author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Lisa ROBINSON, Appellant.
    No. 45,820-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Louisiana Appellate Project by Mark 0. Foster, for Appellant.
    Charles Rex Scott, II, District Attorney, Brady O’Callaghan, Kodie Smith, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   MOORE, J.

| ¡¡The defendant, Lisa Robinson, was convicted as charged of second degree murder for the stabbing death of Richard England, an enlisted airman stationed at Barksdale Air Force Base. She was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. She now appeals her conviction, alleging three errors at trial. Finding no merit in the assignments of error, we affirm the conviction and sentence.

Facts

Emily Moore, now Emily Moore McKenzie, resided in the Haystack Apartments in Shreveport in the fall of 2007. Although the victim, Richard England, had his own apartment in another complex, he resided mostly in Moore’s apartment with Emily and her son, Cole. While living at the Haystack Apartments, Moore befriended the defendant, Lisa Robinson, age 18, who lived in the complex with her father. Approximately two weeks Lprior to the murder on October 29, 2007, Lisa’s father put her out of his apartment. She went to Moore’s apartment and asked to stay there, and Moore let the defendant sleep on the sofa in her apartment.

Soon Moore began to notice that small amounts of money and bottles of liquor were inexplicably missing from her purse or the apartment. On the weekend of October 26, 2007, Richard, Emily and her son went camping at Harmon - Lake on Barksdale AFB grounds. On.ce there, Emily discovered that her credit card was missing from her wallet. The couple returned to Richard’s apartment early on October 28 where Emily checked her credit card balance online. She discovered that charges had been made on the card up to the card’s maximum charge limit. She- called, the credit card company and learned that the transactions had been made while she and Richard were camping. Emily and Richard then planned- to catch Lisa doing something wrong. Emily called Lisa and told her they would be late coming in from their camping trip. In fact, the couple planned to return to the apartment early, hoping they would catch her doing something improper there.

When the couple returned to Emily’s apartment, they found Lisa on the computer. Emily searched Lisa’s purse when she was out of the room but found nothing incriminating. Richard searched the computer for transactions. He discovered several credit card transactions had been made |4on Emily’s computer: Emily also found three shirts in her son’s closet where Lisa kept her clothes, one with the price tag still on it. The vendor and price tag corresponded to one of the unauthorized credit card transactions.

Emily and Richard confronted the defendant that Sunday evening and told her she had to get out of the apartment. Lisa denied the accusations and blamed Richard for turning Emily against her. Ultimately, Richard and Emily placed Lisa’s clothes in three white plastic trash bags and in a Mickey Mouse bag of Lisa’s. They placed them by or just outside the front door. Emily handed Lisa her purse, and Lisa went outside the apartment to a nearby stairwell. Richard and Lisa had a final exchange in which Lisa told him that he had better watch out — she knew his car and she just might steal it too.

The couple went to bed very late, discussing the events of the day. They planned to go to the police in the morning to file a complaint against Lisa regarding the credit card. Emily testified that she got up around 6:30 a.m., got Cole and herself dressed, and left at 7:35 to take Cole to daycare in Bossier City. She said that when she left the apartment, Richard was awake, but still lying in bed, nude, calling the base to explain why he would not report for physical training that morning.

|fiOn her way back to the apartment, Emily received a call on her cell phone from Richard. She testified that he was gasping for air and said, “She’s stabbing me[!]Lisa[ — jshe’s stabbing me!” Emily testified that she heard Lisa yelling in the background. The call was abruptly disconnected. Richard called again, relating the same message but was disconnected again. Emily then called 911.

When she arrived minutes later, police and other people had gathered outside near her apartment. Richard lay naked on the ground, covered in blood from multiple stab wounds and lacerations. Emily, who is a registered nurse, attempted CPR until an emergency medical team arrived and took Richard to the hospital where he was pronounced dead.

Emily reported to police the cell phone call from Richard and the credit card incident. Police began searching for the defendant, who eventually returned to the complex and met with police there that evening. The investigation of the crime scene and surrounding area yielded evidence incriminating Lisa, as well as evidence obtained from the subsequent investigation. The defendant was initially charged with first degree murder, but the charge was subsequently changed to second degree murder.

The evidence at trial indicated that Lisa probably spent the night outside at the Haystack apartments. She spoke with her former boyfriend, 16Zion George, until 2:00 a.m. She was seen by other tenants outside the complex later that morning. The evidence further shows that Lisa entered Emily’s apartment through a window shortly after Emily left to take Cole to Waller Childcare in Bossier City, perhaps to recover the camcorder she had purchased with Emily’s credit card and hidden under Cole’s bed. Richard was still in the apartment, perhaps still in bed or on the sofa when the attack occurred.

Lisa initially denied that she was involved in the incident, but later claimed to police that she went to the apartment to retrieve her purse. She said Richard answered the door, clothed only in a towel and wielding a knife. She said she subsequently entered the apartment through a window to get her purse from the sofa. However, the purse was recovered by police outside the apartment with her other bags. Lisa said that Richard attacked her with a knife, and while they wrestled on the floor, he was cut. She denied stabbing him.

By a vote of 11-1, a jury convicted the defendant as charged. The court imposed the mandatory life sentence without benefit of parole, probation, or suspension of sentence. The defendant filed this appeal.

Discussion

|7By her first assignment of error, the defendant contends that the evidence is insufficient to convict her of the crime of second degree murder even when viewed in the light most favorable to the state. Specifically, she contends the state failed to show that the murder occurred during a predicate felony for a second degree murder conviction. She contends that the evidence proves only manslaughter, if any crime.

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, 319, 99 S.Ct. 2781, 2789, 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. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. 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. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. 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 | Rgreat deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, unit denied, 2007-1209 (La.12/14/07), 970 So.2d 529; State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Parker, 42,311 (La.App. 2 Cir. 8/15/07), 963 So.2d 497.

La. R.S. 14:30.1 states in pertinent ' part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated 19kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.

Specific intent is the state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert, denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. See La. R.S. 14:10(1); State v. Draught, 05-1825 (La.1/17/07), 950 So.2d 583, cert, denied,, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied,, 07-1209 (La.12/14/07), 970 So.2d 529. In reviewing whether such a determination is correct, the court should review the evidence in the light most favorable to the prosecution and determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a | inreasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Huizar, supra.

La. R.S. 14:31 provides in relevant part:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed!.]

In the .present case, to sustain the conviction for second degree murder, the evidence must show that the defendant had the specific intent to kill or commit great bodily harm, or that the killing resulted while she was engaged in an aggravated burglary, even though she had no specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1(A)(2). Aggravated burglary is defined under La. R.S. 14:60, in pertinent part, as “the unauthorized entering of any inhabited dwelling ... with the intent to commit a felony or any theft therein, if the offender, (1) is armed with a dangerous weapon; or (2) after entering arms himself with a dangerous weapon; or (3) commits a battery upon any person while in such place, or in entering or leaving such place.”

InAIthough the defendant concedes that she committed an unauthorized entry into the apartment by crawling through a window to get inside, she contends that she had no intent to commit a felony or theft inside the apartment. She contends that she entered to retrieve her own property therein, and the evidence does not show that she took anything not belonging to her. She argues that she was surprised by Richard being in the apartment; she thought he was at work. She told police that it was Richard who attacked her with the knife and in the ensuing struggle, he got stabbed while she defended herself.

We observe that the record shows that the defendant initially denied that she was anywhere near the scene of the crime when the victim was stabbed. The story evolved after repeated questioning by police regarding the conflicts in her prior false statements. She told police that she went to the apartment to retrieve her purse, which she did not obtain; however, police found her purse outside the apartment with her clothing and other personal effects.

The trial testimony also revealed that the defendant purchased a camcorder and gift bag from Target using Emily Moore’s stolen credit card. After Lisa was kicked out of Emily’s apartment, she went to see her former boyfriend, Zion George. According to Zion’s testimony, Lisa told him that |12she had purchased a camcorder for his birthday gift, and she would give it to him the following day. This camcorder was found after the homicide under the bed against the wall in Cole’s bedroom where Lisa kept her things. We think that the evidence shows that it is more likely that Lisa intended to retrieve this illegally purchased item from the apartment.

Nevertheless, for the following reasons, we find that a reasonable jury could conclude that the evidence clearly shows that the defendant had specific intent to kill Richard England. Irrespective of whether she was surprised by finding him in the apartment, the following evidence shows that she attacked Richard England and repeatedly stabbed him with the specific intent to kill.

Foremost, the testimony of Emily Moore regarding Richard’s cell phone call during the attack reflected that it was the defendant who attacked Richard, not the converse. Lisa’s voice was well known to Emily. She testified that she could hear Lisa yelling while Richard called her on his cell phone, gasping for breath and stating, “She’s stabbing me[!] Lisa[ — jshe’s stabbing me!” Emily testified that she was one hundred per cent sure that the defendant was identifying his assailant when he said her name, “Lisa.”

Dr. Stephen Erickson, the forensic pathologist who examined Richard’s body, testified that the knife wounds were caused by a serrated | ^kitchen knife. The wounds on Richard’s' palms and between his fingers were characteristic of defensive wounds on a person who was fighting off a knife attack. Richard was a healthy, fit, fairly large man, 6’2" tall, compared to the defendant, who is 5’5". While Richard suffered several deep stab wounds, including the fatal stab wound that pierced his heart in two places, as well as several cuts and lacerations, the defendant was unscathed — no cuts, bruises or other visible injuries, except for a slight abrasion under her upper lip.

Thus, the severity of the wounds Richard received and the lack of injury to the defendant tends to indicate that the defendant was indeed the aggressor in the events. The autopsy revealed that many of the victim’s wounds appeared to have been inflicted in a manner suggesting that the victim was in a defensive posture during the attack. Further, the victim’s wounds were such that Dr. Erickson felt may have been hesitation wounds, revealing an intent to inflict further injury evidencing an intent to kill.

Additionally, testimony at trial shows that Lisa threatened Richard the night before the murder after she was put out of the apartment. She apparently spent the night at the complex, unable to get Ashlee Buras to pick her up. Buras testified that she somewhat leery of Lisa because Lisa blamed her for losing her job and made a threat. Lisa was seen around the 114complex later at various times during the night ‘and in the morning before the murder, apparently waiting for Emily to leave before entering the apartment.

We conclude, therefore, that the evidence proved beyond a reasonable doubt that Lisa had the specific intent to kill Richard England. The jury apparently rejected the defendant’s self-defense and manslaughter theories.

Moreover, we conclude that the evidence proved beyond a reasonable doubt that Lisa made an unauthorized entry into the apartment with the intent to commit a felony or theft therein, and, while armed with a dangerous weapon, committed a battery on Richard England.

This assignment is therefore without merit.

By her second assignment of error, the defendant contends that it was ineffective assistance of counsel for defense trial counsel to fail to object to the trial court’s restriction of the jury charge relating to proof of manslaughter.

Prior to submitting the case to the jury, the trial court, with the approval of both the prosecutor and defense counsel, elected to omit from the manslaughter definition an instruction regarding that part of La. R.S. 14:31(A)(1) referring to a homicide committed in “sudden passion” or “heat 11sof blood” sufficient to deprive an average person of his self-control and cool reflection. It appears that defense counsel elected, based on the evidence adduced, to argue for a verdict of manslaughter under paragraph (A)(2), that is, a homicide committed without any intent to cause death or great bodily harm when the perpetrator is not engaged in one of the enumerated felonies under second degree murder.

The state argues that the defendant failed to object to the court’s charge to the jury, and is seeking to circumvent this deficiency by claiming ineffective assistance. The state, further argues that .the facts of the case did not apply to a ,manslaughter in “sudden passion” or “heat of blood”; thus there was no need for the defendant’s trial counsel to object to the jury charge. Finally, the state notes that the defendant has not shown that there is a reasonable likelihood that the outcome of the trial would have been different if counsel had objected to the jury charge.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court rather than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App. 2 Cir. 9/26/07), 966 So.2d 139, writ denied, 07,02190 (La.4/4/08), 978 So.2d 325. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App. 2 Cir. 9/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. King, 2006-1903 (La.10/16/07), 969 So.2d 1228; State v. Wry, 591 So.2d 774 (La.App. 2 Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that her attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be | ^evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App. 2 Cir. 4/4/07), 954 So.2d 823, writ denied, 2007-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2 Cir.1991).

Second, the defendant must show that counsel’s deficient performance prejudiced her defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings; rather, she must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App. 2 Cir. 4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App. 2 Cir. 4/3/02), 813 So.2d 1123, unit denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.

In State v. Allen, 2003-2418 (La.6/29/05), 913 So.2d 788, cert. denied, 547 U.S. 1132, 126 S.Ct. 2023, 164 L.Ed.2d 787, the Louisiana Supreme Court stated that “the failure to object to a valid error may be the proper subject of a post conviction claim of ineffective assistance of counsel.” Conversely, the failure to object to invalid errors may not be the proper subject of such a claim. State v. Grant, supra.

The defendant argues that manslaughter was a viable defense in this instance because the situation was a classic domestic dispute that suddenly and unexpectedly became deadly. The defense further argues that an attempt by defense counsel to merely focus on a defense based on the defendant not having intent to kill or cause bodily harm fell below the standard of reasonableness and competency required by prevailing professional standards.

After closing arguments, the trial court held a conference regarding the jury instructions. The trial judge indicated he was inclined to delete a portion of the manslaughter charge, being of the view that the portion of the charge pertaining to “sudden passion or heat of blood” was not applicable. Both the state and defense counsel agreed to delete the charge.

| ij/The portion of the jury charge deleted read as follows:

A. Manslaughter is ...
A homicide which would be murder under Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled or that an average person’s blood would have cooled, at that time offense was committed!/]

The general rule regarding errors in the jury charge is that, unless objected to contemporaneously, an irregularity or error in the charge to the jury may not be asserted on appeal. La. C. Cr. P. art. 841; State v. Belgard, 410 So.2d 720 (La.1982); State v. Wilson, 28,403 (La.App. 2 Cir. 8/21/96), 679 So.2d 963.

During the conference to finalize the jury charges, the defendant did not make any objection to the proposed charges and actually agreed with deleting the portion of the charge. Defense counsel noted that the defense was arguing under the theory of the second paragraph of the charge, and thus it would be permissible for the trial court to delete the first portion of the charge.

Because the trial counsel agreed to the amendment of the jury charge, there was no contemporaneous objection made. While this would generally |¡,npreclude review by this court, the fact that the defendant contends her counsel was ineffective warrants further consideration of the assignment of error. The instant record is adequate to consider this assignment.

The claim that trial counsel should not have limited the jury charge regarding manslaughter implicates the attorney’s trial strategy, but this is not the inquiry for ineffective assistance of counsel. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Defense counsel was working with a situation in which his client admitted to the unlawful entry into the apartment and, according to her story, engaged in a physical struggle with the victim. The defendant denied stabbing the victim, only admitting that during their struggle, he was injured. Further, she provided various stories regarding how she got into the apartment and why she was there. She maintained that she did not stab the victim, but she did see blood appear on various parts of his body.

Defense counsel stated at trial that the defense theory of the case did not involve the deleted portion of the jury charge. As previously noted, this court must give great deference to trial counsel’s judgment, tactical ^decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, supra; State v. Moore, supra.

In State v. Lombard, 486 So.2d 106 (La.1986), the Louisiana Supreme Court explained:

[T]he presence of “sudden passion” or “heat of blood” distinguishes manslaughter from murder. The court has stated on several occasions, however, that “sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather,'they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. Since they are mitigatory factors, a defendant who establishes by a preponderance of the evidence that he acted in a “sudden passion” or “heat of blood” is entitled to a manslaughter verdict. Where such proof has been introduced, a second degree murder verdict is inappropriate. (Citations omitted.)

On the first prong of the Strickland test, the defendant must show that counsel’s performance was deficient. As noted above, the defense in this .case was limited by the defendant’s inculpatory statement as well as the evidence adduced during trial. There was little presented to show that the killing could have been committed in sudden passion or heat of blood. Certainly the time period between the evening before, when Emily and Richard put the defendant out of the apartment, until the next morning when the offense occurred, was sufficient time for her blood to have “cooled.” Based on this record, we cannot conclude that defense counsel erred.

| ppEven if we presumed that defense counsel erred in failing to object to the jury instruction, on the second prong of the test, the defendant must show that counsel’s deficient performance prejudiced her defense. As we have concluded that the evidence presented was sufficient to convict the defendant of the charged offense, she simply cannot show that she was deprived of a fair trial and prove actual prejudice. The state’s evidence clearly established that she committed second degree murder. The circumstances, as established by the evidence, do not support a manslaughter verdict. The jury rejected this theory. We conclude, therefore, that deleting the portion of the manslaughter jury charge did not prejudice this defendant.

Accordingly, this assignment of error is without merit.

By her third assignment of error, the defendant contends that the trial court erred in overruling her objection to the introduction of gruesome autopsy photographs.

The state contends that the trial court did not abuse its discretion in overruling her objection as the photographs illustrated the particular wounds inflicted by the defendant and were not such that they overwhelmed the jurors’ reason. We agree.

1 ¡^Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted. State v. Washington, 30,-866 (La.App. 2 Cir. 8/19/98), 716 So.2d 936, writ denied, 98-2473 (La.1/8/99), 734 So.2d 1229. Additionally, the cumulative nature of photographic evidence does not render it inadmissible if it corroborates the testimony of witnesses on essential matters. State v. Langley, 95-1489 (La.4/14/98), 711 So.2d 651. Photographs are not admissible if they are so gruesome as to overwhelm the jurors’ reason and lead them to convict the defendant without sufficient other evidence. State v. Craig, 95-2499 (La.05/20/97), 699 So.2d 865, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997); State v. Tolbert, 30,821 (La.App. 2 Cir. 8/19/98), 716 So.2d 949, unit denied, 98-2562 (La.1/15/99), 736 So.2d 207. A trial court’s ruling in this regard will be disturbed only if the prejudicial effect of the photographs clearly outweighs the probative value. State v. Ruffins, 32,-870 (La.App. 2 Cir. 12/10/99), 748 So.2d 614; State v. Washington, supra.

During Dr. Erickson’s testimony, defense counsel raised an objection to the introduction of autopsy photographs. The jury was removed and arguments were presented. The trial' court ultimately ruled that the majority of the photographs were admissible. Dr. Erickson testified that he took thej^photographs of the victim’s body during the time he performed the autopsy. The objectionable photographs show the victim’s body and the various wounds, many of which had been sutured prior to the autopsy. Other photographs depict wounds that had sutures removed during the autopsy for examination purposes. Dr. Erickson testified that at least one. of the wounds was a result of medical intervention and had been sutured after the victim died. The trial judge carefully reviewed each of the photographs and determined that they were admissible, finding that they were not “unduly grotesque” and had probative value. The trial judge did exclude at least one photograph as it was determined to be repetitive.

We have reviewed the photographs, and conclude that the trial judge did not err in his determination. They do depict a body with numerous ■ stab and cut wounds, as well as evidence of medical intervention described by Dr. Erickson. They corroborated not only Dr. Erickson’s testimony but Emily Moore’s as well, as it related to the victim’s wounds. They showed the location, nature, and number of wounds sustained by the victim, and their probative value outweighed any prejudicial effect they might have had upon the jury. There is no showing that the photographs’ prejudicial effect was outweighed by their probative value.

This assignment of error is without merit.

| ^Conclusion

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . The trial transcript incorrectly punctuates Richard's cell phone statement as, "She's stabbing me, Lisa, she's stabbing me,” as though Richard is talking to Lisa. Emily’s testimony makes it clear that Richard was identifying his assailant to her.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Lisa JIMES o/b/o Justin Jimes, Plaintiffs-Appellees v. Martin LOPEZ, et al., Defendants-Appellees Terry Henry, Jr., Plaintiff-Appellant v. Crum and Forster Indemnity Co., et al., Defendants-Appellees Sylvain Parisy, et al., Plaintiffs-Appellants v. Crum and Forster Indemnity Co., et al., Defendants-Appellees.
    Nos. 45,922-CA, 45,923-CA, 45,924-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      P. Alan Stegall, for Plaintiffs-Appellants, Sylvain Parisy, et al.
    J. Patrick Hennessy, Shreveport, LA, for Plaintiff-Appellant, Terry Henry, Jr.
    Kirby D. Kelly, by H. Dean Lucius, Jr., for Plaintiffs-Appellees, Lisa and Justin Jimes.
    Mayer, Smith & Roberts, by J. Kris Jackson, for Defendants-Appellees, Liberty Mutual Ins. Co., Donald Highley, and Suhor Industries, Inc.
    Seabaugh & Joffrion, Shreveport, LA by Alan T. Seabaugh, for Defendant-Appel-lee, State Farm Mutual Auto Ins. Co.
    Loban, Carnahan, Batt, Angelle & Nader, New Orleans, LA by Sidney J. Angelle, Brant J. Cacamo, for Defendant-Appellee Martin Lopez.
    Allen & Gooch, Lafayette, LA by William H. Parker, III, for Defendants-Appel-lees, Quality Intermodal Delivery Services and United States Fire Ins. Co. (Crum & Forster Indemnity).
    Wiener, Weiss & Madison, by Frank H. Spruiell, Jr., for Defendants-Appellees, Paul Ware and Progressive Ins. Co.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

| ;iThe question in these three consolidated cases is whether the lead vehicle in a multi-car pile up was negligent. Martin Lopez, the driver of the lead vehicle, a 1999 Freightliner semi-truck and trailer, his employer and insurer, filed motions for summary judgment which were granted by the trial court. Plaintiffs appealed. We affirm.

I

This accident occurred on the afternoon of August 25, 2007, in Shreveport, Louisiana. Adam Parisy was driving a 2000 Honda Civic north on Interstate 49. His passengers were Terry Henry, Nickolas Tate, and Justin Jimes. Parisy exited I-49 on a high rise ramp that curved over I-49 to Highway 3132. Parisy was behind the 1999 Freightliner being driven by Martin Lopez. At the top of the ramp, the turbocharger on the 18-wheeler exploded, engulfing the area in a cloud of white smoke. Lopez testified by deposition that the turbocharger was newly installed in July 2007. According to Lopez, when the turbocharger blew, the truck lost power and Lopez put it pin neutral and coasted down the ramp and then stopped on the side of the road. He was unaware of any collision.

Unable to see through the smoke, Parisy stopped at the top of the ramp. Defendant, Donald Highley, driving a 2002 International Bobtail truck, violently rear-ended the Parisy vehicle; and then, Paul Ware, driving a 2008 Ford F250 pickup truck pulling a trailer, rear-ended Highley. Parisy, Henry and Jimes were seriously injured as a result of the accident. They brought separate suits against Suhor Industries, Inc., Liberty Mutual Insurance Company and Donald Highley; Progressive Insurance Company and Dr. Paul Ware; Crum and Forster Indemnity Company, Quality Intermodal Delivery Service, United States Fire Insurance Company and Martin Lopez.

Lopez, Quality Intermodal Delivery Service, and United States Fire Insurance Company, Quality Intermodal’s insurer, filed motions for summary judgment asserting that there were no genuine issues as to material fact concerning Lopez’s negligence and consequently the claims against Lopez, his employer, and its insurer were not viable. After a hearing, the motions for summary judgment were granted. The trial judge gave his reasons orally:

The Court is going to grant the motion for summary judgment .... to do otherwise requires a triple inference. |fiThe defendants that filed the motion have suggested that the plaintiffs are unable to prove an essential element of then-case which is negligence on the part of (Lopez). To get anywhere near proving negligence on the part of the driver you would have to make three inferences that depend on each other. You would have to, first of all, infer from a scratch (on the hood of Pansy’s vehicle), with no positive testimony (Parisy and Henry had no memory of the accident) and direct testimony (from Lopez) just the other way, that an impact occurred. There’s no caving in of the (Honda), there’s just a scratch. So if you make that inference then you have to further find that — you have to infer that the Sudden Emergency Doctrine does not apply and then you would have to further infer that the statute says that you don’t — that prohibits basically stopping in the middle of the road unless disabled applies and you would have to infer there was no disabling of the vehicle within the meaning of the statute after the turbocharger had blown. I think given all of that and looking at the case as a whole I think it seems clear that there isn’t sufficient evidence — there isn’t evidence that is sufficient to meet the burden of proof that there is negligence on the part of the driver.

It is from this ruling that plaintiffs have appealed. Donald Highley, Suhor Industries, and Liberty Mutual Insurance Co. are defendants-appellants in support of plaintiff-appellants’ position.

II

We review the grant of a motion for summary judgment de novo, using the same considerations as the district court in determining whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.06/03/09), 13 So.3d 1209, writ denied,, 09-1491 (La.10/02/09), 18 So.3d 122. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A “genuine issue” is one on which reasonable minds could come to differing conclusions. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.06/03/09), 13 So.3d 1209, unit denied, 09-1491 (La.10/02/09), 18 So.3d 122, citing Khan v. Richey, 40,805 (La.App.2d Cir.04/19/06), 927 So.2d 1267, writ denied., 06-1425 (La.11/03/06), 940 So.2d 662. A “material fact” is one which potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute. Factual inferences reasonably drawn from the evidence must be construed in favor of the nonmoving party. Yokum v. 615 Bourbon Street, L.L.C., 977 So.2d 859 (La.02/26/08).

Although a motion for summary judgment may be made in any civil action, it is not commonly interposed, or frequently granted, in negligence actions that require a determination of subjective facts, such as, motive, intent, good faith or knowledge. Tillman v. Eldridge, 44,460 (La.App. 2 Cir. 7/15/09), 17 So.3d 69. Under the sudden emergency doctrine, anyone who 17fmds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to adopt in order to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence. Therefore, where no facts are in dispute, summary judgment may be appropriate where a sudden emergency renders an accident unavoidable. Loyd v. Lancer Ins. Co., 43,859 (La.App. 2 Cir. 1/14/09), 999 So.2d 1232.

Ill

In brief, plaintiffs state then* argument as follows: “In addition to Lopez driving the truck which was owned by Quality Intermodal, and which caused the smoke and white-out to the above referenced collision, Lopez also was at fault in the collision for stopping in the middle of the highway after causing the white-out.” Plaintiffs argue that Highley’s truck slammed into their vehicle and drove their vehicle into Lopez’s rig. The collision by Highley was severe and plaintiffs were knocked out and remember only seeing smoke and stopping.

Plaintiffs claim that there are questions of fact regarding whether Lopez was negligent, specifically if Lopez stopped his vehicle on the ramp after the turbocharger blew. As stated by the trial court, plaintiffs had no Indirect or positive testimony to support, this theory. Rather, they offer as proof a scratch on the hood of Parisy’s vehicle that Parisy testified was. not there before the accident. Parisy brought the scratch to the court’s and opposing side’s attention when faced with a motion for summary judgment.

On the other hand, Lopez’s testimony is corroborated by both Highley and Ware. Highley, in his deposition, testified that Lopez’s truck was “continuing on” rather than stopped. Highley saw the smoke coming from Lopez’s truck trailing down the ramp. He stated that the entire lane was eventually filled with smoke because Lopez continued going forward after the turbocharger blew out. Highley stated that after everything was cleared Lopez was at the bottom of the ramp on the side of the road. Paul Ware testified that he witnessed the smoke trailing down from the top of the ramp. The police report of the accident does not indicate that there was a collision between Parisy’s vehicle and Lopez’s truck and Lopez was only listed on the police report because of the smoke, which his truck created.

Compared to the abundance of direct evidence in favor of Lopez’s account that he continued down the ramp to a safe location as opposed to stopping his vehicle on the ramp, there is no evidence that creates a genuine issue as to this material fact. The trial court reasonably concluded that Parisy’s vehicle did not collide with Lopez’s.

| ¡¡Plaintiffs’ other argument is that Lopez and Quality Intermodal were negligent because their truck caused the smoke and white-out.

The uncontradicted testimony and record shows that the turbocharger had been replaced less than two months before the blowout with a new one. There was no advance warning that the new turbocharger was subject to a blowout. The danger was not foreseeable and the care and maintenance of the truck was not lacking. All of the evidence concludes that Lopez and Quality Intermodal exercised ordinary care.

Defendant-appellant Highley, his employer Suhor Industries, and their insurer Liberty Mutual argue that Lopez reacted negligently to the situation after the blowout. This explosion created a perilous circumstance; after a loud “boom” the vehicle lost all power and plumes of smoke were emitted from the vehicle’s hood while Lopez was on top of the ramp. Faced with loss of power and decreased visibility, Lopez had to make an instant decision. His decision, based upon the direct evidence, was to put the vehicle in neutral and coast it down the ramp to a safe location. The Highley group presented an expert who opined that Lopez should have turned off his engine immediately instead of shifting the vehicle into neutral and coasting down the ramp, which is contrary to plaintiffs’ position. In short, they claim that Lopez should have stopped on the ramp. Lopez was faced with an imminent | mperil, and he took a course of action that required quick decision making without a cushion of time to weigh all of the circumstances. Far removed from the time and place of the incident, it is now suggested that Lopez’s course of action was not the best method. In deciding if ordinary care was chosen, the action must be considered in the light of all the surrounding circumstances. As the trial court found, Lopez acted with ordinary care in attempting to remove the danger by getting off the ramp.

Unavoidable and Inevitable Accident and Sudden Emergency doctrines are based upon the exercise of ordinary care. As stated, Lopez exercised ordinary care and was not negligent.

Conclusion

1 Given the above facts and law, we agree with the trial court and find the granting of the motion for summary judgment in favor of Martin Lopez, Quality Intermodal Delivery Service and United States Fire Insurance Company proper. Costs are assessed 50% equally against plaintiffs and 50% to defendants, Suhor Industries, Inc., Liberty Mutual Insurance, and Donald Highley.

AFFIRMED.

      . Initially, Crum and Forster Indemnity Company was incorrectly named as a defendant but this was remedied by substituting in the true defendant, United States Fire Insurance Company.

      . Quality Intermodal Deliver Service was alleged to be vicariously liable for Lopez's actions due to an alleged employer/employee relationship.

      . Jimes is not a party to the present appeal.

      . Their brief states that they are defendants-appellees.


author: CARAWAY, J.

text:
    Beverly A. BLAKE, Jamarcus Blake and Natasha Valley, Plaintiffs-Appellants v. Dr. Warren MALEY, Defendant-Appellee.
    Nos. 46,036-CA, 46,037-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.
    Rehearing Denied Feb. 24, 2011.

      Beverly A. Blake, In proper person.
    James D. “Buddy” Caldwell, Attorney General, Claude W. Bookter, Special Assistant Attorney General, Tallulah, LA, for appellee, Dr. Warren Maley.
    Robert G. Pugh, Jr., Shreveport, LA, for Dr. Kevin Cline.
    Randall L. Champagne, Watson, Blanche, Wilson & Posner, Peter T. Daz-zio, Callie M. Boudreaux, Baton Rouge, LA, for Willis Knighton Medical Center and Donna Hall.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

12These two consolidated medical malpractice actions were dismissed with prejudice on the ground that the claims had prescribed. The claimant appeals both judgments. We affirm.

Facts

On June 2, 2004, Beverly Blake, individually, and on behalf of her two minor children, filed a request for a medical review panel, alleging medical malpractice against Dr. Warren Maley and Willis Knighton Medical Center in the treatment of her deceased husband, Barry Blake, who died on January 31, 2004. Specifically Blake alleged as follows:

The family, generally contends that Dr. Maley and the hospital staff breached the applicable standard of medical care by failing to diagnose and treat a fixed drug reaction after an initial dose of Ancef following a surgical procedure consisting of a left wrist fistula ligation with |sleft antecubital fistula formation and placement of internal jugular Per-macath on June 22, 2003; and the negligent administration of a second dose of Ancef on August 15, 2003 by order of Dr. Maley subsequent to a second admission to Wíllis-Knighton Medical Center; a third dose given on August 21, 2003; a fourth dose given on August 22, 2003 during a left arm DRIL procedure and left thigh saphenous vein harvest; a fifth dose given on August 25, 2003 preceding a penile circumcision and biopsy performed by Dr. Kevin Cline; and a sixth dose given perioperatively during this procedure. The fixed drug reaction caused peripheral vascular ischemia among other medical complications which led to the subsequent amputation of Mr. Blake’s left hand, four fingers of his right hand, his right great toe, a partial penectomy, and a left below-knee amputation, as well as other complications set forth in Mr. Blake’s medical records.

On June 16, 2004, Blake supplemented the request for a medical review panel and named as additional defendants, LSU Health Sciences Center and Dr. Kevin Cline.

On May 15, 2007, the medical review panel unanimously ruled in favor of all defendants. The medical review panel decision, mailed on May 25, 2007, included written reasons which stated as follows:

Having reviewed all the evidence submitted and the allegations that Drs. Ma-ley and Cline failed to make the diagnosis of a fixed drug eruption in a timely fashion, we cannot support that supposition. Although we recognize that fixed drug eruption was suggested as a diagnosis by Dr. Haynie, the dermatologist, we do not feel that diagnosis can be absolutely confirmed in a patient with the commonly seen sequelae of a patient with severe vascular disease, renal failure and diabetes. We also question as to whether the antibiotic Ancef was ^established as the drug or agent which would have led to this process, if it existed.
In view of that we cannot support the suggestion that failure to make that diagnosis during the course of this patient’s care would fall beneath the standard of care. The decision making during his care was reasonable and appropriate.
We find the care provided by the hospitals involved met the standard of care.

On July 6, 2007, Blake wrote to counsel for Dr. Cline informing him that her attorney was no longer handling the case but that a settlement was still possible. No settlement of the matter occurred nor was a lawsuit filed by Blake.

On July 18, 2009, Blake wrote the Louisiana Commissioner of Administration, Division of Administration, requesting a “review of the medical review panel decision.” Blake alleged that she became very ill shortly after the medical panel decision and was “unable and in no condition to handle any of my personal business.” Blake alleged that her attorney had discontinued his service “without any explanation to me.” She claimed that “because of [her] illness, [she] was unaware of what [she] needed to do to continue with this matter.” On August 28, 2009, Blake sent a letter to the Louisiana Patient’s Compensation Fund (“PCF”) informing it of her choice “to re-file a request for a medical review panel” arising out of Drs. Maley |5and Cline’s administration of Ancef to her husband in June through August of 2003.

On October 7, 2009, the PCF notified Blake that it had set the matter up as PCF No.2009-01115. The letter further informed Blake that the PCF had no records on Dr. Warren Maley. A second letter from the PCF informed Blake that it had received her $100 fee and was instituting the medical review panel action. By letter to the PCF on October 12, 2009, Blake added Willis-Knighton and Donna Hall, Barry Blake’s attending nurse, to the claim.

On December 8, 2009, both Dr. Cline and Willis-Knighton filed exceptions of prescription. Hall followed on January 13, 2010, adopting by reference the arguments made by Willis-Knighton. All parties argued the provisions of La. R.S. 9:5628 which read as follows in relevant part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising, out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
lfiB. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

Further, Willis-Knighton cited La. R.S. 40:1299.47(B)(3) which provides for the suspension of prescription during the medical review panel process as follows:

B. (l)(a)(i) No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.
(3) Ninety days after the notification to all parties by certified mail by the attorney chairman of the board of the dissolution of the medical review panel or ninety days after the expiration of any court-ordered extension as authorized by Paragraph (1) of this Subsection, the suspension of the running of prescription with respect to a qualified health care provider shall cease.

Blake opposed the exceptions urging her entitlement to a new medical review panel because none of the physicians who comprised the first panel was a dermatologist. Further, Blake argued that she became ill with chronic depression and anxiety before she could further pursue the claim and after her counsel withdrew from the case. Thus, Blake claimed mental incapacity to timely file the suit.

|7A hearing on the exceptions occurred on May 10, 2010. Blake argued that her attorney did not give her enough notice to file the malpractice claim within the 90-day period. The trial judge granted each defendant’s exception and dismissed all claims with prejudice.

On November 3, 2009, Beverly Blake instituted suit in district court against Dr. Warren Maley arising out of the 2003 administration of Ancef to Barry Blake. On November 29, 2009, Dr. Maley filed an exception of prescription urging the application of La. R.S. 40:1299.47(B)(3) to the suit which had been filed two years and five months from the date that the medical review panel opinion had been sent to Blake. Blake opposed this exception arguing that she was mentally incapable of filing the claim timely. A hearing on the exception occurred on February 1, 2010. Blake argued that the physicians who made up the medical review panel were not qualified. She also contended-that her attorney did not give her adequate notice of the medical review panel decision and that her mental incapacity through July of 2009 prevented her from filing the suit. The trial court granted Dr. Maley’s exception and dismissed the suit with prejudice.

Blake appeals the judgments in two separate appeals which have been consolidated for review. She raises the same issues on appeal that she argued in the exceptions, namely that her mental incapacity prevented her from | «filing suit, the physicians who made up the medical review panel were not qualified and that her attorney did not give her adequate notice to file the suit. Blake also argues that the trial court did not give her adequate time to show cause and present her evidence at the hearings on the exceptions.

Discussion

The prescriptive period for medical malpractice is set forth in La. R.S. 9:5628 as noted above. This statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery, with a single qualification that the discovery rule is expressly made inapplicable after three years from the act, omission or neglect. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502; Holmes v. LSU/E.A. Conway Medical Center, 43,662 (La.App.2d Cir.10/22/08), 997 So.2d 605. Both the one-year and three-year limitation periods of La. R.S. 9:5628 are prescriptive. Borel v. Young, 07-0419 (La.11/27/07), 989 So.2d 42.

The plea of prescription must be specifically pleaded, and may not be supplied by the court. La. C.C.P. art. 927(B); Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261; Campo v. Correa, supra. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Carter v. Haygood, supra; Campo v. Correa, supra. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Id. On the trial of the prescription exception pleaded at or prior to the trial of the ease, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 981.

In this case, Blake concedes that the date of the alleged malpractice occurred on June 22, 2003, when Barry Blake received the drug Ancef. Blake never alleged that the alleged malpractice was unknown to her. Thus, Blake timely instituted her claim with the medical review panel on June 2, 2004. Under La. R.S. 40:1299.47(B), Blake’s cause of action was suspended by the medical review panel proceedings until the mailing of the opinion on May 27, 2007. After that time, Blake had ninety days plus the additional twenty days left on her original year to file suit in district court. Blake filed a duplicate claim with the medical review panel on August 28, 2009, and a suit in district court on November 3, 2009, nearly two years after the prescriptive period for filing suit had tolled and more than six years after Blake’s stated date of the act of malpractice. Thus, her claims have clearly prescribed.

[ ^Regarding Blake’s claim concerning her mental capacity, the general rule of Civil Code Article 3468 provides:

Prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation.

There is no statutory exception applicable in this case, and the three-year period of La. R.S. 9:5628(B) acts as the outside maximum time period which bars medical malpractice actions.

Blake’s claims regarding her attorney’s failure to notify her and the makeup of the medical review panel do not prevent the running of prescription regarding her claims against appellees. Furthermore, the record does not bear out her claim that she was not given a fair hearing on the exceptions. Blake was allowed to state her arguments and present her case.

Conclusion

For the foregoing reasons, the judgments of the trial court in these consolidated cases dismissing all of plaintiffs claims with prejudice against all defendants on the grounds of prescription are affirmed at appellant’s costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS and LOLLEY, JJ.

Rehearing denied.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Joann JENKINS, Appellant.
    No. 45,771-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.
    James M. Miller, Douglas L. Harville, for Appellant.
    Joann Jenkins, Pro Se.
    William R. Coenen, JR., District Attorney, Rayville, LA, Johnny R. Boothe, Penny W. Douciere, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   WILLIAMS, J.

|2The defendant, Joann Jenkins, pled guilty to one count of forgery with an agreed sentence of six years’ imprisonment. Defendant’s appellate counsel has filed a motion to withdraw with a brief asserting that there are no non-frivolous issues to raise on appeal. See State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). On August 5, 2010, this Court issued an order rescinding the previously fixed pro se briefing schedule and notifying the defendant of the applicable deadlines for filing a brief and requesting the appellate record in this matter. Defendant has neither requested the record nor filed a pro se brief. For the following reasons, we grant the motion to withdraw and affirm the defendant’s conviction and sentence.

DÍSCUSSION

The defendant was charged by bill of information with 17 counts of forgery, in violation of LSA-R.S. 14:72. Pursuant to a plea agreement, defendant pled guilty to one count of forgery with an agreed sentence of six | ¡¿years’ imprisonment. In exchange, the state agreed to nolle prosequi the remaining 16 counts. Subsequently, the district court sentenced the defendant to serve six years at hard labor, with the sentence to run concurrently with any other sentence previously imposed. Defendant’s motion to reconsider sentence was denied. This appeal followed.

After the appeal was filed, this court noted on its own motion that the plea colloquy transcript did not unequivocally reflect defendant’s understanding that the six-year sentence agreed upon would be served at hard labor. However, in a brief filed by counsel, the defendant waived the opportunity to assert any potential assignments of error arising from that aspect of the record.

Subsequently, the defendant’s appellate counsel filed a motion to withdraw and an Anders brief, which alleges that he could find no non-frivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, supra. Counsel’s brief outlines the procedural history of this case, notes that defendant’s guilty plea complied with the Boykin requirements and contains a detailed assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place. Jyles, supra. Defense counsell ¿verifies that he has mailed photocopies of the motion to withdraw and his brief to the defendant, in accordance with Anders, Jyles, Mouton, and Benjamin, supra.

We note that the defendant cannot appeal her sentence, which was imposed in conformity with the plea agreement. LSA-C.Cr.P. art. 881.2. In addition, we have reviewed the record for error patent and found none. Accordingly, we find there are no non-frivolous issues to raise on appeal.

CONCLUSION

For the foregoing reasons, appellate counsel’s motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . Defendant's original appellate counsel filed an Anders brief in July 2010. However, said counsel was allowed to withdraw and new counsel was enrolled by this court’s December 2010 order. Defendant's new counsel filed his Anders brief in January 2011.


author: LOLLEY, J.

text:
    Connie HOFLER, Plaintiff-Appellee v. J.P. MORGAN CHASE BANK, N.A. and Liberty Mutual Insurance Company, Defendants-Appellants.
    No. 46,047-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Allen & Gooch by Eric J. Waltner, for Appellants.
    McKeithen, Ryland & Champagne by Louis V. Champagne Dina F. Domangue, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| gDeiendants J.P. Morgan Chase Bank, N.A. (“Chase”) and Liberty Mutual Insurance Company (“Liberty Mutual”) appeal the judgment of the District IE Office of Workers’ Compensation (“OWC”) favoring plaintiff Connie Hofler (“Hofler”). For the following reasons, we affirm the OWC’s decision.

Facts

Hofler was employed by Chase as a payroll processor. Her job duties consisted of pulling 20 to 40 pound boxes from shelves, transporting them to a desk, scanning the contents of the boxes into the computer, and stacking the boxes on pallets. About 80% of her job involved lifting and moving boxes. Hofler suffered an injury to both her neck and elbow while employed with Chase. Her neck injury is the only injury at issue in this case.

Hofler saw Dr. Mark Dollar, her family physician, complaining of neck and elbow pain. She was diagnosed with a cervical strain and received treatment, which was paid for by the defendants. She also saw Dr. Douglas Liles, an orthopedic physician, for the same problems. Several months later, Hofler saw Dr. Karl Bilderback to get a second opinion regarding her neck and elbow problems at the request of the defendants. Dr. Bilderback found that her elbow problem was work-related, while her neck problem was not. Thereafter, the defendants’ claims adjuster denied any further treatment for Hofler’s neck problem.

Dr. Liles originally disagreed with Dr. Bilderback’s findings that Hofler’s neck injury was not work-related; however, he then reversed his opinion to agree. Dr. Liles stated Hofler needed a neurological evaluation, but defendants denied coverage of such.

Hofler next saw Dr. Anil Nanda, a neurosurgeon, without defendants’ approval. Dr. Nanda requested Hofler have a CT scan and a myelogram of her neck in order to evaluate her injury; however, defendants denied coverage of these tests.

Hofler then underwent surgery performed by Dr. Liles on her' elbow. When the surgery failed to alleviate the pain in her neck, Dr. Liles again changed his opinion to find that Hofler’s neck injury was work-related. Hofler filed suit on October 16, 2008, claiming that Chase had not | .^authorized medical treatment or allowed her to have her choice of physician. She also sought penalties, interest, attorney fees and approval for medical treatment to her neck.

Thereafter, Hofler submitted to another evaluation, this time upon request of the defendants, by Dr. Douglas Brown. He found her neck problem to be unrelated to her work. Defendants then requested Ho-fler be evaluated by Dr. Marcos Ramos, a neurologist. Dr. Ramos requested Hofler undergo an MRI so that he could properly evaluate her neck injury. Defendants denied coverage of this test as well.

The case went before the OWC which found that Hofler sustained the neck injury as a result of a specific accident in the course and scope of her employment with Chase. The OWC subsequently found Ho-fler entitled to medical treatment and benefits, her choice of physician, and approval for three medical tests — the myelogram and post-myelogram CT scans ordered by Dr. Nanda and the MRI ordered by Dr. Ramos. The OWC assessed penalties to defendants totaling $6,000 for denying coverage of medical testing as ordered by Drs. Nanda, Ramos, and Liles. The OWC also ordered defendants to pay $10,000 in attorney fees. Defendants filed the instant appeal.

Law and Discussion

Chase and Liberty Mutual assert four assignments of error. First, they assert the OWC erred in finding the plaintiff met her burden of proving a compensable accident. Second, they assert the OWC erred in finding that Hofler met her burden of proving a causal relationship between her injury and her alleged work accident. Third, they claim the OWC erred in assessing penalties and attorney fees against the defendants because this denial was reasonable. Fourth, the defendants argue in the alternative that if the penalties are found to be warranted, the OWC erred in assessing multiple penalties against defendants for denying the same tests for the same reason.

Compensability of the Accident and Causation

The first two assignments of error are related and will, therefore, be addressed together. Defendants claim the OWC erred in finding the plaintiff met her burden of proving both a compensable accident and causation between the accident and her injury. We disagree.

|4An employee is entitled to compensation benefits if she proves by a preponderance of the evidence that she sustained a “personal injury by an accident arising out of and in the course of’ employment. La. R.S. 23:1031; Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275. An “accident” is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). Although the workers’ compensation law is liberally construed in favor of coverage, the claimant’s burden of proving an accident is not relaxed; she must prove by a preponderance of the evidence that an accident occurred and that the resulting disability is related to an on-the-job injury. McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La.07/02/03), 851 So.2d 1135; Sheppard v. Isle of Capri, 40,048 (La.App.2d Cir.08/17/05), 909 So.2d 699.

A claimant’s testimony alone may be sufficient to establish an accident provided that “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992). In determining whether the Bruno elements are satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and coworker testimony, (3) family and friends testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. Sheppard v. Isle of Capri, supra.

Factual findings in workers’ compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dept., supra. Under this rule, the reviewing court does not decide whether the factfin-der was right or wrong, but only whether its findings are reasonable. Id. Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be decided by the workers’ compensation judge. Id. When there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Winford v. Conerly Corp., 2004-1278 (La.03/11/05), 897 So.2d 560; Sheppard v. Isle of Capri, supra.

At the crux of the case sub judice is whether Hofler’s neck injury was caused from a specific accident as defined by the Louisiana workers’ compensation statutes. If her injury was found to have been caused by such an accident, the result would be that Hofler is entitled to compensation benefits. However, if her injury was found to be from either a gradual deterioration over time or from a non-work-related incident, Hofler would not be entitled to compensation benefits.

Hofler testified .that while moving boxes at work one day she felt a “pull or tug” on the right side of her neck that caused her severe pain. She began seeing a doctor within a month of the incident. Her coworker Lynn Moorehead corroborated Ho-fler’s testimony in that she stated Hofler complained to her that her neck was hurt and she needed to see a doctor. Her husband, Kenneth Hofler, also corroborated the fact that his wife complained of an injury to her neck and that she reported to him that she injured herself while lifting boxes at work. The OWC found Hofler to be very persuasive and credible and her testimony corroborated by her husband Kenneth Hofler and her coworker Lynn Moorehead. As noted by the OWC:

The Court finds that the claimant’s testimony was very persuasive to this Court that she injured her neck during an identifiable and precipitous event occurring during her employment at J.P. Morgan Chase, when she “pulled one box from the top shelf and noted a pull” in her neck, and her neck started hurting, as stated in her statement of February 21, 2007 and as stated in this Court today and as reported to Dr. Nanda. Therefore, I find that she was injured in the course and scope of her employment. That finding' is also supported by the testimony of her husband and her coworker, one Lynn Moorehead.

The medical conclusions from the many doctors who evaluated Hofler differed and even changed over time regarding whether or not the injury was work-related. However, despite this inconsistency the factfin-der was reasonable to find that Hofler suffered a compensable injury that was caused by the work-related accident. Therefore, this assignment of error to the contrary is meritless.

Penalties and Attorney Fees

lfiIn the third and fourth assignments of error, defendants assert the OWC erred in assessing penalties and attorney fees against them for two reasons: the denial was reasonable and they. were assessed multiple penalties for denying the same diagnostic tests for the same reason.

Louisiana R.S. 23:1201(F) states that penalties may be assessed for failure to provide payment. Louisiana R.S. 23:1201(F)(2) states, however, that these penalties shall not be assessed if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control. The phrase “reasonably controvert” means that the employer or insurer must have “some valid reason or evidence on which to base his denial of benefits.” Brown v. Texas-LA Cartage, Inc., 1998-1063 (La.12/01/98), 721 So.2d 885; City of Bossier City v. Colvin, 45,278 (La.App.2d Cir.05/19/10), 36 So.3d 1207.

Awards of penalties and attorney fees in compensation cases are essentially penal and are intended to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Trahan v. Coca Cola Bottling Co. United, Inc., 2004-0100 (La.03/02/05), 894 So.2d 1096; City of Bossier City v. Colvin, supra. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant’s entitlement to benefits. J.E. Merit Constructors, Inc. v. Hickman, 2000-0943 (La.01/17/01), 776 So.2d 435; City of Bossier City v. Colvin, supra.

The workers’ compensation judge has great discretion in determining whether to allow or disallow penalties and attorney fees and her decision will not be disturbed absent manifest error. Alexander v. Pellerin Marble & Granite, 1993—1698 (La.01/14/94), 630 So.2d 706; Thompson v. The Animal Hosp., 39,154 (La.App.2d Cir.12/15/04), 889 So.2d 1193. As such, reasonable evaluations of credibility and reasonable inferences of fact 17should not be disturbed upon review; to reverse the WCJ’s findings of fact, the reviewing court must conclude that a reasonable basis for that finding does not exist in the record. Dean v. Southmark Const., 2003-1051 (La.07/06/04), 879 So.2d 112; Thompson v. The Animal Hosp, supra.

In support of the assertion that their denial of coverage of testing was reasonable, defendants rely on the language of the OWC in her oral reasons for judgment:

I find that even though the defendants had a reasonable basis to deny the claim through the medical evidence as given by Dr. Liles and other treating physicians, I do find that their denial of medical testing as recommended by Dr. Nan-da, Dr, Ramos and as reiterated by Dr. Liles, to be arbitrary and capricious conduct; for their failure to approve the testing recommended by Dr. Nanda, the Court is assessing a penalty of two thousand dollars ($2000); for their failure to approve the testing as recommended by their own treating physician in the field of neurosurgery, Dr. Ramos, a penalty of two thousand dollars ($2000) is assessed against them; and for their failure to provide the testing as reiterated by Dr. Liles, an additional] two thousand dollars ($2000) penalty is assessed against them. And the Court is awarding attorney fee in this matter in the amount of ten thousand dollars ($10,-000).

Defendants assert that the OWC made contradictory statements by saying first that the defendants had a reasonable basis for denying the claim, and then stating that this same denial was arbitrary and capricious. This contradiction, defendants argue, should be construed to find that the penalties were assessed in error because the denial was reasonable.

A judgment and reasons for judgment are two separate and distinct documents; it is well-settled law that the trial court’s oral or written reasons form no part of the judgment. La. C.C.P. art. 1918; Burmaster v. Plaquemines Parish Government, 2010-2127 (La.09/22/10), 45 So.3d 1061. Appeals are taken from the judgment, not the written reasons for judgment. La. C.C.P. arts. 2082, 2083; Greater New Orleans Expressway Com’n v. Olivier, 2002-2795 (La.11/18/03), 860 So.2d 22; Taylor v. Dowling Gosslee & Associates, Inc., 44,654 (La.App.2d Cir.10/07/09), 22 So.3d 246, unit denied, 2009-2420 (La.02/05/10), 27 So.3d 299. If there is a conflict between the two, the trial court’s signed judgment prevails over the reasons for judgment. Gulfco Inv. Group, Inc. v. Jones, 577 So.2d 775 (La.App. 2d Cir.1991). This allows a signed final judgment to take precedence over substantive misstatements because a final judgment is usually prepared with care, may be revised before it is signed, and the aggrieved party has recourse to a timely application for a new trial or timely appeal. Hebert v. Hebert, 351 So.2d 1199 (La.1977); Gulfco Inv. Group. Inc. v. Jones, supra. While reasons for judgment are helpful in determining the rationale for a judgment, only the final judgment can be appealed. Admittedly her oral reasons for judgment appear to be contradictory from her final judgment; however, there is evidence in the record to support thé imposition of penalties and attorney fees as stated in the final judgment. Therefore, the final judgment awarding penalties and attorney fees stands.

Additionally, this Court finds the claim was not reasonably controverted and defendants cannot escape penalties on this ground because there was no valid reason or evidence on which they based their denial, of coverage of the diagnostic testing. It is well settled that greater weight should be given to the opinion of a treating physician over the opinion of a physician who examines the patient only once or twice. Kendrick v. Solo Cup, 44,303 (La.App.2d Cir.06/03/09), 15 So.3d 295. Although Dr. Liles wavered as to whether he believed Hofler’s neck injury was work-related, at the time defendants made the decision to deny all subsequent coverage, Dr. Liles’ opinion was that her injury was work-related. Defendants sent Hofler to Dr. Bilderback for a second opinion and once they got an opinion to the contrary they denied all coverage from that point forward, even though they had evidence from Hofler’s treating physician that the injury was work-related and should, therefore, be covered. Furthermore, defendants not only denied testing requested by Hofler’s chosen physicians, Drs. Liles and Nanda, but they also denied coverage of diagnostic testing from a physician of their choice, Dr. Ramos. Defendants denied coverage of the very testing that would aid in determining whether or not Hofler’s injuries were work-related and thereby in need of coverage. The claim was not reasonably controverted.

Defendants also assert that the imposition of multiple penalties was assessed in error. We disagree; R.S. 23:1201(F) provides for multiple penalties for multiple violations of compensation and medical benefits 13claims. Fontenot v. Reddell Vid-rine Water Dist., 2002-0439 (La.01/14/03), 836 So.2d 14. Here, the OWC found the denial of three separate tests to be three separate violations and assessed penalties accordingly. We find no manifest error in this factual determination, therefore, we affirm the penalties and attorney fees-as awarded and decline to decrease them on appeal.

Conclusion

For the foregoing reasons, the judgment in favor of Connie Hofler is affirmed. All costs of this appeal are assessed to J.P. Morgan Chase Bank, N.A. and Liberty Mutual Insurance Company.

AFFIRMED.

      . La. R.S. 23:1201(F) provides in part:
      Failure to provide payment in accordance with this Section or failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim.


author: DANIEL L. DYSART, Judge.

text:
    Yvonne RICHARDS v. The BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS, The International Rivercenter, New Orleans Rivercenter, Norc Riparian Properties, Inc., The New Orleans Riverwalk Associates and Rouse-New Orleans, Inc.
    No. 2010-CA-1171.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 2, 2011.

      Darleen M. Jacobs, Al A. Sarrat, Jacobs Sarrat & Lovelace, New Orleans, LA, for Yvonne Richards, et al.
    Edward F. LeBreton III, E. Stuart Ponder, Fowler Rodriguez Valdes-Fauli, New Orleans, LA, for Board of Commissioners, Port of New Orleans.
    James M. Garner, Peter L. Hilbert, Jr., Darnell Bludworth, Kevin M. McGlone, Mary Beth Akin, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for the International Rivercen-ter, New Orleans Rivercenter, and Norc Riparian Properties, Inc.
    (Court composed of Judge MICHAEL E, KIRBY, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

Lin this appeal, plaintiffs assert that the trial court erred in granting the defendants’ exceptions of collateral estoppel and issue preclusion. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

1 This lawsuit arises out of the M/V BRIGHT FIELD allision with the River-walk Mall along the Mississippi riverfront in New Orleans on December 14, 1996. Plaintiffs sued non-vessel interests, which included the International Rivercenter, New Orleans Rivercenter, NORC Riparian Properties, Corp. (“IRC/NORC”) and the Board of Commissioners of the Port of New Orleans (“Board”). Plaintiff, Yvonne Richards, claimed she was a pedestrian at the time of the accident' and sustained injuries. She filed a class action petition in December 1997. The matter was removed to federal court in January 1998, and a stay of all state court claims was issued. In February 2002, Mrs. Richards executed a receipt and release as to all claims against defendants New Orleans Rivercenter and |2NORC Riparian Properties Corp. On January 23, 2003, the case was remanded to state court. On April 13, 2004, plaintiff filed a Second Supplemental and Amending Petition adding nine plaintiffs to this case who claimed they, too, were pedestrians at the Riverwalk and sustained injuries during the accident.

Defendants filed Peremptory Exceptions óf Collateral Estoppel or Issue Preclusion seeking to dismiss, with prejudice, the claims of putative class representatives, Marva Kent, Richard Davis, and Marcel Porter, as well as all other proposed class members whose damages were fully and fairly litigated to final judgment in the federal limitation of liability proceedings held before Judge Sear and Judge Barbier, through subsequent allotment. Defendants also contended that those claimants who compromised their claims in the limitation proceeding were similarly estopped from pursuing additional remedies in the state court proceeding.

Plaintiffs maintained that they did not waive their rights to proceed against non-vessel defendants after the conclusion of the limitation proceeding. Plaintiffs further asserted that virtually none of their claims for mental anguish and fear and fright were “fairly and fully litigated.” They contended that no plaintiff who settled without going to trial received any compensation for either mental anguish or fear and fright.

The trial court examined whether the federal limitation proceeding resolved all elements of damages attributed to the allision, including non-pecuniary damages for fear and fright. The court focused on Judge Barbier’s order of August 22, 2002, which denied fifty-nine claimants’ motions to opt out of the procedure | sfor trials of damage claims in federal court as originally set forth in Judge Sear’s order of June 24, 2002. These claimants included state court putative class representatives Yvonne Richards, Marva Kent, Richard Davis, and Marcel Porter.

The trial court confirmed that the bench trials of the various claimants’ actions against the vessel interests that were randomly allotted to the various district and magistrate judges of the Eastern District of Louisiana resolved all elements of damages attributable to the allision, including mental anguish and fear and fright.

The trial court dismissed with prejudice the claims of plaintiffs Marva Kent, Marcel Porter, and Richard Davis on the grounds of collateral estoppel. The trial court reasoned,

The federal court record demonstrates that these putative class representatives have fully litigated the issues of the nature and extent of their general and special damages for injuries sustained at the time of the BRIGHT FIELD allision on December 14, 1996. The court finds that the issues tried to the federal court are identical to the same elements of damages sought in the instant matter from the land-based defendants. Additionally, the court finds that the issue of damages in the federal court proceedings was a necessary part of the final judgments rendered in that case.

The court further ruled that the remaining class representatives who settled their claims against the vessel interests were also fully made whole by the recovery they received in the limitation proceeding, es-topping them from pursuing additional recovery against the land-based defendants. Plaintiffs subsequently filed this appeal.

DISCUSSION

| Jn their sole assignment of error, plaintiffs aver that the trial court erred in granting the defendants’ exceptions of collateral estoppel and issue preclusion.

Issue preclusion is a subset of res judicata, such that the granting of an exception of issue preclusion is technically the granting of a peremptory exception of res judicata. The standard of review for a peremptory exception of res judicata “requires an appellate court to determine if a trial court’s decision is correct or incorrect.” Simmons v. Baumer Foods, Inc., 09-1739, p. 2 (La.App. 4 Cir. 10/6/10), 2010 WL 3911288, *2.

Under the federal issue preclusion doctrine, the plaintiffs are barred from relitigating a claim in a subsequent lawsuit against different defendants where three elements are present:

(1) The issue at stake must be identical to the one involved in the prior action;
(2) The issue must have been actually litigated in the prior action; and
(3) The determination of the issue in the prior action must have been a necessary part of the judgment in that action.

The issue in the federal limitation of liability proceedings was the claimants’ entitlement to recover damages arising from the allision of the BRIGHT FIELD with the Riverwalk. The issue in the case at bar is identical: plaintiffs seek damages from the allision of the BRIGHT FIELD with the Riverwalk. Plaintiffs do not dispute that the issue is identical in the two cases; rather, they claim they were not adequately compensated in federal court for their injuries.

Plaintiffs also suggest that their entitlement to damages for mental anguish, fear and fright, and/or negligent infliction of emotional distress in state court is not identical to their entitlement in the federal limitation of liability proceeding. _[¿Plaintiffs’ arguments ignore the fact that Judge Sear specifically stated in his August 28, 1998 Memorandum and Order that claimants would be evaluated on a case-by-case basis to determine their entitlement to damages for negligent infliction of emotional distress, including consideration of whether they were in the “zone of danger.” See In re Clearsky Shipping Corp., 1998 WL 560347 at *2. Likewise, in Louisiana, a plaintiff may recover damages for mental anguish sustained while a traumatic ordeal is in progress by showing “that he was in a hazardous situation, within the zone of danger, and that his fear was reasonable given the circumstances.” Boyd v. Allied Signal, Inc. 07-1409, p. 17 (La.App. 1 Cir. 10/17/08), 997 So.2d 111, 122. Thus, the same legal principles that governed the claimants’ entitlement to mental anguish damages in the federal limitation of liability proceeding govern the plaintiffs’ entitlement to mental anguish damages here. Because the record establishes that the issue was identical, we find that the first prong of the issue preclusion analysis is satisfied.

The second element for application of the federal issue preclusion doctrine is also established. Despite plaintiffs’ assertions to the contrary, the record is clear that plaintiffs’ general and special damages were actually litigated in the federal limitation proceedings. The transcripts of the bench trials of the individual proposed class representatives directly contradict any allegation by plaintiffs that they did not seek recovery of general, non-pecuniary damages in the federal court proceedings or that none were awarded. For example, in Mr. Porter’s bench trial, counsel for plaintiff described her client’s fear and fright:

That ship, there’s no question, was the size of a football field coming his way. This is like something out of The Titanic, when you see a huge blob of steel coming your way and you try to get out. You live with that. He had nightmares for at least two years. Even now, when he is in a crowd, he has problems and he [sic] a relatively young man.

|fiFollowing the argument, Judge Duval made the following findings:

I find as a fact that the plaintiff was working at Lemoine’s Restaurant on December 14, 1996, and was present when the BRIGHT FIELD allided with the Riverwalk. I find as a fact that Lem-oine’s was very near the point of impact and, in fact, the testimony is that the bow of the vessel came into the restaurant, so certainly it was a frightening experience. I’m sure there was pandemonium and chaos. I think that, beyond peradventure, plaintiff and others would attempt to escape from such a situation. Therefore, he was definitely in a zone of danger.
Therefore, I’m going to award the plaintiff compensatory damages, which is comprised of his pain and suffering, both past and future, for the aggravation of the injury, and for the fear and fright which took place at the time — and I’m sure there’s still some residual, although plaintiff did downplay that in his testimony by saying that he just has a fear of crowds a bit now, but he doesn’t dream as much.

At Mr. Davis’s trial, Judge Fallon made the following findings:

The Court finds that as a result of the elision [sic] and the aggravation exacerbation resulting therefrom and the expenses incurred therewith that the plaintiff sustained the following damages: with regard to wages, the Court finds that the evidence indicates he has lost wages of $3,500. Medical expense, $13,534. Fear and fright in connection with the running and the elision [sic] caused by the elision [sic], $5,000. Pain and suffering associated with the exacerbation aggravation, the flareup and the consequences of swelling from the exacerbation and flareup, $40,000.

Although Judge Zainey did not discuss fear and fright or make a specific award of such damages to Ms. Kent, Ms. Kent did receive an in globo general damage award of $20,000. Further, nothing in the record indicates that she was prevented from litigating the issue of her entitlement to non-pecuniary damages. Plaintiffs cite no record evidence or case law to support their argument.

Further, the general, non-pecuniary damages issue was recognized by the parties as important and by the trier of fact as necessary to the judgments in the limitation proceedings. Following the individual trials in those proceedings, each |7of the claimants was awarded general, non-pecuniary damages for negligent infliction of mental distress, mental anguish and fear and fright. Each of those claimants also received legal interest from the date of judicial demand. No factual questions relative to plaintiffs’ entitlement remain to be tried in state court. Thus, the second prong of the issue preclusion analysis has been satisfied.

The third element for application of the issue preclusion doctrine is also established in this case. The sole purpose of the federal limitation of liability proceeding and the system of bench trials was to determine the nature and extent of the claimants’ injuries and the amount of general and special damages each of the individual claimants was entitled to receive. Judge Sear’s June 24, 2002 Minute Entry specifically stated that the trials would be held to determine, inter alia, zone of danger, recoverability of damages, and amount of damages. Thus, determination of the issue of the claimant’s damages was a necessary part of the judgments issued in favor of each of the claimants in the federal limitation of liability trials. Nowhere in their briefs did plaintiffs challenge this factor of the issue preclusion analysis. Because determination of the plaintiffs’ damages was an essential part of the trials and resulting judgments, the third prong of the collateral estoppel analysis has been satisfied.

Nielson v. Spanaway General Medical Clinic, 185 Wash.2d 255, 956 P.2d 312 (1998), involved a factually similar scenario and provides guidance in this matter. The Nielson court applied the issue preclusion factors to a situation in which plaintiffs, as here, sought to relitigate their entitlement to damages in a state court proceeding after having already recovered damages for the same injuries arising out of the same factual circumstances in a federal court proceeding. In that case, plaintiffs’ ill child had been treated at the defendant hospital. The mother was not satisfied with | sthe care given at the first facility, so the child was later taken to an army medical center, where her care and diagnosis were significantly delayed, resulting in permanent brain damage. The child and her parents filed suit in state court against the first hospital, then filed suit in federal district court against the United States as owner and operator of the army hospital. The federal court action went to trial before any proceedings took 'place in the state court matter. The federal court awarded damages to the plaintiffs. The United States appealed, but the parties later settled then* action. The federal court judgment, however, was not vacated.

Thereafter, the state court defendants moved for summary judgment, asserting that the doctrine of issue preclusion barred relitigation of plaintiffs’ damages. The trial court dismissed the action, and the Washington Supreme Court affirmed. The court noted that the elements of damages considered by the federal court were identical to those damages that could have been recovered in state court. Id. at 318. Plaintiffs argued that they were entitled to have a jury determine the amount of their damages, but the court disagreed. The court averred that the determination of damages is a factual issue for a jury under Washington law, but found that “the question in the present case is whether an issue of fact continues to exist after it has been fully litigated and determined in a prior case.” Id. at 319. The court found that no issue of fact remained to be determined, as plaintiffs were afforded an opportunity to fully and fairly litigate the issue of their damages in federal court.

As in Nielson, the issue of fact in this case, damages, has been conclusively determined by the federal court. No fact issues remain for a jury to determine as to plaintiffs’ claims, as their damages were fully and fairly litigated to settlement or final judgment in the limitation of liability proceeding. The doctrine of issue | ¡preclusion therefore bars the plaintiffs from relitigating their damages in state court.

Plaintiffs suggest that the proposed class representatives who settled their claims in the federal proceeding are not barred from pursuing additional damages from the land-based defendants in state court.

Federal courts have found that issue preclusion effect may be given to a settlement whenever “it is clear that the parties intended the stipulation of settlement and judgment entered thereon to adjudicate once and for all the issues raised in that action.” United States v. Real Property Located at 22 Santa Barbara Dr., 264 F.3d 860, 873 (9th Cir.2001) (citing Green v. Ancora-Citronelle Corp., 577 F.2d 1380, 1383 (9th Cir.1978)). Accordingly, the fact that some of the class representatives here settled their claims in the limitation action “does not detract from [each settlement] being considered a conclusive determination of the merits of that action for purposes of collateral estoppel where, as here it is clear that the parties intended the stipulation of settlement and judgment entered to adjudicate once and for all the issues raised in that action.” Green, 577 F.2d at 1383.

After reviewing the settlement agreements resulting from the federal limitation of liability proceedings, the trial court found that the settlements in this case were intended by the parties to adjudicate once and for all the settling claimants’ rights to damages arising from the allision of the BRIGHT FIELD with the River-walk. This conclusion is supported by the orders of Judges Sear and Barbier. We find that all of the proposed class representatives, including those who settled, had an opportunity to present their claims in federal court. Relitigation of those claims in state court against different defendants is therefore barred by the federal issue preclusion doctrine.

^CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Plaintiffs include the putative class representatives, Marva Kent, Richard Davis, and Marcel Porter, as well as all other proposed class members.