of the trial court’s determinations. They do not alter, amend or affect the final judgment.” Id. at 572. However, the appellate court is “entitled to use those reasons to gain insight into the district court’s judgment.” Id.

LThe judgment in this case simply states that “plaintiff failed to prove damages and therefore, plaintiffs claim for damages is denied.” The record, reviewed in its entirety, provides adequate support for this determination. Although the plaintiff testified that the majority of her belongings, ranging from personal items to furniture, were still in the apartment. The plaintiff submitted a list of the items she alleged were missing as well as a video of her apartment in its pre-burglary condition into evidence. However, the plaintiffs testimony was contradicted by the testimony offered by the defendants. Ms. Watson, Mr. Walker, and Ms. Walker all testified that, when they entered the apartment on June 17, 2002, it was filthy and contained primarily trash. In its reasons for judgment, the trial court acknowledged that the plaintiff and the defendants offered “two distinctly different accounts of the events in question.” It was within the trial court’s purview to make credibility determinations, and, with regard to this issue, it clearly credited the testimony of Ms. Watson and the Walkers over that of the plaintiff. See Brown v. American Cent. Cas. Co., 10-135 (La.App. 3 Cir. 6/2/10), 40 So.3d 452.

Additionally, we observe that, in its reasons for judgment, after discussing why the plaintiff had failed to meet her burden of proof, the trial court also referred to the uncalled witness rule. Specifically, the trial court observed that the testimony of Joe Dubroc, the plaintiffs ex-boyfriend, could have been favorable to her cause. Application of the uncalled witness rule is discretionary on the part of the trial court. Roth, 978 So.2d 1008. We find no error in the trial court’s reference to the uncalled witness rule, and thus, no error of law that would warrant a de novo review of the evidence. See also Easter v. Direct Ins. Co., 42,178, 42,179 (La.App. 2 Cir. 5/9/07), 957 So.2d 328.

This assignment of error is without merit.

| tFinding of Wrongful Eviction

The defendants have also appealed, asserting that the trial court erred in finding that, where a tenant has abandoned the property, a landlord must wait five days after providing a notice to vacate before taking possession of the property.

A lessor who fails to meet his or her obligations under the provisions of La.Civ. Code art. 2682 by wrongfully dispossessing the lessee of the premises is generally liable for any resulting damages. La.Civ. Code art. 2700; Girgis v. Macaluso Realty Co., Inc., 00-0758 (La.App. 4 Cir. 1/31/01), 778 So.2d 1210, writ denied, 01-1087 (La.6/1/01), 793 So.2d 199. The Louisiana Civil Code provides an exception to that liability where the lessor follows the procedures set forth in La. Code of Civil Procedure arts. 4701-4735. Girgis, 778 So.2d 1210.

Further, there is a jurisprudential exception which exempts the lessor from liability for failing to comply with the eviction procedure before taking possession if the lessee unjustifiably abandons the leased premises. Girgis, 778 So.2d 1210. See also Richard v. Broussard, 495 So.2d 1291 (La.1986). However, where the lessor resorts to “self-help” to retake the property and is not justified in his or her belief that the leased premises are abandoned, the lessor will be liable for trespass and wrongful seizure of the lessee’s property. Girgis, 778 So.2d 1210. “Abandonment of a leased premise ‘requires voluntary relinquishment of the premises by the lessee with the intent to terminate without vesting ownership in another.’ ” Id. at 1213 (quoting Walters v. Greer, 31,480, p. 8 (La.App. 2 Cir. 1/22/99), 726 So.2d 1094, 1098). Whether a leased premise has been abandoned is a finding of fact subject to the manifest error-clearly wrong standard of review. Id.

Although the defendants contend that the trial court erred in finding that they were required to notify the plaintiff pursuant to La.Code Civ.P. art. 4701 because she had abandoned the apartment, we find no merit to this argument. Although not 1 ^discussed in its reasons for judgment, the record supports a finding by the trial court that, at the time Ms. Walker began the process of evicting the plaintiff, she did not believe that the plaintiff had abandoned the apartment. Specifically, Ms. Walker testified that, at the time she sent the plaintiff the notice to vacate, she assumed that the plaintiffs belongings were still in the apartment. Accordingly, the eviction procedures established by the Louisiana Code of Civil Procedure would be applicable. See also Central Oil & Supply Co. v. Clary, 00-1459 (La.App. 3 Cir. 2/28/01), 781 So.2d 772; Bill Kassel Farms, Inc. v. Paul, 96-462 (La.App. 3 Cir. 12/11/96), 690 So.2d 807, writ denied, 97-712 (La.4/25/97), 692 So.2d 1095.

Louisiana Code of Civil Procedure Article 4701 addresses the proper procedure for notifying a tenant that he or she must vacate the landlord’s premises. It states (emphasis added), in relevant part:

When a lessee’s right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, nonpayment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee. The notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises.

Further, La.Code Civ.P. art. 4731(B) (emphasis added) states that:

After the required notice has been given, the lessor or owner, or agent thereof, may lawfully take possession of the premises without further judicial process, upon a reasonable belief that the lessee or occupant has abandoned the premises. Indicia of abandonment include a cessation of business activity or residential occupancy, returning keys to the premises, and removal of equipment, furnishings, or other movables from the premises.

In its reasons for judgment, the trial court did state that, given the apartment’s state of disarray when the defendants entered it on June 17, 2002, “[i]t is possible that Ms. Watson rightly concluded that the property had been abandoned.” However, the trial court’s discussion of this issue does not amount to |9a definitive finding of fact that the apartment had been abandoned. Further, as previously discussed, even if “Ms. Watson rightly concluded that the property had been abandoned” on June 17, 2002, the record does not indicate that, prior to that date, she had a “reasonable belief’ that the premises had been abandoned.

As discussed by the trial court in its reasons for judgment, the record is clear that the defendants failed to comply with the five-day notice requirement delineated in La.Code Civ.P. art. 4701. The trial court found that the defendants provided the required notice to the plaintiff on June 13, 2002, and demanded that she vacate the leased premises by June 15, 2002. The trial court also found that the defendants “cleaned out” the apartment on June 17, 2002, and had the locks changed on or before June 18, 2002. Despite the defendants’ assertion to the contrary, the clear language of La.Code Civ.P. art. 4731(B) permits a lessor to take possession of the leased premises without further judicial process after the required notice is given and upon a reasonable belief that the premises have been abandoned. The trial court’s finding that the defendants failed to provide the proper notice forecloses the applicability of the provisions of Article 4731(B).

Therefore, we find no error in the trial court’s application of La.Code Civ.P. arts. 4701 and 4731 and its finding that the defendants wrongfully evicted the plaintiff. This assignment of error is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in all respects. One-half of the costs of this appeal are apportioned to the plaintiff, Melissa Hora-cek. The remaining one-half of the costs of this appeal are apportioned to the defendants, Carl Watson and Davelyn Watson.

AFFIRMED.

      . In her petition, the plaintiff asserted that she returned to move her belongings on June 16, 2002. However, Ms. Watson testified that she went to the apartment on June 17, 2002, and the police report is dated June 18, 2002.

      . In 2006, the plaintiff appealed the trial court’s grant of an exception of res judicata. A panel of this court reversed the grant of res judicata and remanded for further proceedings in Horacek v. Watson, 06-210 (La.App. 3 Cir. 7/5/06), 934 So.2d 908.