author: EZELL, Judge.

text:
    Jerry WILLIAMSON v. LIBERTY MUTUAL INSURANCE CO., et al.
    No. WCA 12-148.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Roy Seale Halcomb, Jr., Broussard, Hal-comb & Vizzier, Alexandria, LA, for Plain-tiffAppellee, Jerry Williamson.
    Mark Alan Watson, Stafford, Stewart, & Potter, Alexandria, LA, for Defendants/Appellants, Liberty Mutual Insurance Co., Dresser, Inc. d/b/a Dresser Valve Division.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

| ¶ This workers’ compensation case presents issues surrounding an award of penalties regarding payments pursuant to a settlement agreement. In addition to the employer and its insurer, the claimant also raises errors on appeal concerning the judgment.

FACTS

The parties entered into a joint stipulation of facts in the trial court which demonstrates the following. On September 27, 2001, Jerry Williamson had an accident at work during the course and scope of his employment as a valve tester with Dresser, Inc., d/b/a Dresser Valve Division. Liberty Mutual Insurance Company had in effect a policy of workers’ compensation insurance that provided full coverage for all benefits claimed by Mr. Williamson. A judgment was rendered on August 5, 2008, in which Mr. Williamson was found to be permanently and totally disabled and entitled to payment of benefits under the Workers’ Compensation Act.

On May 26, 2010, Mr. Williamson entered into a settlement agreement with Dresser and Liberty Mutual. The settlement was approved by the Office of Workers’ Compensation on August 20, 2010. The settlement required Defendants to pay all indemnity benefits and medical expenses, including medically-related travel expenses, through the date that the settlement was approved.

For unknown reasons, computer entries were made resulting in the termination of indemnity benefits effective July 27, 2010, three weeks and three days before the settlement was approved. As a result, Mr. Williamson was owed back-due indemnity benefits of $1,364.57. These benefits were paid by check dated August 25, 2011.

Mr. Williamson also incurred travel expenses totaling $481.73 for July and August 2010 prior to approval of the settlement. These expenses were also not paid until August 25, 2011. The settlement also required the Defendants to pay “seed l2money” in the amount of $8,960.00 plus $48,974.00 to purchase an annuity to produce annual payments of $4,106.51 for life to be placed in a Medicare Set Aside Account (MSA) administered by Mr. Williamson. Mr. Williamson received the $8,960.00 by check dated August 10, 2010. The $48,974.00 to fund the annuitized portion of the MSA was not paid until September 28, 2010.

The Defendants were also required to make a cash payment in the amount of $110,000.00, representing future indemnity benefits. Of this amount, $101,040.00 was paid by check dated August 9, 2010, and $8,960.00 was paid by check dated September 27, 2010.

Several letters were written by Mr. Williamson’s attorney requesting payment of the benefits owed under the settlement agreement. Mr. Williamson then filed a claim for penalty damages. Mr. Williamson requested (1) $8,000.00 pursuant to La.R.S. 23:1201(1) for Defendants’ premature termination of his indemnity benefits; (2) $3,000.00 pursuant to La.R.S. 23:1201(G) for Defendants’ refusal to timely pay the travel expenses owed under the judgment; and (3) $13,904.16 as provided by La.R.S. 23:1201(G) for Defendants’ refusal to pay the $48,974.00 to purchase an annuity and Defendants’ refusal to timely pay the balance of the cash payment for future indemnity benefits.

The case was tried on September 15, 2011. On October 26, 2011, the workers’ compensation judge (WCJ) issued oral reasons for judgment. The WCJ found that there was no valid excuse offered by the Defendants for failure to pay the benefits due under the settlement agreement. Penalties in the following amounts were awarded: (1) $3,000.00 for Defendants’ refusal to timely pay the weekly indemnity benefits owed under the settlement agreement; (2) $3,000.00 for Defendants’ refusal to timely pay the travel expenses owed under the settlement agreement; and (3) $13,904.16 for Defendants’ refusal to timely pay the amount needed to purchase the annuity for ^funding the MSA (24% x $48,974.00) and Defendants’ refusal to timely pay the balance of the cash payment for future indemnity (24% x $8,960.00). Judgment was signed on November 2, 2011.

The Defendants appealed the judgment arguing that the WCJ erred in finding that they had not timely funded the MSA portion of a full and final settlement and in awarding a 24% penalty. Mr. Williamson answered the appeal arguing that Defendants terminated his payment of indemnity benefits as opposed to simply timely paying him benefits which entitles him to a penalty in the amount of $8,000.00 instead of the $3,000.00 awarded. He also requests attorney fees for additional work performed on the appeal.

PENALTIES FOR FAILURE TO TIMELY FUND ANNUITY PURCHASE

Defendants claim that the WCJ erred in assessing penalties and attorney fees regarding the purchase of the MSA annuity. Defendants argue that the settlement agreement did not provide a specific date upon which they were required to purchase the annuity. Defendants point out that the settlement agreement provided that the first payment to be generated by the annuity was not due until one year after the date of settlement. They argue that if the annuity was purchased at such a time so as to reasonably allow the obligation owed to the claimant to be timely satisfied, then no payment due Mr. Williamson was untimely made.

Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 787 So.2d 41. While the benefits conferred by the Workers’ Compensation Act are to be liberally construed, penal statutes are to be strictly construed. Id.

I/The pertinent language of the settlement agreement is found in paragraph (4)(B) of the petition to compromise the workers’ compensation claim, which states:

FIFTY-THREE THOUSAND, ONE HUNDRED AND ONE DOLLARS AND NO/lOO ($53,101.00), which represents initial “seed” money in the amount of EIGHT THOUSAND, NINE HUNDRED AND SIXTY DOLLARS AND 00/100 ($8,960.00) for a MSA to be administered by the employee plus the cost to purchase an annuity to produce annual payments of FOUR THOUSAND, ONE HUNDRED AND SIX DOLLARS AND 51/100 ($4,106.51), for life only, to be deposited in the MSA account administered by the employee;

Louisiana Revised Statutes 2S:1201(G) provides for penalties and attorney fees as follows:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

A workers’ compensation settlement agreement is a final and non-appeal-able judgment such that the employer’s failure to pay the judgment amount within thirty days following approval and entry into judgment warrants the imposition of penalties and attorney fees pursuant to La.R.S. 28:1201(G). Sedgwick Claims Mgmt. Serv. Inc. v. Cormier, 02-216 (La.App. 3 Cir. 3/26/03), 841 So.2d 1032, writ denied, 03-1185 (La.6/20/03), 847 So.2d 1234.

In McFarlane v. Schneider National Bulk Carriers, Inc., 07-1386 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, the fourth circuit held that La.R.S. 23:1201(G) applied to a settlement which required the employer to provide for funding of a previously established MSA account. The appellate court held that the MSA account should | shave been funded within thirty days of approval of the settlement and penalties were appropriate for that portion of the MSA account that was not funded within thirty days.

The first circuit was faced with a similar question in Harrelson v. Arcadia, 10-1647 (La.App. 1 Cir. 6/10/11), 68 So.3d 663, writ denied, 11-1531 (La.10/7/11), 71 So.3d 316. However, in Harrelson, the first circuit found that the settlement agreement required that Centers for Medicare & Medicaid Services (CMS) approve the amount of funding prior to payment. The first circuit held that the right to enforce the conditional obligation to fund the MSA account contained in the settlement agreement did not arise until the fulfillment of the suspensive condition when CMS approved the MSA funding. The first circuit held that penalties for nonpayment within thirty days were not owed because nonpayment was the result of conditions over which the employer had no control citing La.R.S. 23:1201(G).

In the present case, there was no requirement to obtain CMS’s approval of the settlement agreement. Quite the opposite, Paragraph (4)(B) states that the “[e]m-ployee understands that the receipt of this workers’ compensation settlement without CMS pre-approval may result in a loss of Medicare benefits for the work-related injury.”

Citing La.Civ.Code art. 1767, the Defendants argue that the present settlement agreement was subject to a suspensive condition; the purchase of the annuity contract. We do not find that this settlement agreement was subject to a suspensive condition as argued by the Defendants. The agreement to purchase an annuity contract was the agreement itself and not a suspensive condition to the agreement.

We agree with the WCJ that the $48,974.00 to purchase the annuity was not paid within thirty days after the settlement was approved as required by La.R.S. 23:1201(G). Therefore, the WCJ was correct in awarding penalty damages on this amount.

J^PENALTY ON INDEMNITY PAYMENTS

Mr. Williamson answered the appeal claiming the WCJ correctly held that he was entitled to recover penalty damages because of Defendants’ premature termination of his indemnity benefits. However, he claims the WCJ erred in the amount of penalty damages he awarded for Defendants’ failure to pay indemnity benefits as outlined in the settlement agreement. Mr. Williamson claims that the amount of benefits owed should have been based on a termination of benefits governed by La.R.S. 23:1201(1), as opposed to a failure to pay governed by La.R.S. 23:1201(G). Mr. Williamson argues that he is entitled to an $8,000.00 penalty and not the $3,000.00 penalty that the WCJ awarded.

Under La.R.S. 23:1201(1) an employer can be penalized up to $8,000.00 if it arbitrarily and capriciously discontinues benefits. Brown v. Shop Rite, Inc., 11-727 (La.App. 3 Cir. 11/2/11), 75 So.3d 1002, writ denied, 11-2647 (La.2/10/12), 80 So.3d 480. On the other hand, La.R.S. 23:1201(G) provides a penalty for failure to pay pursuant to the terms of a final, non-appealable judgment within thirty days after it becomes due.

At the time of the settlement, Mr. Williamson was continuing to be paid permanent and total disability benefits in the amount of $398.00 per week. The settlement agreement merely acknowledged that Mr. Williamson would continue receiving payment of his weekly benefits pending approval of the settlement. The joint stipulation of facts states, “[f]or reasons unknown to defendants, computer entries were made resulting in the termination of indemnity benefits effective July 27, 2010, which was three (3) weeks and three (3) days before the settlement was approved on August 20, 2010.” Benefits were terminated before the settlement was approved. As stated in Lopez v. Town of Zwolle, 11-287, p. 6 (La.App. 3 Cir. 10/5/11), 74 So.3d 843, 848, writ denied, 11-2452 (La.1/13/12), 77 So.3d 965, “Section (G) of [La.R.S. 23:1201] refers to the timely payment of lump sum benefits, not to the continued payment of presently owed benefits.”

We agree with Mr. Williamson that this was a termination of benefits as opposed to a failure to pay pursuant to a settlement agreement. Mr. Williamson was owed $1,364.57 in back-due indemnity benefits, which were not paid until a year later on August 25, 2011. Therefore, we find that Mr. Williamson is entitled to the maximum penalty benefit under La.R.S. 23:1201(1) in the amount of $8,000.00 as we find that such discontinuance was arbitrary, capricious, and without probable cause.

ATTORNEY FEES

In his answer to the appeal, Mr. Williamson has also requested additional attorney fees for work on appeal. “An increase in attorneys fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase.” McKelvey v. City of DeQuincy, 07-604, pp. 11-12 (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 690. Considering our affirmation of the judgment of the WCJ, as well as our increase in the award of penalties, we find that an additional award of $4,000.00 is appropriate to compensate Mr. Williamson for work performed on this appeal.

For the reasons set forth in this opinion, the judgment of the Office of Workers’ Compensation is amended to increase penalties from $3,000.00 to $8,000.00 for Defendants’ improper termination of Mr. Williamson’s indemnity benefits. We also award an additional $4,000.00 in attorney fees for Mr. Williamson’s counsel’s work on appeal. In all other respects the judgment is affirmed. Costs of this appeal are assessed to Dresser, Inc., d/b/a Dresser Valve Division and Liberty Mutual Insurance Company.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE in the Interest of B.J.G.B., et al.
    No. 12-172.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Stephen A. Berniard, Jr., Raggio, Cap-pel, Chozen & Berniard, Lake Charles, LA, for Appellee, State of Louisiana, Office of Community Services.
    Nicholas Pizzolatto, Jr., Louisiana Department of Children & Family Services, Lake Charles, LA, for Appellee, Louisiana Department of Children & Family Services.
    Ronald Augustin Rossitto, District Attorney, 14th Judicial District Court, Lake Charles, LA, for Appellee, State of Louisiana.
    James Wade Smith, Lake Charles, LA, for Appellant, J.J.B. (Father).
    Douglas K. Hall, Lake Charles, LA, for Appellee, J.M.B. (Mother).
    Mark Semien, Lake Charles, LA, for Appellees, B.J.B. (child), D.W.B. (child), and S.C.B. (child).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   THIBODEAUX, Chief Judge.

hln this termination of parental rights case, J.J.B., Jr. argues that the trial court erred by refusing to grant a continuance of the termination hearing. J.J.B., Jr.’s criminal trial was scheduled for the same week as the termination hearing. Nevertheless, the trial court received assurances from the division of the court involved in the criminal matter that it would be highly unlikely for J.J.B., Jr.’s criminal trial to occur the same week as his termination hearing. For the following reasons, we find no error in the trial court’s refusal to grant the continuance.

I.

ISSUE

We shall consider whether J.J.B., Jr.’s due process rights were violated where the trial court denied J.J.B., Jr.’g motion to continue the termination of J.J.B., Jr.’s parental rights hearing, where J.J.B., Jr.’s criminal trial was scheduled to occur the same week as his termination hearing, and where the trial court received assurances from the criminal division that J.J.B., Jr.’s criminal trial would not occur the same week as the termination hearing.

II.

FACTS

J.J.B., Jr. is the father of three children, B.J.G.B., D.W.B., and S.C.B., who were originally taken into the State’s custody in February of 2010 because of alleged sexual abuse. J.J.B., Jr. and his wife were each given a case plan. Except for undergoing sexual offender assessment, J.J.B., Jr. substantially complied with his case plan up until his incarceration in February of 2011. J.J.B., Jr. refused to undergo the sexual offender assessment on advice of the attorney who represented him in the criminal matter.

bAll of the children suffer from psychological/psychiatric problems, including ADHD and autism. J.J.B., Jr. and his wife supplied the names of persons who could potentially care for the children, but none of those persons proved to be acceptable to the State for various reasons. Thus, after J.J.B., Jr. and his wife’s incarceration, the State filed a petition for adoption certification and termination of parental rights.

In September 2011, the court held a termination of parental rights hearing during which J.J.B., Jr. requested a continuance. J.J.B., Jr. argued that the criminal trial on sexual abuse charges was scheduled the same week as the termination hearing, and, therefore, J.J.B., Jr.’s due process rights would be violated. The trial judge then checked with the criminal division of the court which gave assurances to the judge that the criminal matter would not be tried that week. This was because J.J.B., Jr.’s matter was number three on the criminal docket, and numbers one and two would have to be tried first. Thus, after receiving these assurances, the trial judge denied J.J.B., Jr.’s request for continuance.

After the trial on the merits, the trial court terminated J.J.B., Jr.’s parental rights, and J.J.B., Jr. appealed. In his appeal J.J.B., Jr. does not argue that the trial court committed a manifest error by holding that the State proved its case by clear and convincing evidence. Instead, J.J.B., Jr. argues that the trial court erred by denying him a continuance and, thereby, deprived him of his due process rights. We now consider the matter.

III.

STANDARD OF REVIEW

In the case of parental rights termination, an appellate court reviews the trial court’s denial of a continuance for abuse of discretion. S.J.G. v. A.A.G., 07-625 (La.App. 1 Cir. 9/19/07), 970 So.2d 1022.

J¿IV.

LAW AND DISCUSSION

The State must not take a person’s life, liberty, or property without due process of law. U.S. Const. amends. V & XIV. The due process clause protects a person’s freedom to engage in activities that involve fundamental rights. See Allain v. Martco P’ship, 02-1796 (La.5/23/03), 851 So.2d 974.

The people of Louisiana recognize the family as the most fundamental unit of human society; that preserving families is essential to a free society; that the relationship between parent and child is preeminent in establishing and maintaining the well-being of the child; ... that the role of the state in the family is limited and should only be asserted when there is a serious threat to the family, the parents, or the child; and that extraordinary procedures established by law are meant to be used only when required by necessity and then with due respect for the rights of the parents, the children, and the institution of the family.

La.Ch.Code art. 101. Thus, because J.J.B., Jr.’s parental rights were terminated in this case, the due process inquiry is appropriate. The question this court faces is how much process is due to J.J.B., Jr. and the answer depends on the circumstances of the deprivation. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The court must consider the following factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. at 903 (citing Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)).

Here, J.J.B., Jr.’s interest in remaining the father of his three children is paramount, indeed. Nevertheless, the risk of an erroneous deprivation in this case is 14minimal. J.J.B., Jr. had notice and opportunity to be heard. The record reveals that during the termination hearing he was not questioned regarding criminal matters, with the exception of public information, such as the charges against him. Furthermore, as the trial court observed, J.J.B., Jr.’s criminal trial did not occur at the same time as the termination hearing. Therefore, J.J.B., Jr. should not have had difficulties being present at both trials.

Finally, while the State’s fiscal and administrative burdens would pale in comparison with J.J.B., Jr.’s interest, they are not insignificant. When a hearing day is rescheduled, witnesses must be contacted anew, attorneys must prepare again, and so on.

Therefore, because the risk of erroneous deprivation was so low in this case, this court concludes that J.J.B., Jr. received all the process that was due to him in this matter. The trial court committed no error by denying J.J.B., Jr.’s motion to continue.

V.

CONCLUSION

Based on the above considerations, the trial court’s judgment terminating J.J.B., Jr.’s parental rights to B.J.G.B., D.W.B., and S.C.B. is affirmed.

AFFIRMED.

      . Because J.J.B., Jr. did not brief the issue of whether the trial court committed a manifest error by holding that the State proved by clear and convincing evidence that his parental rights should be terminated, we do not consider this question. See Uniform Rules-Courts of Appeal, Rule 2-12.4.


text:
    STATE in the Interest of B.J.G.B., et al.
    No. 12-171.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.
    Stephen A. Berniard, Jr., Raggio, Cap-pel, Chozen & Berniard, Lake Charles, LA, for Appellee, State of Louisiana, Office of Community Services.
    ' Nicholas Pizzolatto, Jr., Louisiana Department of Children & Family Services, Lake Charles, LA, for Appellee, Louisiana Department of Children & Family Services.
    Ronald Augustin Rossitto, District Attorney, 14th Judicial District Court, Lake Charles, LA, for Appellee, State of Louisiana.
    James Wade Smith, Lake Charles, LA, for Appellant, J.J.B. (Father).
    Douglas K. Hall, Lake Charles, LA, for Appellee, J.M.B. (Mother).
    Mark Semien, Lake Charles, LA, for Appellees, B.J.B. (child), D.W.B. (child), and S.C.B. (child).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   THIBODEAUX, Chief Judge.

|TFor the reasons discussed in the consolidated case of State in the Interest of B.J.G.B., et al., 12-172 (La.App. 3 Cir. 6/6/12), 92 So.3d 1223, the trial court’s judgment terminating J.J.B., Jr.’s parental rights to B.J.G.B., D.W.B., and S.C.B. is affirmed.

AFFIRMED.


author: AMY, Judge.

text:
    Glen VITRANO, et ux. v. Nellie FRANKS, et al.
    No. 12-183.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Brian M. Caubarreaux, Brian Caubar-reaux & Associates, Marksville, LA, for Plaintiffs/Appellees, Glen Vitrano, Patricia Vitrano.
    Dana G. Hall, Matthew D. Fontenot, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendants/Appellants, Safeway Insurance Company of Louisiana, Nellie Franks.
    L. Bianca Chretien, John E. Ortego & Associates, Lafayette, LA, for Defendant/Appellee, State Farm Fire & Casualty Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

|,The plaintiffs alleged that they suffered injuries when the defendant backed her vehicle into theirs after executing a turn. The defendant driver denied that she put her vehicle into reverse or that there was contact between the two vehicles. Following a bench trial, the trial court assigned seventy-five percent of the fault to the defendant and twenty-five percent of the fault to the plaintiffs. The defendant driver and her insurer appeal. For the following reasons, we affirm as amended.

Factual and Procedural Background

Glen and Patricia Vitrano allege that they were following the vehicle of Nellie Franks on February 19, 2010 in Hessmer, Louisiana. They assert that Ms. Franks turned onto Bedo Street, where her daughter lived. However, after doing so, the plaintiffs contend that Ms. Franks slowed, then stopped, her vehicle, and then subsequently backed her vehicle into theirs. Mr. Vitrano, the driver of the Vi-trano vehicle, testified that, after Ms. Franks backed her vehicle into their car, he reached his arm through his window and struck Ms. Franks’ car in order to get her attention. He claimed that she then struck their vehicle again.

Mr. and Mrs. Vitrano filed this suit, seeking damages associated with the injuries they allege resulted from the accident. They named Ms. Franks as a defendant, as well as her insurer, Safeway Insurance Company, and their own insurer, State Farm Fire & Casualty Company.

The matter proceeded to a bench trial, where Ms. Franks denied placing her car into reverse and further denied contact between the two vehicles. In reasons for ruling, the trial court observed the two distinct versions of events and ultimately assessed fault to both drivers. The resulting judgment apportioned seventy-five percent of the fault to Ms. Franks and twenty-five percent of the fault to Mr. Vitrano. As for damages, the trial court awarded Mrs. Vitrano $6,354.76 in | ^special damages and $20,000.00 in general damages. It awarded Mr. Vitrano $3,530.40 in special damages and $12,000.00 in general damages. It thereafter reduced those awards in light of the twenty-five percent apportionment of fault to Mr. Vitrano.

Ms. Franks and her insurer appeal, assigning the following as error:

The trial court erred in finding that Nellie Franks was 75% at fault and therefore awarded excessive damages to the plaintiffs.

Discussion

Fault

Ms. Franks and her insurer first assert that the trial court erred in finding Ms. Franks at fault, at all. They primarily assert that the evidence supported Ms. Franks’ version of events, which they contend indicated that she did not place her vehicle into reverse and that there was no contact between the cars. They point both to Ms. Franks’ testimony in this regard and to that of the investigating police officer, who testified that Ms. Franks explained to him at the scene that “she had no reason to back up she was going to her daughter’s house.”

In reviewing the trial court’s finding of fault on the part of both drivers, we are mindful of the duty-risk analysis which requires proof that: 1) the actor had a duty to conform his or her conduct to a specific standard of care; 2) the actor did not conform his or her conduct to the applicable standard of care; 3) the actor’s substandard conduct was a cause-in-fact of the alleged injuries; 4) the actor’s substandard conduct was a legal cause of the alleged injuries; and that 5) actual damages were sustained. Brewer v. J.B. Hunt Trans., Inc., 09-1408 (La.3/16/10), 35 So.3d 230. See also La.Civ.Code art. 2315 and La.Civ.Code art. 2316.

^Undoubtedly, Mr. Vitrano, as the following motorist in this case, owed the statutory duty set forth by La.R.S. 32:81(A), which provides that: “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” In fact, and as pointed out by the defendants, a presumption of negligence arises when a following motorist is involved in a rear-end collision. Brewer, 35 So.3d 230. However, the following driver may rebut that presumption by establishing that the unpredictable operation of the preceding vehicle created a situation which the following motorist could not reasonably have anticipated. Cheairs v. State ex rel. DOTD, 03-0680 (La.12/3/03), 861 So.2d 536.

In this case, the trial court observed that the parties offered starkly differing accounts of the incident. It ultimately concluded that a collision had, in fact occurred, rejecting, in part, Ms. Franks’ assertion that there had been no collision. The trial court determined that it was “undisputed that the left front fender of the Vitrano vehicle was damaged.”

As for the occurrence of the accident, the trial court explained that it was “convinced that the subject accident, more probably than not, occurred in the following manner”:

|4Franks was traveling on East School Street in a very slow and indecisive manner. Vitrano was coming down East School Street behind Franks at a speed much greater than that being traveled by the Franks’ vehicle. Franks, according to her own testimony, turned left and slowed up. Vitrano was turning left behind Franks with the intent of entering his drive way, being the first house on the right. Vitrano was in a hurry. Franks was in anything but a hurry and turned and slowed her vehicle. Vitrano did not expect Franks to slow up after turning. The accident then occurred.

In light of this finding, the trial court determined that it “must find both parties at fault” and that it was:

firmly convinced that Nellie Franks was driving very slow and in a “stop and go manner” and this created a hazardous situation, and Vitrano did not pay close enough attention to her mode of travel. Franks’ mode of travel did create a driving hazard to herself and to following vehicles. At the same time, and accepting the testimony of Franks, Vitrano, more probably than not, was driving at a faster speed than necessary under the circumstances.

After review of the record, we conclude that the trial court’s ultimate conclusion that both drivers were at fault in the occurrence of his accident is neither manifestly erroneous nor clearly wrong. Instead, the record supports a view that there was an impact between the preceding vehicle, that of Ms. Franks, and the following vehicle, that driven by Mr. Vitra-no. The trial court permissibly concluded that contact between the vehicles was established by damage on the Vitrano vehicle, thereby rejecting Ms. Franks’ assertion that there had been no such contact. Additionally, the trial court found Mr. and Mrs. Vitrano credible insofar as they explained that they witnessed Ms. Franks drive in a stop and go, erratic fashion which created a hazard. In the end, the trial court was not manifestly erroneous in finding that Ms. Franks’ operation of the vehicle was negligent as well as a cause-in-fact, and a legal cause of this accident and the resulting injuries.

Accordingly, we do not disturb the trial court’s finding of fault on the part of Ms. Franks.

| ⅞Allocation of Fault

In an alternative argument, Ms. Franks and her insurer question the trial court’s apportionment of seventy-five percent of the fault to Ms. Franks. They point out that, given Mr. Vitrano’s observation of Ms. Franks driving in a stop and go manner, he was in a better position to have avoided the accident. Accordingly, the defendants seek a reduction in the percentage of fault assigned to Ms. Franks and a corresponding reduction in the damages assessed to her.

Louisiana Civil Code Article 2323(A) provides for apportionment of fault in its requirement that:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined .... If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

A trial court’s finding of percentages of fault under Article 2323 is owed deference, as it is a factual determination. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607. In the event that an appellate court determines that the apportionment of fault under review is, in fact, clearly wrong, it must adjust the allocation, but only to the extent of lowering or raising it to the highest or lowest point respectively reasonably within the trial court’s discretion. Id.; Brewer, 35 So.3d 230.

Mr. and Mrs. Vitrano each acknowledged that they were aware of Ms. Franks’ erratic and uncertain driving as they followed her onto the road where the accident occurred. In fact, Mrs. Vitrano acknowledged that she told her husband to be careful, because she did not know what Ms. Franks was doing. Similarly, Mr. Vi-trano testified that Ms. Franks was driving slowly and that he told Mrs. Vitrano Uthat Ms. Franks “must be lost.” Despite this appreciation of the preceding car’s indecisive operation, Mr. Vitrano failed to remain at such a distance so as to avoid this accident. For this reason, we conclude that the trial court was clearly wrong in its assessment of greater fault to Ms. Franks.

In determining the highest or lowest percentage of fault that the trial court could have permissibly apportioned under the facts of this case, we consider various factors which may influence the degree of fault assigned, including: “(1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought.” Brewer, 35 So.3d at 244 (citing, Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985)).

Given these factors, it is again clear that each driver must be apportioned with a degree of the fault in causing the accident. With regard to Mr. Vitrano, it is obvious that he was aware of the danger posed by Ms. Franks’ driving. Yet, he proceeded to travel closely behind her and, as found by the trial court, did so at a greater rate of speed. Accordingly, it is appropriate that he bear a percentage of the fault equal, at least, to that of Ms. Franks. In light of the standard applicable to reapportionment of the fault on appeal, we raise the percentage of the fault attributable to Mr. Vitrano to fifty-percent, the lowest percentage which was reasonably within the trial court’s discretion.

Finding clear error in the trial court’s apportionment of fault, we amend and recast the judgment below to reflect that each driver is apportioned fifty percent of the fault in causing the subject accident. We similarly recast the judgment to 17reflect that the defendants are responsible for a corresponding percentage of the damages awarded and for a corresponding percentage of court costs.

DECREE

For the foregoing reasons, we affirm the trial court insofar as it found both Nellie Franks and Glen Vitrano at fault in the subject accident. Further, we leave the amount of damages and interest awarded undisturbed because the overall quantum of those damages was not appealed. However, we amend and recast the remainder of the judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that defendant, Nellie Franks, is fifty percent (50%) at fault in causing the accident sued upon and plaintiff, Glen Vitrano, is fifty percent (50%) at fault in causing the accident sued upon.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the amounts awarded herein to Glen and Patricia Vitrano are to be reduced pursuant to the percentages of fault found herein.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiffs and the defendant are cast with fifty percent of the court costs.

Furthermore, fifty percent of the costs of this appellate proceeding is assigned to the appellants, Safeway Insurance Company and Nellie Franks, and the remaining fifty percent is assigned to the appellees, Glen Vitrano and Patricia Vitrano.

AFFIRMED AS AMENDED.

      . Article 2315(A) provides: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

      . Article 2316 provides: "Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

      . Mr. Vitrano has not appealed the trial court’s determination that his own negligence as the following motorist was a cause of the subject accident.

      . The trial court further remarked that each of the witnesses who testified did so “in a very credible manner.” It noted that: “In her testimony Franks also admitted that her medications affect her memory, however, she appeared to recall the details of this accident vividly. Franks could not recall details of a prior accident with much specificity and appeared at times confused.” The trial court remarked that this problem with Ms. Franks’ recall appeared to be related to post-accident health issues. Namely, the record indicates that Ms. Franks suffered a stroke in the time period between the accident and the trial. Her testimony was offered by way of deposition.


author: DECUIR, Judge.

text:
    LaSALLE PARISH SCHOOL BOARD, et al. v. LOUISIANA MACHINERY RENTALS, LLC.
    No. 12-259.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Robert R. Rainer, Drew M. Talbot, Rainer, Anding & McLindon, Baton Rouge, LA, for Plaintiffs/Appellees, La-Salle Parish School Board, Town of Olla, Town of Jena.
    Jesse R. Adams, III, Andre B. Burvant, Kathryn S. Friel, Matthew A. Mantle, Jones, Walker, Waechter, Poitevent, Car-rére & Denégre, L.L.P., New Orleans, LA, for Defendant/Appellant, Louisiana Machinery Rentals, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and OSWALD A. DECUIR, and MARC T. AMY, Judges.
   DECUIR, Judge.

|TIn this tax collection case, Louisiana Machinery Rentals, LLC (LMR), appeals a partial summary judgment enforcing the assessment of the taxing authorities. The taxing authorities, through their designated collector, answered the appeal seeking sanctions against LMR for filing a frivolous appeal.

FACTS AND PROCEDURAL HISTORY

LMR is the franchise dealer for Caterpillar. As such, LMR sold, leased and repaired CAT equipment in LaSalle Parish. Through intergovernmental agreements, the LaSalle Parish School Board, the Town of Jena, and the Town of Olla (Plaintiffs) designated the Concordia Parish School Board (Collector) as their sales and use tax collector.

The Collector commissioned an audit of LMR for the Plaintiffs for the period December 1, 2000 through June 30, 2007. The audit revealed deficiencies in LMR’s collection of sales and use taxes. The Collector sent LMR a notice of intent to assess. LMR did not respond to the notice. The Collector issued a notice of assessment on December 24, 2009. LMR declined to respond to the notice, electing to instead send additional audit documentation. The Collector accepted this informal proffer and issued a notice of assessment-extension on February 22, 2010. LMR did not formally respond, instead sending more documentation to the auditors. Based on this additional information, the Collector substantially reduced its assessment and issued a notice of assessment-extension on April 26, 2010. LMR again failed to respond. On June 25, 2010, the Collector initiated these proceedings.

LMR filed a pleading entitled “Exceptions and Incorporated Memorandum, Affirmative Defenses, and Answer to Rule for Payment of Sales Tax” and the case was continued. The Collector filed a supplemental and amending petition. LMR |2urged several dilatory, declinatory and peremptory exceptions, along with numerous affirmative defenses. The Collector filed peremptory exceptions of lack of subject matter jurisdiction and peremption and filed a motion for partial summary judgment.

By agreement of the parties, a hearing was held only on the motion for partial summary judgment. The district court found that the April 26, 2010, assessment was final and granted partial summary judgment in favor of the Collector. LMR appealed and the Collector answered seeking sanctions for frivolous appeal.

DISCUSSION

LMR assigns three errors by the trial court. LMR first alleges that the trial court erred in not finding that the notice of assessment-extension did not comply with the notice requirements of the assessment and distraint provisions of La.R.S. 47:337.51. LMR next alleges that the trial court erred in failing to consider its exception of prescription. Finally, LMR alleges that the trial court erred in granting the motion for partial summary judgment because the affidavit was not based on personal knowledge and there are genuine issues of material fact in dispute. We will consider all three assignments together because they are factually and legally intertwined.

The foundation for our analysis of this case lies in the three remedies available to the tax collector to enforce its assessment. La.R.S. 47:337.45(A) provides that the tax collector may utilize the assessment and distraint procedure outlined in La.R.S. 47:337.48 through La.R.S. 47:337.60, may proceed by summary court procedure under La.R.S. 47:337.61, and may proceed by ordinary suit for enforcement of obligations. “The collector may choose which of these procedures he will pursue in each case, and the counter-remedies and delays to |swhich the taxpayer will be entitled will be only those which are not inconsistent with the proceeding initiated by the collector....” LaJR.S. 47:337.45(B). “[T]he fact that the collector has initiated proceedings under the assessment and dis-traint procedure will not preclude him from thereafter proceeding by summary or ordinary court proceedings for the enforcement of the same tax obligation.” Id.

Building on this foundation, we will address LMR’s contention that the trial court erred in failing to find that the notice of assessment-extension did not comply with the assessment and distraint provisions of La.R.S. 47:337.51(A). LMR argues that this determination will clear the way for it to assert its other defenses.

The fifth circuit has recently addressed this argument in Normand v. Randazzo, 11-308, pp. 5-7 (La.App. 5 Cir. 12/28/11), 85 So.3d 707, 709-11, writ denied, 12-285 (La.4/9/12), 85 So.3d 697, as follows:

The Sheriff contends he is not required to comply with La.R.S. 47:337.51 as a condition precedent to the enforcement and collection of sales taxes by a summary proceeding pursuant to La. R.S. 47:337.45 and 47:337.61.
In opposition to the appeal, GCC asserts that the Sheriffs failure to file the affidavit required by La.R.S. 47:1574 caused the burden of proof to shift from the defendant to the plaintiff. Hence, the case is in a different procedural posture from most tax-collection cases.
La.R.S. 47:337.51(A) provides that the tax collector must notify the taxpayer of his remedies. The statute specifically states that the notice from the tax collector “shall inform the taxpayer of the assessment and that he has sixty calendar days from the date of the notice to (a) pay the amount of the assessment; (b) request a hearing with the collector; or (c) pay under protest in accordance with R.S. 47:337.63.”
GCC asserts that because the Sheriff did not provide that notice, the trial court correctly found that the assessment, which is the basis for the rule for taxes, never became final. GCC contends the Sheriff failed to meet the burden of proof at trial.
GCC does not argue that the notice requirement of La.R.S. 47:337.51(A) is a condition required before the tax collector can seek summary relief. GCC asserts, however, that in this case “the collector began with the assessment method and used the alleged ‘formal ^assessment’ as the basis for the summary proceeding; therefore, the tax collector could not simply disregard the notice requirement and file a summary rule for collection.”
“[L]aws regulating the collection of taxes are sui generis and comprise a system to which general provisions of the law have little, if any, relevance.” Mallard Bay Drilling, Inc. v. Kennedy, 2004-1089, p. 22 (La.6/29/05), 914 So.2d 533, 549.
Here, the district court erroneously linked the notice provisions of La.R.S. 47:337.51(A) with the alternative summary proceeding tax enforcement remedy of La.R.S. 47:337.61. La.R.S. 47:337.51(A) is applicable only to the assessment and distraint tax enforcement remedy. The district court cited no authority for its conclusion that a taxpayer must be given notice pursuant to La.R.S. 47:337.51(A) before the tax collector seeks or obtains relief by summary proceeding under La.R.S. 47:337.61.
Rather, La.R.S. 47:337.45(B) expressly grants the tax collector the right and discretion to enforce and collect sales and use taxes by summary proceeding, notwithstanding the requirements applicable to the assessment and distraint remedy, even when the collector has initiated assessment and distraint procedures.
The trial court’s interpretation of the availability of relief under La.R.S. 47:337.61 as dependent upon compliance with the notice requirements of La.R.S. 47:337.51(A) is inconsistent with the statutory classification of the summary proceeding as an “alternative” remedy in “addition to any other procedure” for the enforcement and collection of sales and use taxes.
In Collector of Revenue v. Olvey, 238 La. 980, 117 So.2d 563 (1959), our supreme court considered and rejected the argument that the availability of a tax collector’s summary proceedings remedy is conditioned upon compliance with the procedures for making a formal assessment. The statutes considered in Olvey were substantially similar to those under consideration in this case. The Olvey court found,
The procedure outlined in R.S. 47:1562-1565 for distraint and sale does not in anywise limit or curtail the right and option given to the Collector by R.S. 47:1561 to collect the taxes claimed due by ordinary or summary process, as provided by law, nor is he required to formally assess the tax when he seeks its collection by suit or rule.
117 So.2d at 567.
Similarly, in Collector of Revenue v. Frost, 240 La. 1067, 127 So.2d 151 (La.1961), our supreme court found that the statute ^providing for a summary proceeding to enforce and collect taxes, La. R.S. 47:1474, did not require a prior assessment.
If a prior assessment is unnecessary to a tax collector employing summary proceedings, then compliance with the notice provisions applicable to a formal assessment cannot be a condition precedent.

In this case, the Collector’s supplemental and amending petition specifically asserts that the Collector is pursuing summary judgment under the provisions of both La.R.S. 47:337.51 and La.R.S. 47:337.61. Accordingly, LMR’s contention that the Collector’s motion for partial summary judgment should not have been granted because notice was inadequate must fail because the Collector did not need to use the assessment and distraint provisions in order to pursue summary judgment. The trial court did not err.

We now turn to LMR’s contention that the trial court erred in failing to consider its exception of prescription. It is here that the unique nature of tax laws and the availability of multiple remedies interact to bar consideration of LMR’s exception.

In Jefferson Davis Parish School Board v. Louisiana Machinery Rentals, LLC, 11-510, 11-512, pp. 4-5 (La.App. 3 Cir. 10/5/11), 74 So.3d 1272, 1275-76, writ denied, 11-2437 (La.1/13/12), 77 So.3d 972, this court said:

We find the language of La.R.S. 47:337.51(B) to be clear. A dealer, here both LMR and LMC, has three avenues it could take once it receives an assessment: file an appeal to the assessment, pay the assessment under protest, or simply pay the assessment. Each avenue requires the dealer to take action once it receives an assessment. If no action is taken by the dealer, the assessment becomes final. This interpretation is consistent with this court’s finding in Lafayette Parish School Board v. Simmons, 09-926, p. 1 (La.App. 3 Cir. 3/17/10), 33 So.3d 973, 974, wherein it stated, “the School Board’s Sales and Use Tax Collection Division issued a Notice of Assessment in accordance with La.R.S. 47:337.51, which required action on the part of the defendants within sixty days. A failure to act within the sixty day period results in a final enforceable assessment.”
|fiIn the case before us, neither LMR nor LMC took any action on the administrative level once either received its notice of assessment. Thus, as the trial court correctly found, the assessment was final, and both were precluded from raising defenses, whether by exception or on the merits, in a summary rule to collect sales tax. Accordingly, we find no error by the trial court in its judgment.

In this case, the Collector utilized the assessment and distraint procedure and, therefore, LMR’s failure to respond bars it from raising defenses in the trial court. The Collector also utilized the summary proceedings available under the provisions of La.R.S. 47:337.61 rendering LMR’s argument in the prior assignment moot. Moreover, the fifth circuit explained:

That defense was raised not in GCC’s answer or exception, but in its post-trial memorandum. That violated the requirement of La.R.S. 47:337.61(2), which states:
All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed.

Normand v. Randazzo, 85 So.3d at 711. Therefore, LMR cannot raise the notice issue in the La.R.S. 47:337.61 summary proceeding because it failed to raise the issue in the trial court. Accordingly, the trial court did not err in failing to consider the exception of prescription.

Finally, we address LMR’s contention that the Collectors’ affidavit was insufficient to support summary judgment because it was not based on personal knowledge. This argument must also fail. La.R.S. 47:337.61(4) does not require that the affiant have personal knowledge. W. Baton Rouge Parish Revenue Dept. v. La. Mach. Rentals, LLC, 11-0711 (La.App. 1 Cir. 3/9/12), 91 So.3d 1032. The trial court did not err.

We turn now to the Collector’s request for sanctions for frivolous appeal. The basis for this request becomes more clear when we consider the background in 17this case. The audits in this case, also revealed deficiencies in numerous other parishes, prompting the Collector to issue assessments in multiple jurisdictions. In most eases LMR failed to timely respond to the assessments. Therefore, the various parishes filed summary proceedings against LMR for the collection of taxes, penalties, interest, and related costs. This case is one of several “companion cases” with substantially identical facts and issues of law currently in various stages of litigation. See Jefferson Davis Parish School Board v. La. Mach. Rentals, LLC, 74 So.3d 1272; W. Baton Rouge Parish Revenue Dept. v. La. Mach. Rentals, LLC, 91 So.3d at 1041; Ascension Parish Sales & Use Tax Auth. v. La. Mach. Rentals, Inc., 11-1784 (La.App. 1 Cir. 3/30/12), 92 So.3d 404. While the issues raised by LMR appear repetitive in light of these other cases, the notice issue raised herein had not been previously addressed in this circuit. Accordingly, we decline to sanction LMR in this case.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Louisiana Machinery Rentals, LLC.

AFFIRMED.


text:
    LaSALLE PARISH SCHOOL BOARD, et al. v. LOUISIANA MACHINERY COMPANY, LLC.
    No. 12-276.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Robert R. Rainer, Drew M. Talbot, Rainer, Anding & McLindon, Baton Rouge, LA, for Plaintiffs/Appellees, La-Salle Parish School Board, Town of Olla, Town of Jena.
    Jesse R. Adams, III, Andre B. Burvant, Kathryn S. Friel, Matthew A. Mantle, Jones, Walker, Waechter, Poitevent, Car-rére & Denegre, L.L.P., New Orleans, LA, for Defendant/Appellant, Louisiana Machinery Company, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and OSWALD A. DECUIR, and MARC T. AMY, Judges.
   DECUIR, Judge.

Lin this tax collection case, Louisiana Machinery Company, LLC (LMC), appeals a partial summary judgment enforcing the assessment of the taxing authorities. The taxing authorities, through their designated collector, answered the appeal seeking sanctions against LMC for filing a frivolous appeal.

FACTS AND PROCEDURAL HISTORY

LMC is the franchise dealer for Caterpillar. As such, LMC sold, leased and repaired CAT equipment in LaSalle Parish. Through intergovernmental agreements, the LaSalle Parish School Board, the Town of Jena, and the Town of Olla (Plaintiffs) designated the Concordia Parish School Board (Collector) as the their sales and use tax collector.

The Collector commissioned an audit of LMC for the Plaintiffs for the period December 1, 2000 through June 30, 2007. The audit revealed deficiencies in LMC’s collection of sales and use taxes. The Collector sent LMC a notice of intent to assess. LMC did not respond to the notice. The Collector issued a notice of assessment on December 24, 2009. LMC declined to respond to the notice, electing to instead send additional audit documentation. The Collector accepted this informal proffer and issued a notice of assessment-extension on February 22, 2010. LMC did not formally respond, instead sending more documentation to the auditors. Based on this additional information, the Collector substantially reduced its assessment and issued a notice of assessment-extension on April 26, 2010. LMC again failed to respond. On June 25, 2010, the Collector initiated these proceedings.

LMC filed a pleading entitled “Exceptions and Incorporated Memorandum, Affirmative Defenses, and Answer to Rule for Payment of Sales Tax” and the case was continued. The Collector filed a supplemental and amending petition. LMC 12urged several dilatory, declinatory and peremptory exceptions, along with numerous affirmative defenses. The Collector filed peremptory exceptions of lack of subject matter jurisdiction and peremption and filed a motion for partial summary judgment.

By agreement of the parties, a hearing was held only on the motion for partial summary judgment. The district court found that the April 26, 2010, assessment was final and granted partial summary judgment in favor of the Collector. LMC appealed and the Collector answered seeking sanctions for frivolous appeal.

DISCUSSION

LMC assigns three errors by the trial court. LMC first alleges that the trial court erred in not finding that the notice of assessment-extension did not comply with the notice requirements of the assessment and distraint provisions of La.R.S. 47:337.51. LMC next alleges that the trial court erred in failing to consider its exception of prescription. Finally, LMC alleges that the trial court erred in granting the motion for partial summary judgment because the affidavit was not based on personal knowledge and there are genuine issues of material fact in dispute. We will consider all three assignments together because they are factually and legally intertwined.

The foundation for our analysis of this case lies in the three remedies available to the tax collector to enforce its assessment. La.R.S. 47:337.45(A) provides that the tax collector may utilize the assessment and distraint procedure outlined in La.R.S. 47:337.48 through La.R.S. 47:337.60, may proceed by summary court procedure under La.R.S. 47:337.61, and may proceed by ordinary suit for enforcement of obligations. “The collector may choose which of these procedures he will pursue in each case, and the counter-remedies and delays to |swhich the taxpayer will be entitled will be only those which are not inconsistent with the proceeding initiated by the collector....” La.R.S. 47:337.45(B). “[T]he fact that the collector has initiated proceedings under the assessment and dis-traint procedure will not preclude him from thereafter proceeding by summary or ordinary court proceedings for the enforcement of the same tax obligation.” Id.

Building on this foundation, we will address LMC’s contention that the trial court erred in failing to find that the notice of assessment-extension did not comply with the assessment and distraint provisions of La.R.S. 47:337.51(A). LMC argues that this determination will clear the way for it to assert its other defenses.

The fifth circuit has recently addressed this argument in Normand v. Randazzo, 11-308, pp. 5-7 (La.App. 5 Cir. 12/28/11), 85 So.3d 707, 709-11, writ denied, 12-285 (La.4/9/12), 85 So.3d 697, as follows:

The Sheriff contends he is not required to comply with La.R.S. 47:337.51 as a condition precedent to the enforcement and collection of sales taxes by a summary proceeding pursuant to La. R.S. 47:337.45 and 47:337.61.
In opposition to the appeal, GCC asserts that the Sheriffs failure to file the affidavit required by La. R.S. 47:1574 caused the burden of proof to shift from the defendant to the plaintiff. Hence, the case is in a different procedural posture from most tax-collection cases.
La.R.S. 47:337.51(A) provides that the tax collector must notify the taxpayer of his remedies. The statute specifically states that the notice from the tax collector “shall inform the taxpayer of the assessment and that he has sixty calendar days from the date of the notice to (a) pay the amount of the assessment; (b) request a hearing with the collector; or (c) pay under protest in accordance with R.S. 47:387.63.”
GCC asserts that because the Sheriff did not provide that notice, the trial court correctly found that the assessment, which is the basis for the rule for taxes, never became final. GCC contends the Sheriff failed to meet the burden of proof at trial.
GCC does not argue that the notice requirement of La.R.S. 47:337.51(A) is a condition required before the tax collector can seek summary relief. GCC asserts, however, that in this case “the collector began with the assessment method and used the alleged ‘formal ^assessment’ as the basis for the summary proceeding; therefore, the tax collector could not simply disregard the notice requirement and file a summary rule for collection.”
“[L]aws regulating the collection of taxes are sui generis and comprise a system to which general provisions of the law have little, if any, relevance.” Mallard Bay Drilling, Inc, v. Kennedy, 2004-1089, p. 22 (La.6/29/05), 914 So.2d 533, 549.
Here, the district court erroneously linked the notice provisions of La. R.S. 47:337.51(A) with the alternative summary proceeding tax enforcement remedy of La. R.S. 47:337.61. La.R.S. 47:337.51(A) is applicable only to the assessment and distraint tax enforcement remedy. The district court cited no authority for its conclusion that a taxpayer must be given notice pursuant to La.R.S. 47:337.51(A) before the tax collector seeks or obtains relief by summary proceeding under La.R.S. 47:337.61.
Rather, La.R.S. 47:337.45(B) expressly grants the tax collector the right and discretion to enforce and collect sales and use taxes by summary proceeding, notwithstanding the requirements applicable to the assessment and distraint remedy, even when the collector has initiated assessment and distraint procedures.
The trial court’s interpretation of the availability of relief under La.R.S. 47:337.61 as dependent upon compliance with the notice requirements of La.R.S. 47:337.51(A) is inconsistent with the statutory classification of the summary proceeding as an “alternative” remedy in “addition to any other procedure” for the enforcement and collection of sales and use taxes.
In Collector of Revenue v. Olvey, 238 La. 980, 117 So.2d 563 (1959), our supreme court considered and rejected the argument that the availability of a tax collector’s summary proceedings remedy is conditioned upon compliance with the procedures for making a formal assessment. The statutes considered in Olvey were substantially similar to those under consideration in this case. The Olvey court found,
The procedure outlined in R.S. 47:1562-1565 for distraint and sale does not in anywise limit or curtail the right and option given to the Collector by R.S. 47:1561 to collect the taxes claimed due by ordinary or summary process, as provided by law, nor is he required to formally assess the tax when he seeks its collection by suit or rule.
117 So.2d at 567.
Similarly, in Collector of Revenue v. Frost, 240 La. 1067, 127 So.2d 151 (La.1961), our supreme court found that the statute | ¿providing for a summary proceeding to enforce and collect taxes, La. R.S. 47:1474, did not require a prior assessment.
If a prior assessment is unnecessary to a tax collector employing summary proceedings, then compliance with the notice provisions applicable to a formal assessment cannot be a condition precedent.

In this case, the Collector’s supplemental and amending petition specifically asserts that the Collector is pursuing summary judgment under the provisions of both La.R.S. 47:337.51 and La.R.S. 47:337.61. Accordingly, LMC’s contention that the Collector’s motion for partial summary judgment should not have been granted because notice was inadequate must fail because the Collector did not need to use the assessment and distraint provisions in order to pursue summary judgment. The trial court did not err.

We now turn to LMC’s contention that the trial court erred in failing to consider its exception of prescription. It is here that the unique nature of tax laws and the availability of multiple remedies interact to bar consideration of LMC’s exception.

In Jefferson Davis Parish School Board v. Louisiana Machinery Rentals, LLC, 11-510, 11-512, pp. 4-5 (La.App. 3 Cir. 10/5/11), 74 So.3d 1272, 1275-76, writ denied, 11-2437 (La.1/13/12), 77 So.3d 972, this court said:

We find the language of La.R.S. 47:337.51(B) to be clear. A dealer, here both LMC and LMC, has three avenues it could take once it receives an assessment: file an appeal to the assessment, pay the assessment under protest, or simply pay the assessment. Each avenue requires the dealer to take action once it receives an assessment. If no action is taken by the dealer, the assessment becomes final. This interpretation is consistent with this court’s finding in Lafayette Parish School Board v. Simmons, 09-926, p. 1 (La.App. 3 Cir. 3/17/10), 33 So.3d 973, 974, wherein it stated, “the School Board’s Sales and Use Tax Collection Division issued a Notice of Assessment in accordance with La.R.S. 47:337.51, which required action on the part of the defendants within sixty days. A failure to act within the sixty day period results in a final enforceable assessment.”
|fiIn the case before us, neither LMR nor LMC took any action on the administrative level once either received its notice of assessment. Thus, as the trial court correctly found, the assessment was final, and both were precluded from raising defenses, whether by exception or on the merits, in a summary rule to collect sales tax. Accordingly, we find no error by the trial court in its judgment.

In this case, the Collector utilized the assessment and distraint procedure and, therefore, LMC’s failure to respond bars it from raising defenses in the trial court. The Collector also utilized the summary proceedings available under the provisions of La.R.S. 47:337.61 rendering LMC’s argument in the prior assignment moot. Moreover, the fifth circuit explained:

That defense was raised not in GCC’s answer or exception, but in its post-trial memorandum. That violated the requirement of La.R.S. 47:337.61(2), which states:
All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed.

Normand v. Randazzo, 85 So.3d 707. Therefore, LMC cannot raise the notice issue in the La.R.S. 47:337.61 summary proceeding because it failed to raise the issue in the trial court. Accordingly,-the trial court did not err in failing to consider the exception of prescription.

Finally, we address LMC’s contention that the Collectors’ affidavit was insufficient to support summary judgment because it was not based on personal knowledge. This argument must also fail. La.R.S. 47:337.61(4) does not require that the affiant have personal knowledge. W. Baton Rouge Parish Revenue Dept. v. LA. Mach. Rentals, LLC, 11-0711 (La.App. 1 Cir; 3/9/12), 91 So.3d 1032. The trial court did not err.

We turn now to the Collector’s request for sanctions for frivolous appeal. The basis for this request becomes more clear when we consider the background in |7this case. The audits in this case also revealed deficiencies in numerous other parishes, prompting the Collector to issue assessments in multiple jurisdictions. In most cases LMC failed to timely respond to the assessments. Therefore, the various parishes filed summary proceedings against LMR for the collection of taxes, penalties, interest, and related costs. This case is one of several “companion cases” with substantially identical facts and issues of law currently in various stages of litigation. See Jefferson Davis Parish School Board v. La. Mach. Rentals, LLC, 74 So.3d 1272; W. Baton Rouge Parish Revenue Dept. v. La. Mach. Rentals, LLC, 91 So.3d 1032; Ascension Parish Sales & Use Tax Auth. v. La. Mach. Rentals, Inc., 11-1784 (La.App. 1 Cir. 3/30/12), 92 So.3d 404. While the issues raised by LMC appear repetitive in light of these other cases, the notice issue raised herein had not been previously addressed in this circuit. Accordingly, we decline to sanction LMC in this case.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Louisiana Machinery Company, LLC.

AFFIRMED.


author: PAINTER, Judge. THIBODEAUX, Chief Judge,

text:
    STATE of Louisiana v. Taurean JACKSON.
    No. 11-923.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Beth S. Fontenot, Attorney at Law, Louisiana Appellate, Lake Charles, LA, for Defendant-Appellant, Taurean Jackson.
    James C. “Jam” Downs, District Attorney, John T. Giordano, Assistant District Attorney, Alexandria, LA, for the State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

1TDefendant, Taurean Jackson, appeals the thirty-year sentence he received after being found to be a fourth felony offender upon his conviction of theft of goods between $300.00 and $500.00, a violation of La.R.S. 14:67.10. For the reasons that follow, we amend the sentence to delete that portion which prohibits the benefit of parole and affirm the sentence in all other respects.

FACTS AND PROCEDURAL HISTORY

On April 3, 2010, Defendant stole $508.00 worth of merchandise from Dillard’s Department Store in Alexandria, Louisiana. Defendant was charged by bill of information with theft of goods between $300.00 and $500.00, a violation of La.R.S. 14:67.10. On April 5, 2011, a jury found Defendant guilty as charged. Defendant was sentenced to two years at hard labor; however, the State filed a habitual offender bill charging Defendant as a fourth offender. The bill charged that Defendant had been previously been convicted of the following offenses: unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4, for which he was sentenced to pay a fine; possession of CDS, Schedule II, a violation of La.R.S. 40:967(C), for which he was ordered to pay a fine; possession with intent to distribute CDS, Schedule I, in violation of La.R.S. 40:966(A)(1)(G), for which he was sentenced to five years; and battery of correctional facility employee (while in custody of DOC), a violation of La.R.S. 14:34.5, for which he was sentenced to six months.

Following a habitual offender hearing, the trial court found Defendant to be a fourth felony offender. On September 12, 2011, the trial court vacated the two-year sentence and imposed a thirty-year at hard labor sentence to be served without the benefit of probation, parole, or suspension of sentence. No motion to reconsider sentence was filed.

Defendant contends that his thirty-year sentence is excessive and that the trial court illegally imposed the sentence without the benefit of parole. We do not find that 12the sentence is excessive, but we do amend the sentence to delete that portion which prohibits the benefit of parole.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is an error patent in that the trial court ordered the sentence to be served without the benefit of parole. Defendant asserts that neither the underlying statute, La. R.S. 14:67.10, nor La.R.S. 15:529.1(A)(2)(c)(i) prohibited parole; thus, the trial court erred in ordering the sentence to be served without the benefit of parole, citing State v. Bordelon, 09-1245 (La.App. 3 Cir. 5/5/10), 37 So.3d 480, writ denied, 10-1745 (La.2/4/11), 56 So.3d 990. The State concedes that Defendant is correct. Therefore, we hereby amend the sentence to delete that portion which prohibits the benefit of parole. The trial court is ordered to note the amendment in the court minutes.

Excessiveness of Sentence

Defendant asserts that his sentence is excessive. He argues that his current offense was not a crime of violence, the merchandise was recovered by the store, and no one was hurt during the incident. He further asserts that “the current amended sentencing scheme for Theft of Good, the value of the merchandise taken by Mr. Jackson is only $9.00 above the misdemeanor grade of the offense.” Defendant points out that the trial court gave “scant reasons” to support the sentence imposed.

The State responds that the trial court adequately considered the factors set forth in La.Code Crim.P. art. 894.1, including but not limited to the number of arrests, misdemeanor and felony convictions, probation and parole violations and other criminal history.

Since Defendant did not object to his sentence or file a motion to reconsider sentence, he is relegated to a bare claim of excessiveness.

IsThis court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks one’s sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

At the time of the commission of the offense, the penalty for a conviction of theft of goods valued between $300.00 and $500.00 was two years with or without hard labor. La.R.S. 14:67.10. Based upon the sentencing transcript before this court, it appears that the trial court sentenced Defendant under the penalty provisions ^provided for in La.R.S. 15:529.1(A)(2)(e)(i), which provide a sentence of no less than twenty years with a maximum of life imprisonment.

In imposing the habitual offender sentence, the trial court stated in pertinent part that:

Based upon the ... number of felony convictions; based upon the ... fact that he has picked up these ... convictions at a young age; and a review of his history, prior criminal history, including a misdemeanor conviction.

The record does not indicate that a pre-sentencing investigation report was ordered.

The legislative purpose for sentencing under the habitual offender provision was set forth by the court in State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272. The Everett court stated that “[t]he purpose of the Habitual Offender Law is to deter and punish recidivism.” Id. at 1276. Additionally, in State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the court explained, in pertinent part:

Since the Habitual Offender Law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. [State v.] Dorthey, supra [623 So.2d 1276] at 1281 [(La.1993)] (Marcus, J., concurring); State v. Young, 94-1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525.
A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant’s instant or pri- or offenses as non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. LSA-R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a “crime of violence” under LSA-R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences.

Id. at 675-76.

Sentences imposed for similar crimes

In State v. Oliver, 03-416 (La.App. 5 Cir. 9/30/03), 857 So.2d 1227, writ denied, 04-2139 (La.5/20/05), 902 So.2d 1042, the defendant was convicted of theft between $100.00 and $500.00. The defendant was sentenced to two years at hard labor. The State filed a habitual offender bill, and the defendant was found to be a fourth felony offender. She was sentenced to twenty years at hard labor. On appeal, the defendant challenged the sentence as excessive. The court upheld the sentence, stating, in pertinent part:

The record in the present case appears to indicate the defendant was engaged in a scheme, wherein she stole large house ware items from local retailers. The defendant’s conduct in the instant case suggests that, but for the vigilant surveillance of the store personnel, defendant would have stolen more houseware items from this retailer. Besides the economic impact on the merchant, these instances of shoplifting also exact an economic toll on the public at large. See, State v. Fleury, 799 So.2d [468] at 475 [ (La.2001) ].
Additionally, the record indicates that at least two of defendant’s underlying felony offenses, used for enhancement in this case, were also felony theft convictions (i.e., one for merchant theft between $100 and $500 and one for general theft over $500). Although convicted twice before for theft, she continued to engage in this illegal activity. The right of states to enact more onerous penalties for those who cannot bring their conduct within social norms has been sanctioned by the Supreme Court. See, Solem v. Helm, [463 U.S. 277] 103 S.Ct. [3001] at 3013 [77 L.Ed.2d 637 (1983) ]; Rummel v. Estelle, [445 U.S. 263] 100 S.Ct. [1133] at 1136 [63 L.Ed.2d 382 (1980) ]. Defendant also had a third conviction for cruelty to a juvenile, wherein she was convicted of beating her three-year-old child with an electrical cord. Defendant appears to be the type of recidivist offender the legislature contemplated in enacting harsher penalties for multiple felony offenses.

Id. at 1231.

In State v. Frank, 94-923 (La.App. 5 Cir. 3/1/95), 652 So.2d 121, the defendant was convicted of theft of goods valued at $100.00 to $500.00. The state filed a multiple bill of information, charging the defendant as a fourth felony offender. After a hearing, the trial court found the defendant to be a fourth felony offender, and the defendant was sentenced to serve twenty years at hard labor. On appeal, the defendant challenged the sentence as excessive. The court upheld the sentence, noting, in pertinent part:

h,It is well settled that a sentence should not be set aside absent manifest abuse of discretion. State v. Davis, supra [449 So.2d 452 (La.1984) ]; State v. Anseman, 607 So.2d 665 (La.App. 5 Cir. 1992), writ denied, 613 So.2d 989 and 613 So.2d 990 (La.1993); State v. Payne, 612 So.2d 153 (La.App. 5 Cir.1992). Although the trial judge was not explicit in his reasons for sentencing, it is clear from the record that he was aware of the nature of the crime of which defendant was convicted, as well as the fact that defendant was a career criminal with a total of fourteen prior convictions (mostly felonies) including one for burglary. The sentence the judge imposed was not only within the statutory limits but was, in fact, the minimum sentence. Therefore, considering the totality of the circumstances, we cannot say that this sentence constitutes a manifest abuse of his discretion.

Id. at 123.

In State v. Ballay, 99-906 (La.App. 5 Cir. 2/29/00), 757 So.2d 115, writ denied, 00-908 (La.4/20/01), 790 So.2d 13, the defendant appealed his conviction of theft of goods between $100.00 and $500.00 and sentence of life imprisonment as a fourth felony offender. The defendant argued his sentence was excessive. The court affirmed the sentencing explaining, in pertinent part:

The defendant was adjudicated a fourth felony offender. As a fourth felony offender, the defendant faced the following penalty as provided by La.R.S. 15:529.1(A)(l)(c)(i):
(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; (Emphasis added).
The defendant was originally convicted of theft of goods, which, according to La.R.S. 14:67.10(B)(2), is punishable by a maximum of two years imprisonment. However, based on the sentencing provisions in La.R.S. 15:529.1(A)(l)(c)(i), the defendant faced an enhanced sentencing exposure of twenty years to life imprisonment.
It is well settled that a sentence should not be set aside absent manifest abuse of discretion. State v. Anseman, 607 So.2d 665, 674 (La.App. 5 Cir.1992), writ denied, 613 So.2d 989 (La.1993). In reviewing claims of an excessive sentence, an appellate court uses a two-step process. First, the record must show adequate consideration of the criteria set forth in La.C.Cr.P. art. 894.1. State v. Smith, 433 So.2d 688, 698-699 (La.1983). The trial court is not required to list every aggravating and mitigating circumstance so long as the record reflects adequate consideration of the guidelines of La.C.Cr.P. art. 894.1. State v. Smith, supra; State v. Gene, 587 So.2d 18, 24-25 (La.App. 2 Cir.1991), writ denied, 604 So.2d 993 (La.1992). The articulation of the factual basis for the sentence is the goal of La.C.Cr.P. art. 894.1. Remand is unnecessary when a sufficient factual basis for the sentence is shown in the record. State v. Lanclos, 419 So.2d 475, 478 (La.1982).
Recent jurisprudence supports the imposition of the maximum sentence under this statute where the defendant’s criminal record is extensive. State v. Tran, 97-640 (La.App. 5 Cir. 3/11/98), 709 So.2d 311, 318; State v. Conners, 577 So.2d 273, 274 (La.App. 3 Cir.1991). The records reflects that the trial court was aware of the nature of the crime for which defendant was convicted and was aware of the fact that defendant was a career criminal with a total of thirty-three felony convictions and seventy-seven felony arrests. For procedural reasons, those convictions could not be used to enhance defendant’s sentence through a multiple offender proceeding. The judge nevertheless felt that defendant’s extensive criminal record was a basis for imposing the maximum sentence allowed under the statute. Considering the foregoing, the trial court did not abuse its wide discretion in sentencing defendant to the maximum term. Therefore, we find that the sentence is not excessive based on the facts presented in this case.

Id. at 134-35.

Here, the thirty-year sentence is in the lower range, and, based on the facts of this case, we cannot say that the trial court abused its discretion in handing down this sentence. The sentence is, therefore, affirmed.

DECREE

For all of the foregoing reasons, Defendant’s thirty-year sentence is affirmed. That portion of the sentence prohibiting the benefit of parole is deleted, and the trial court is ordered to note said amendment in the court minutes.

AFFIRMED AS AMENDED.

THIBODEAUX, Chief Judge, dissents with written reasons.

THIBODEAUX, Chief Judge,

dissenting.

11 Using the abuse of discretion standard as a shield, the majority affirms a thirty-year sentence without probation, parole, or suspension of sentence for a petty thief convicted of stealing $508.00 worth of merchandise. The value barely exceeded the monetary threshold for a misdemeanor. While I do not condone Defendant’s actions, the thirty-year sentence is constitutionally excessive.

By platitudinously giving deference, and sometimes reverence, to a trial court judgment under the rubric of “abuse of discretion,” appellate courts effectively transform a trial court into a court of last resort. This review process, which one author has called “automated verbiage or knee jerk terminology,” See Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from, Above, 22 Syracuse L.Rev. 635, 659 (1970-1971), often immunizes trial court rulings and insulates them from in-depth review for the consequences flowing therefrom. Such is the case here.

Justice is blind, we are dutifully told. However, “such blindness does not include a state of insensitivity to that which is so obvious.” Trahan v. Superior Oil Co., 204 F.Supp. 627, 632 (W.D.La.1962), aff'd, 322 F.2d 234 (5th Cir.1963). What is so obvious is the imposition of a thirty-year sentence on this Defendant who has only one prior misdemeanor act of violence. While our system of review must respect some discretion, we must equally respect the notion that | fliscretio est discerniere per legen quid sit justum — unlimited discretion does not exist in law.

This case is a worthy example of one of the primary reasons behind the escalating growth of Louisiana’s prison industrial complex. Louisiana’s “loek-em-up and throw away the key” philosophy has spawned an incarceration industry unlike any other state or country. Our judiciary has in many ways fostered and perpetuated this economically unwise and, in some instances, inhumane practice. This madness must stop. Unfortunately, this case accentuates the madness.

According to the United States Department of Justice, Bureau of Vital Statistics, the United States has the highest incarceration rate in the world at 730 per 100,000 residents. Louisiana imprisons 1,619 people per 100,000 residents, or approximately 2.25 times the nation’s rate. The Louisiana Department of Corrections estimates that 1 in 54 Louisiana adults is serving time, nearly double the national average. Louisiana’s imprisonment rate is nearly three times Russia’s rate of 525 per 100,-000; five times Iran’s rate of 333 per 100,000; thirteen times China’s rate of 122 per 100,000; and twenty-six times Afghanistan’s rate of 62 per 100,000. The state nearest Louisiana’s incarceration rate is Mississippi with an incarceration rate of 686 per 100,000 residents.

Mr. Jackson was convicted of a nonviolent offense, theft. He is very similar to other Louisiana inmates. The Louisiana Department of Corrections and the United States Department of Justice, Bureau of Justice Statistics established that 64% of Louisiana inmates are serving time for drugs and other nonviolent offenses, like theft. The national average is 48%.

Since 1977, Louisiana’s incarceration rate has increased sixfold from 6,731 to 39,709. Since 1982, its rate has increased 272%, and Louisiana is one of five states that represent 50% of the prison growth nationally, despite a drop in lacrime rates from 1998-2008. See James M. LeBlanc, Louisiana Department of Public Safety and Comctions: Challenges and Solutions, Nov. 2010.

Louisiana ranked twelfth in the nation in fiscal year 2007 in the percentage of general fund expenditures allocated to corrections-related activities. Its 7.5% exceeded the national average of 6.8%. The Pew Center on the States, One in 100: Behind Bars in America, 2008.

Given these daunting statistics, Defendant’s thirty-year sentence makes no meaningful contribution to acceptable goals of punishment, is nothing more than a needless imposition of punishment, and is a waste of scant economic and human resources. This case helps only to solidify Louisiana’s unflattering position as the poster child for imprisonment and as the incarceration capital of the world.

For the foregoing reasons, I respectfully dissent.

      . A simple criminal damage to property charge was severed.

      . Mr. LeBlanc is Secretary of the Louisiana Department of Public Safety & Corrections.

      . The year 2007 represents the latest available figures.