source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Renee TYLER.
    No. 11-1123.
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2012.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Renee Tyler.
    John F. DeRosier, District Attorney, Johnathan Blake, Carla Siegler, Karen C. MeLellan, Assistant District Attorneys, Lake Charles, LA, for State of Louisiana/Appellee.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX, and Judges SYLVIA R. COOKS and ELIZABETH A. PICKETT.
   COOKS, Judge.

11 PROCEDURAL HISTORY

Renee Tyler (Defendant), was charged by bill of indictment with second degree murder, a violation of La.R.S. 14:30.1; and obstruction of justice, a violation of La.R.S. 14:130.1(A)(1). Following a jury trial, Defendant was convicted of the charged offenses. Defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence on the charge of second degree murder. She was sentenced to serve two years on the charge of obstruction of justice, this sentence to run concurrently with the previously imposed sentence. Defendant appeals her convictions.

FACTS

On the night of February 20, 2010, the Lake Charles Police Department received a call from Defendant reporting that she shot someone. The Defendant admitted to the officers on the scene that she shot the victim, Elliott Thomas (Thomas). Thomas was in a relationship with Defendant, and the two were living together at the time. She told one officer, “I did it. The f-— is not gonna mess with me anymore.” She further admitted to hiding the gun in an undisclosed location where it would never be found. Defendant never disclosed the location of the weapon. Police found Thomas lying on the bedroom floor. He was transported to a local hospital where he later died as a result of a gunshot wound.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record we find one such error concerning the sentence imposed for second degree murder. | ¡.Defendant's life sentence for second degree murder was not imposed at hard labor rendering the sentence illegally lenient. However, because we set aside the convictions as null and remand the case with instructions, this error is rendered moot.

LAW AND DISCUSSION

Defendant contends the trial court erred in allowing defense counsel to withdraw the Motion to Appoint Sanity Commission as this was a further step in the prosecution of the ease. We agree. Such action is prohibited by La.Code Crim.P. art. 642. Once the issue of mental capacity is raised and a sanity commission appointed, no further steps can be taken until the court determines Defendant has the mental capacity to proceed. The State suggests that this court remand the matter to the trial court for a nunc pro tunc hearing to determine whether an inquiry can be had regarding Defendant’s competency. Should such a determination not be possible, or in the event the trial court holds a hearing and determines Defendant was not competent at the time of trial, a new trial should be ordered. The State further contends the issue of mental capacity to proceed was not raised by trial counsel but was raised pro forma by the Public Defender’s Office when that office knew nothing of Defendant or her case. The State argues that the defense attorney who assumed representation of Defendant should not have been bound to a motion the evidence did not support and he did not file. Moreover, the State argues withdrawal of the motion should have been left to the trial counsel’s discretion. Accordingly, the State contends, in the alternative, that a nunc pro tunc competency hearing is a waste of judicial resources and is not legally required.

Although in some cases such a remand for a nunc pro tunc hearing is possible, we find there is nothing in the record which the trial court could review [ .^concerning a determination of Defendant’s competency. A review of the record discloses that no mental health examinations were performed on Defendant and there is virtually no evidence of record regarding Defendant’s competency at the time of trial.

At a March 17, 2010 preliminary examination held under docket number RC662-10 (second degree murder), the prosecutor informed the court that the case had not yet been before the grand jury and that he was concerned because the Public Defender’s Office had requested appointment of a sanity commission on the obstruction of justice charge. Ted Hartman (Hartman), present as defense counsel at the preliminary examination, indicated he represented Defendant on both charges. He previously communicated to the trial court his intention to enroll as counsel in the case. The trial court relieved the Public Defender’s Office of its representation at the hearing.

The prosecutor expressed concern that the request for a sanity commission would stay all proceedings. The court stated that a sanity commission hearing was set for March 24, 2010. Hartman moved to withdraw the sanity commission hearing, and the court, after initially expressing some hesitancy, agreed to proceed:

HARTMAN:
Your Honor, at this time I would like to withdraw the sanity commission hearing and reserve the right to invoke it again, if I feel necessary in my representation, because I’ve represented her for a short amount of time.
My concern is I want to be able to preserve her right to have the preliminary examination and, you know, — I guess my position is that I would like to have the preliminary hearing today, if the State’s prepared to go forward with that today.
THE COURT:
Well, before I even get Mr. Bryant’s position on that, do we know whether or not Ms. Tyler has been seen by either of the physicians appointed by this Court?
I ¿HARTMAN:
I don’t believe—
(Counsel and defendant confers.)
HARTMAN:
No, I didn’t believe that she had been.
THE COURT:
Thinking out loud here, my concern was what if both doctors had seen her and ultimately it’s determined that there is a problem. I wonder if we’re going through useless exercises.
BRYANT:
Well, our only concern was that, pro-eedurally speaking, if a sanity commission is appointed, then it stays all other proceedings. If he’s withdrawing that request at this time without prejudice,— which means I assume he may want to file it again in the future—
HARTMAN:
Correct.
BRYANT:
We can proceed with the preliminary examination, Your Honor.
THE COURT:
Okay.
HARTMAN:
That’s what I’d like to do.
BRYANT:
Okay.
THE COURT:
Okay. Let’s go. So you’re indicating you’re ready to proceed on the preliminary—
BRYANT:
Yes, Your Honor.
THE COURT:
Okay

The record indicates the Public Defender’s Office filed a Motion to Appoint Sanity Commission in docket number RC750-10 on the charge of obstruction of | ¡justice. An Order Appointing Sanity Commission was signed by the judge on March 10, 2010, appointing Drs. Anderson and Robertson to serve on the commission. The contradictory hearing was set for March 24, 2010, but as discussed above, the “hearing” was withdrawn by defense counsel.

The Louisiana Code of Criminal Procedure Article 642 states (emphasis added):

The defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.

Louisiana Code of Criminal Procedure Article 643 requires the trial court order a mental examination of Defendant when it has reasonable ground to doubt Defendant’s mental capacity to proceed. Louisiana Code of Criminal Procedure Article 644 requires the court appoint a sanity commission to examine and report on the mental condition of Defendant within seven days after a mental examination is ordered. The examination was ordered in the present case, indicating the trial court found reasonable ground to doubt Defendant’s capacity to proceed. See State v. Strain, 42,809 (La.App. 2 Cir. 12/5/07), 972 So.2d 1184, and State v. Nomey, 613 So.2d 157 (La.1993). Withdrawal of a motion to appoint a sanity commission has been found to be a further step in the prosecution which improperly removes the ultimate decision of competency from the trial court. State v. Carney, 25,518 (La.App. 2 Cir. 10/13/95), 663 So.2d 470, Strain, 972 So.2d 1184, State v. Darnell, 43,048 (La.App. 2 Cir. 8/13/08), 988 So.2d 870. Thus, we find allowing the case to move forward in the absence of a determination that Defendant had the capacity to proceed was legal error.

|fiHaving determined this error of law, we must now decide whether this error warrants a reversal of Defendant’s convictions and sentences or a remand for a determination of whether a nunc pro tunc finding of competency remains possible. In State v. Robinson, 10-924 (La.12/17/10), 50 So.3d 156, 156-57, the supreme court held:

GRANTED. The judgment of the court of appeal vacating the defendant’s conviction, habitual offender adjudication, and sentence is reversed. The State concedes the trial court failed to determine whether the defendant was competent to proceed prior to commencing jury trial; however, the State contends the matter should be remanded to the trial court for a determination of whether a nunc pro tunc finding of competency remains possible. We agree. Per State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, we remand the matter to the trial court to determine whether a meaningful inquiry can be had regarding defendant’s competency. If it is found that a meaningful retrospective competency hearing is possible, we order the hearing to be conducted and the issue to be determined.

A closer look at the fifth circuit’s sum-marization of the arguments in Robinson sheds light on the supreme court’s subsequent ruling:

In the brief filed by counsel, the defendant claims that the record is deficient concerning the defendant’s competency and, therefore, his conviction and sentence should be set aside and the matter remanded for further hearings and/or a new trial. The defendant argues that, while the May 15, 2008 minute entry suggests that the defendant was found competent to stand trial, the May 15, 2008 transcript does not reflect a clear resolution on the defendant’s competency. The defendant claims that the May 15, 2008 transcript, that cannot be further supplemented because of an equipment malfunction, is deficient on the trial court’s determination of the defendant’s competency to stand trial.
In addition, the defendant argues that the May 14, 2008 letter from Doctors Salcedo and Richoux concerning the defendant’s competency, which was sent as an exhibit with the supplement to the appellate record, does not indicate that the letter addressed to the trial judge at the courthouse was ever received because it is not stamped by the Clerk’s Office for the Twenty-Fourth Judicial District Court. The record also does not reflect that the trial judge personally received or reviewed the May 14, 2008 letter.
The defendant contends that, after the trial judge found that a bona fide question had been raised regarding the defendant’s 17competency, certain procedures had to be followed which the trial judge failed to do. The defendant admits that the record reflects that two doctors evaluated the defendant and found him competent to stand trial. However, the defendant argues that there is nothing in the record to show that the trial judge personally considered the doctors’ evaluation, spoke to the doctors, or adjudicated the issue of the defendant’s competency. The defendant asserts that the record reflects that “Barbara Johnson” made the determination of whether the defendant was competent to stand trial. The defendant argues that the propriety of the determination that the defendant was competent to stand is questionable and he is prejudiced because the scarcity of evidence available in the record leaves the correctness of the finding beyond the reach of appellate review.
The State claims that there were several hearings conducted concerning the defendant’s competence. The State contends that, in one of those hearings, defense counsel stipulated that the diagnosis of the defendant was appropriate and accurate. According to the State, the index of the supplement to the appellate record contains a May 14, 2008 report from Doctors Salcedo and Ri-choux indicating the defendant “was examined and proved to be competent to stand trial.” Alternatively, the State suggests the case should be remanded to determine if a nunc pro tunc hearing is possible in order to retrospectively determine his competence. The State notes that if the trial court finds that the defendant was competent, no new trial is required.
In his pro se rebuttal brief, citing State v. Carney, 25,518 (La.App. 2 Cir. 10/13/95), 663 So.2d 470, the defendant suggests that remand for a nunc pro tunc hearing is absurd. The defendant claims that upholding his conviction would deprive him of the protective measures mandated in LSA-C.Cr.P. art. 641 et seq. and, thereby, deprive him of his due process rights to a fair trial. The defendant argues that the trial court erred in allowing further steps in the prosecution pursuant to LSA-C.Cr.P. art. 642 after he raised the issue of his mental capacity to proceed. The defendant asserts that the trial court’s doubt of his mental capacity to proceed was shown when the court granted his motion and appointed a sanity commission to examine and evaluate him. The defendant contends that his rights to have his competency to stand trial determined and ruled upon by the trial court cannot be waived or withdrawn by his defense attorney. Therefore, the defendant asks this Court to safeguard his due process rights to a fair trial by vacating his conviction and sentence and remanding his case for a new trial.

State v. Robinson, 09-371, pp. 4-6 (La.App. 5 Cir. 3/23/10), 39 So.3d 692, 695-96.

18After discussing pertinent jurisprudence on the matter, the fifth circuit concluded:

In the present case, we find, based upon the decisions in State v. Nomey, State v. Perkins [759 So.2d 334 (La.App. 5 Cir.2000)], State v. Seals [State ex rel. Seals v. State, 831 So.2d 828 (La.2002)], State v. Strain, supra [972 So.2d 1184 (La.App. 2 Cir.2007)], that all proceedings after the appointment of the sanity commission, including the defendant’s conviction and sentence, should be vacated because the record does not indicate that the trial judge ruled on the defendant’s competency to proceed and the facts of this case do not allow for a retroactive competency hearing. In addition, we find, as the Louisiana Supreme Court found in State v. Nomey, supra, that this is the type of situation that LSA-C.Cr.P. art. 642 was designed to prevent. As the Louisiana Supreme Court found in State v. Nomey, supra, the fact that the defendant was competent to proceed based on the report of the sanity commission misses the point because, regardless of whether a retroactive determination of sanity could be made, the defendant was deprived of statutory protective procedures prior to his conviction and, therefore, he was deprived of his due process rights. State v. Nomey, 613 So.2d at 161. Thus, we vacate the defendant’s conviction and sentence for simple burglary of a vehicle, and remand the case to the trial court and order that no further steps in the prosecution be taken until the defendant is evaluated, a hearing is conducted, and the trial judge rules on the defendant’s capacity to proceed.

Robinson, 39 So.3d at 704.

In State v. Snyder, 98-1078, pp. 29-32 (La.4/14/99), 750 So.2d 832, 854-56 (footnotes omitted), the Louisiana State Supreme Court held:

Having found that the trial court abused its discretion in failing to investigate defendant’s claims of incompetency, we must now determine the proper remedy. In the instant situation, we believe a nunc pro tunc hearing to determine whether defendant was competent at the time of his trial is appropriate if a meaningful inquiry into defendant’s competency can still be had.
In State v. Nomey, 613 So.2d 157 (La.1993), defendant was allowed to plead guilty to first degree murder one day after the members of a sanity commission conducted their examinations. In a motion for post-conviction relief, defendant argued the trial court’s failure to conduct a hearing on the issue of his sanity prior to accepting his guilty plea violated his due process rights. The trial court denied the request for post-conviction relief, but on appeal the court of appeal ordered the trial court to conduct an evidentiary hearing to determine defendant’s capacity to proceed at the time of the entry of the plea. After the hearing, the trial court held defendant had the capacity to proceed when the plea was entered. The court of | ^appeal affirmed this determination. This court held the court of appeal erred in remanding the case for a retroactive sanity hearing because the trial court’s acceptance of the plea without first resolving the issue of defendant’s competency violated defendant’s due process rights. The court did, however, note the following:
The present case is distinguishable from a case such as State v. Bennett, 345 So.2d 1129 (La.1977). In Bennett, the sanity hearing was held, but the examining physicians admitted that they could not be certain of their results without further clinical evaluation of defendant. The trial judge failed to order additional testing upon defendant’s request. Defendant was thereafter found guilty as charged by a jury. On appeal, we remanded for another sanity hearing following a complete reexamination of the defendant. Unlike the present case, the defendant in Bennett did receive a hearing, at which the members of the sanity commission testified. Further, the defendant in Bennett alleged he suffered from mental retardation, which we found to be a more static condition than mental illness. Hence, under certain limited circumstances, a retroactive determination of sanity may be permissible. Likewise, we do not mean to foreclose the possibility of a nunc pro tunc competency hearing, if a meaningful inquiry into defendant’s competence can still be had, in those cases where the trial judge ignores a bona fide doubt as to defendant’s competence to stand trial, or the issue of competence is not raised at trial. See Lokos v. Capps, 625 F.2d 1258 (5th Cir.1980); Zapata v. Estelle, 588 F.2d 1017 (5th Cir.1979). Those cases are not applicable to the present case, however, since defendant did raise the issue of competence prior to trial and the trial judge agreed there was reasonable ground for a mental examination under La.Code Crim.P. art. 643.
Nomey, 613 So.2d at 162 n. 8. Thus, Nomey does not preclude the possibility of a nunc pro tunc competency hearing in a case such as the one sub judice where the trial judge ignored a bona fide doubt as to defendant’s competence to stand trial.
The federal courts of appeals, although noting that retrospective competency hearings are not favored, have allowed nunc pro tunc hearings on the issue of competency if a meaningful inquiry into the defendant’s competency can still be had. See, e.g., Reynolds v. Norris, 86 F.3d 796 (8th Cir.1996); Watts v. Singletary, 87 F.3d 1282 (11th Cir.1996); United States v. Renfroe, 825 F.2d 763 (3rd Cir.1987); Zapata v. Estelle, 588 F.2d 1017 (5th Cir.1979). The trial court is in the best position to determine whether it can make a retrospective determination of defendant’s competency during his trial and sentencing. Renfroe, 825 F.2d at 767. The determination of whether a trial court can hold a meaningful retrospective competency |10hearing is necessarily decided on a case-by-case basis. Miller v. Dugger, 838 F.2d 1530 (11th Cir.1988). The State bears the burden to show the court that the tools of rational decision are available. Lokos v. Capps, 625 F.2d 1258 (5th Cir.1980).
A “meaningful” determination is possible “where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant’s condition at the time of the original state proceedings.” Reynolds, 86 F.3d at 802. Additionally, “[wjhen determining whether a meaningful hearing may be held, we look to the existence of contemporaneous medical evidence, the recollections of non-experts who had the opportunity to interact with the defendant during the relevant period, statements by the defendant in the trial transcript, and the existence of medical records. The passage of time is not an insurmountable obstacle if sufficient contemporaneous information is available.” Reynolds, 86 F.3d at 803 (citations omitted). The court in Miller v. Dugger, 838 F.2d 1530 (11th Cir.1988) noted that it had never given the district courts a list of factors that must be met in order to determine that a nunc pro tunc determination of competency is possible, but stated that relevant factors include time, availability of witnesses and the existence of evidence on the state record about the defendant’s mental state at the time.
Because we believe a nunc pro tunc competency hearing may be possible to rectify the trial court’s error in failing to make further inquiry into defendant’s competency prior to trial, we will remand the case to the trial court for the sole purpose of determining whether such a hearing is now possible and, if so, to conduct such an evidentiary hearing. Because of the sparse testimony before the trial court, we envision the taking of additional testimony and evidence, including medical testimony relating to defendant’s mental condition during that time prior to trial when he was allegedly unstabilized on his new medication and the records of examining physicians made during that time period, to allow the trial court to determine whether defendant was competent. See Renfroe, 825 F.2d at 767. If the trial court concludes defendant was competent, no new trial is required to be conducted. United States v. Haywood, 155 F.3d 674 (3rd Cir.1998). If the trial court finds a meaningful inquiry cannot be had, or if it determines after the hearing that defendant was not competent at the time of his trial, defendant shall be entitled to a new trial. See United States v. Mason, 52 F.3d 1286 (4th Cir.1995); Zapata v. Estelle, 588 F.2d 1017 (5th Cir.1979).(Emphasis added)

In State ex rel Seals v. State, 00-2738 (La.10/25/02), 831 So.2d 828, the court appointed a psychiatrist to examine the defendant on motion of defense counsel. The defendant was never examined, and no determination regarding competency was made prior to trial. In an application for post-conviction relief, | nthe defendant asserted a due process violation for the trial court’s failure to conduct a competency hearing. The trial court held a series of hearings on the application for post-conviction relief, assessing, among other things, whether a meaningful evaluation of competency could be made under Nomey and Snyder. Testimony of the defense attorney and psychiatry experts was had which the supreme court summarized as follows:

Woods reported little recollection of working on the defendant’s case. Dr. Riehoux indicated that he could make a determination nunc pro tunc, but acknowledged that his brief consultations with defendant did not allow him to glean the kind of information he would obtain in a competency assessment. Dr. Richard Riehoux conducted brief interviews of defendant, each lasting between five and fifteen minutes, while defendant was on prison suicide watch, but never examined the defendant for the purpose of a competency evaluation. Dr. Ri-choux agreed that a competency evaluation was certainly different from the visits he conducted with the defendant. Without firsthand knowledge of the defendant’s mental condition, Dr. Ri-choux’s testimony drew extensively from his retrospective reading of defendant’s trial testimony. Furthermore, Dr. De-Prado concluded that no retroactive determination was possible given the brevity of the consultations in 1993 and the lack of other information. The defendant contends that the state provided only scant evidence and has failed to meet its burden of proving that there was enough evidence to make a retroactive determination.

Id. at 831-32.

The trial court determined it could not retroactively determine the defendant’s competency to stand trial. The supreme court agreed, discussing the two options, nunc pro tunc hearing or nullification of the conviction and sentence, as follows:

Nunc Pro Tunc Hearing
In certain instances, a nunc pro tunc hearing on the issue of competency is appropriate “if a meaningful inquiry into the defendant’s competency” may still be had. Snyder at 854. In such cases, the trial court is again vested with the discretion of making this decision as it “is in the best position” to do so. Id. at 855. This determination must be decided on a case-by-case basis, under the guidance of Nomey, Snyder, and their progeny. Id. The state bears the burden in the nunc pro tunc hearing to provide sufficient evidence for | 12the court to make a rational decision. Id. Thus, we must determine first if a meaningful retrospective competency hearing can be held in the instant case or whether the only option to remedy the situation is nullification.
The allowance of a determination nunc pro tunc in cases such as these was first recognized in State v. Snyder. In Snyder, the record gave no basis upon which a reviewing court could determine if the trial court properly inquired into the defendant’s competence. Factors which a court may consider to conduct a proper inquiry are known as the Bennett factors and include:
[W]hether [t]he [defendant] is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.
State v. Bennett, 345 So.2d 1129, 1137 (La.1977). This court, in reviewing the record in Snyder, found no evidence that the trial court considered any of the Bennett factors after defendant’s competency was raised. However, in Snyder, there was considerable evidence, both psychiatric and lay testimony, regarding the defendant’s state of mind. In contrast, there was no affirmative evidence that the trial judge in the instant case conducted any investigation into defense allegations other than signing the order for the appointment of a psychiatrist.
In State v. Franks, 391 So.2d 1133 (La.1980), State v. Berry, 391 So.2d 406 (La.1980), and State v. Hicks, 286 So.2d 331, 333 (La.1973), the trial courts granted the defendants psychiatric examinations, which fell short of a request for a full-blown sanity commission, and ruled on the merits of whether a reasonable ground existed for appointment of a sanity commission. The order in the instant case was never seen to fruition as in Franks, Berry, and Hicks.
We find the rule of Article 642 is broad enough to encompass situations in which the trial court may appoint a mental health expert (such as Franks and Berry) as well as those occasions in which the court must appoint a sanity commission because reasonable grounds exist for doubting the defendant’s competency. Having signed the motion, the court clearly erred as a matter of law under La.Code Crim. Proc. art. 642 by proceeding to trial without making any assessment of defendant’s capacity to proceed. Finding that the prosecution of the |13instant case should have been stayed to properly determine defendant’s capacity, we now turn to a determination of whether the exception to nullification applies in this case.
In order for the exception to nullification to be applicable, we must find that a meaningful retrospective determination of competence can now be made. The evidence is so scant that the district court correctly ruled that it could not cure the error by ordering a nunc pro tunc determination because, in the instant case, we can only guess from the scant evidence in the record that the trial judge found a bona fide issue regarding defendant’s Motion for Psychiatric Evaluation. We agree with the defendant’s argument that a meaningful determination of defendant’s competence cannot now be made.
Nullification
Significantly, Nomey and the present case differ in some factual respects but also raise significantly similar legal issues. In Nomey, the defense explicitly petitioned to have a sanity commission appointed under the authority of La. Code Crim. Proc. art. 643, and the trial court granted the motion, appointing the requisite two doctors to examine the defendant. As we noted in Nomey, since the trial court ordered the examination, it must have found reasonable grounds upon which defendant’s mental capacity to proceed was doubted. However, in the instant case, the trial court did not appoint a sanity commission but rather ordered an Article 643 preliminary inquiry before reaching the “reasonable grounds” issue. A trial court’s preliminary inquiry of this nature does not constitute the unilateral conducting of a sanity hearing for the purposes of La.Code Crim. Proc. art. 646. State v. Martin, 00-0489 (La.9/22/00), 769 So.2d 1168, 1169-70 (per curiam). Even though the present case does not present a situation where a sanity commission was either explicitly requested or deemed necessary by the trial court, Nomey applies if a meaningful retrospective determination of defendant’s capacity cannot be made from the record.
The district court on the instant motion for post conviction relief found insufficient evidence to allow a retroactive competency hearing. We agree with the district court’s determination that the facts of the instant case do not allow a retroactive competency hearing. Accordingly, we affirm the judgment of the district court.

Seals, 831 So.2d at 833-35.

In State v. Juniors, 05-649, p. 14 (La.App. 3 Cir. 12/30/05), 918 So.2d 1137, 1145, writ denied, 06-267 (La.9/15/06), 936 So.2d 1257, cert. denied, 549 U.S. 1226, 127 S.Ct. 1293, 167 L.Ed.2d 110 (2007), in considering whether the defendant’s conviction 114should result in nullification or a nunc pro tunc hearing, this court discussed Snyder and held:

In the present case, Defendant was examined by the two members of the sanity commission. Additionally, the record indicates that Defendant may have been evaluated by other mental health experts, given defense counsel’s statements at a hearing on July 31,1998, that an “ex-parte motion for funds for psychiatric experts” had already been granted, that a forensic social worker that had been ordered to conduct the investigation was no longer employed by the clinic being used, and that an order substituting a replacement would be presented to the court. Thus, there may be information regarding Defendant’s competency that is available to the trial court that is not contained in this appellate record. Accordingly, the trial court may be able to make a retrospective determination regarding Defendant’s competency at the time of trial.
For these reasons, we remand this case to the trial court for the sole purpose of determining whether such a hearing is now possible and, if so, to conduct such an evidentiary hearing. If the trial court concludes that Defendant was competent, no new trial is required. If the trial court finds a meaningful inquiry cannot be had, or if it determines after the hearing that Defendant was not competent at the time of his trial, Defendant is entitled to a new trial. See Snyder, 750 So.2d 832; [State v.] Mathews, 809 So.2d 1002 [(La.App. 1 Cir.2001)].

In the instant case, unlike Juniors, there is nothing in the record for the trial court to review and make any retroactive determination regarding Defendant’s mental competency to stand trial. While the language employed in Snyder indicates the issue of whether a retroactive determination of competency can be made is best handled by the trial court, the Snyder court stated, “[b]ecause we believe a nunc pro tunc competency hearing may be possible to rectify the trial court’s error in failing to make further inquiry into defendant’s competency prior to trial, we will remand the case to the trial court for the sole purpose of determining whether such a hearing is now possible and, if so, to conduct such an evidentiary hearing.” Snyder, 750 So.2d at 855. Thus, the language in Snyder at least implies that the reviewing court must first determine whether a retroactive 1 Ir,determination of competency is a possibility before remanding to the trial court to ultimately decide the issue.

In the instant case, the trial judge, by granting the motion seeking appointment of a sanity commission, apparently found there was reasonable ground for a mental examination of Defendant. Although a sanity commission was appointed to examine Defendant, the record indicates that she never met with the appointed doctors. There is virtually no evidence on the record concerning Defendant’s competency at the time of trial leaving the trial court nothing to review nunc pro tunc. We therefore find that Defendant’s convictions and sentences are null, and set aside, and it is ordered that this matter is remanded to the trial court with instructions to comply with La.Code Crim.P. arts. 641-649.1, prior to taking any further steps toward prosecution.

CONVICTIONS AND SENTENCES NULL AND SET ASIDE, REMANDED WITH INSTRUCTIONS.

      . This court addressed a similar issue in State v. Washington, an unpublished writ bearing docket number 06-459 (La.App. 3 Cir. 7/5/06). After a sanity commission was ordered, defense counsel requested to vacate the commission; the request was granted by the trial court. The defendant subsequently entered guilty pleas to various offenses. The record indicated that relator was never taken to see any of the appointed members of the sanity commission. Additionally, there was no indication in the materials filed with this court that the record contained any medical information concerning relator’s mental status which would allow for a determination of his mental condition at the time of his plea. In that case we held:

        WRIT GRANTED AND MADE PEREMPTORY: The trial court was in error in allowing Relator to withdraw his request for appointment of a sanity commission prior to determining his mental capacity to proceed. La.Code Crim.P. art. 641. Accordingly, Relator’s conviction and sentence are null, and set aside, and it is ordered that this matter is remanded with instructions to comply with La.Code Crim.P. arts. 641-649.1, prior to taking any further steps toward prosecution. See State ex rel. Seals v. State, 00-2738 (La.10/25/02), 831 So.2d 828, writ denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997) and State v. Juniors, 05-649 (La.App. 3 Cir. 12/30/05), 918 So.2d 1137.


author: EZELL, Judge. THIBODEAUX, Chief Judge,

text:
    Blake PLAUCHE, et al. v. LIBERTY MUTUAL INSURANCE CO., et al.
    No. CA 11-1288.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 2012.

      Ronald J. Fiorenza, John D. Ryland, Matthew J. Gay, Provosty, Sadler, DeLau-nay, Fiorenza & Sobel, APC, Alexandria, LA, for Defendants/Appellants, Liberty Mutual Insurance Co., Church Point Wholesale Grocery Co., Inc., A/K/A Acadia Wholesale Grocery Co., Inc., Brad E. Randell.
    Darrel Dee Ryland, J.B. Treuting, Wesley Elmer, Danika A. Benjamin, Danielle A. Soldani-Ryland, Stephen C. Ryland, Marksville, LA, for Plaintiffs/Appellees, Blake Plauche, Allison Plauche.
    Mark Alan Watson, Stafford, Stewart, & Potter, Alexandria, LA, for Defendants/Appellants, Liberty Mutual Insurance Co., Church Point Wholesale Grocery Co., Inc., Brad E. Randell.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

|, Brad Randell, his employer, Church Point Wholesale Grocery, and its insurer, Liberty Mutual Insurance Company (hereinafter referred to collectively as “the Defendants”) appeal a judgment granting Blake Plauche a summary judgment as to liability in an auto accident and damages arising therefrom. For the following reasons, we hereby affirm the judgment of the trial court in part, reverse in part, and remand this matter to it for further actions in compliance with this decision.

On March 26, 2009, Mr. Plauche stopped at Bordelon’s Superette in Plaucheville to buy gas. After filling his truck, he attempted to enter Louisiana Highway 107. At the same time, Mr. Randell was driving a tractor trailer delivering goods to the store. As Mr. Randell entered the parking lot, the rear section of his trailer struck Mr. Plauche’s vehicle. As a result, Mr. Plauche suffered back injuries which have rendered him unable to work, have required multiple surgeries, and will force him to have an additional surgery sometime in his future.

After filing suit, Mr. Plauche filed a motion for summary judgment as to liability, claiming the Defendants were 100 percent at fault. The trial court initially denied the motion for summary judgment, but Mr. Plauche again moved for summary judgment. Despite there being no additional evidence attached to the second motion, the trial court granted the second motion for summary judgment, finding the Defendants completely liable for the accident. After trial as to damages, the trial court awarded Mr. Plauche $1,250,000.00 in general damages in addition to $339,952.96 in lost fringe benefits and several hundred-thousand dollars in other specific damages. From that decision, the Defendants appeal.

The Defendants assert six assignments of error on appeal. The Defendants claim that the trial court erred in granting Mr. Plauche’s second motion for |2summary judgment, as they claim genuine issues of material fact existed as to allocation of fault for the accident. They next claim that the trial court erred in granting Mr. Plauche’s motion to strike the jury trial. While the Defendants assert four additional assignments of error, we need only address the first two, as we agree with them that the trial court erred in granting Mr. Plauche’s motion for summary judgment.

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). The party seeking summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. La.Code Civ.P. art. 966(C). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. Appellate review of summary judgments is de novo, utilizing the same criteria that guide the trial court. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152.

Willis v. Cenla Timber, Inc., 08-1041, p. 2 (La.App. 3 Cir. 2/4/09), 3 So.3d 624, 626.

Moreover, it is not a function of the trial court on a motion for summary judgment to determine or even inquire into the merits of issues raised or to weigh conflicting evidence on the existence of material facts. See, Harrison v. Parker, 31,844 (La.App.2d Cir.5/5/99), 737 So.2d 160 [writ denied, 99-1597 (La.9/17/99), 747 So.2d 565]. When affidavits and exhibits present a choice of reasonable inferences, such inferences must be viewed in the light most favorable to the party opposing the motion for summary judgment.

Brittain v. Family Care Servs., Inc., 34,787, p. 4 (La.App. 2 Cir. 6/20/01), 801 So.2d 457, 460.

In the record before this court, there is clearly a genuine issue of material fact as to liability in that there is a direct conflict between the deposition testimonies of Mr. Plauche and Mr. Randell. Mr. Plauche claims that, after paying for his gas, he pulled to the location of the accident and stopped, waiting for Mr. IsRandell to turn into the parking lot. While Mr. Randell concedes that Mr. Plauche may have indeed been at a stop at the moment and location of impact, he testified that Mr. Plauche was stopped at the gas pump, behind the site of the collision, as he began his entry into the parking lot. This testimony requires Mr. Plauche to have driven forward in the time between when Mr. Randell turned into the lot and the impact itself. Mr. Randell’s belief that Mr. Plauche moved after Mr. Randell began his turn was supported, by the store’s owner, who allegedly told Mr. Randell the accident was the fault of both drivers.

Furthermore, it is clear from the transcript of the hearing on the motion for summary judgment that, upon a second review, the trial court found Mr. Plauche’s evidence more credible. While this may ultimately prove to be the case, evidence is not to be weighed at the summary judgment level. Moreover, the mere fact that the trial court viewed the same exact evidence different ways on separate occasions reinforces the notion that there is, indeed, a genuine issue of material fact. Accordingly, we reverse the trial court’s granting of Mr. Plauche’s motion for summary judgment and remand this matter to the trial court for additional proceedings consistent herewith.

Because we are remanding to the trial court for additional proceedings, the Defendants’ second assignment of error, that the trial court erred in granting Mr. Plauche’s motion to strike the jury trial remains germane.

The right to a jury trial in a civil case in a Louisiana court is a statutory as opposed to a constitutional right. See LSA-C.C.P. arts. 1731-1814; Riddle v. Bickford, 00-2408 (La.5/15/01), 785 So.2d 795, 799. Nonetheless, Louisiana courts have recognized that the right to a civil jury trial is a basic right that should be protected in the absence of specific authority for its denial. Brewton v. Underwriters Ins. Co., 02-2852 (La.6/27/03), 848 So.2d 586, 589. Therefore, when a party makes a timely request and complies with the other procedural requisites, its right to a jury trial cannot be violated. Spencer v. State ex rel. Dept. of Transp. and Development, 03-0539 (La.App. 1 Cir. 8/11/04), 887 So.2d 28, 33. The courts will indulge every presumption |4against a waiver, loss, or forfeiture of the right of a litigant to a civil jury trial. Alkazin v. City of Baton Rouge, 97-0738 (La.App. 1 Cir. 11/7/97), 705 So.2d 208, 212.
This presumption against waiver of the right to a jury trial applies to all parties. Louisiana Code of Civil Procedure article 1734.1 A provides in pertinent part:
Notice of the fixing of the deposit shall be served on all parties. If the deposit is not timely made, any other, party shall have an additional ten days to make the required deposit. Failure to post the cash deposit shall constitute a waiver of a trial by jury.
Following failure of the requesting party to make timely payment of the deposit for costs associated with a jury trial, the other litigants are entitled to step forward and invoke the right to a jury trial by paying the deposit themselves.

Willeby v. JE Merit Constructors, Inc., 04-2421, pp. 4-5 (La.App. 1 Cir. 6/10/05), 917 So.2d 21, 23-24.

The Defendants were ordered by the trial court to pay $3,000.00 to the clerk of court thirty days prior to the June 1, 2011 trial date. They failed to do so, but paid within the additional ten days granted to “any other party” who did not request the jury trial under La.Code Civ.P. arts. 1734 and 1734.1. The Defendants cite Willeby, claiming that because they are three distinct parties in the litigation, they individually had an additional ten days past the original deadline for filing the jury costs to make their deposit to the clerk of court. We disagree.

In Willeby, the parties were antagonistic, had separate counsel, and refusing to allow the defendant therein to have the statutorily-granted ten additional days “would require a defendant to foresee the future as to whether a plaintiff will post a deposit before the deadline provided in the jury trial order.” Willeby, 917 So.2d at 25. Here, no such foresight would be needed. The Defendants, while being three separate entities, filed their answer, requested jury trial, and have done every action in this litigation in concert. More importantly, they are represented by the same | ^counsel. Had the Defendants maintained separate counsel, their argument would have had some validity. However, as applied to the facts of this case, following their interpretation would lead to absurd consequences, as it would simply give multiple parties represented by one counsel carte blanche to ignore orders of the trial court, knowing they would have an additional ten days to pay jury costs under the ridiculous notion that the acting attorney would not know if he would pay the costs for one of his clients to the detriment of the others. We find this argument completely devoid of merit and affirm the judgment of the trial court striking the jury trial.

For the above reasons, the decision of the trial court is affirmed in part, reversed in part, and remanded to the trial court for further proceedings in accordance with our ruling. Costs of this appeal are assessed fifty percent to Mr. Plauche and fifty percent to the Defendants.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Chief Judge THIBODEAUX concurs in part and dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

concurring in part and dissenting in part.

IU concur in reversing the grant of summary judgment on the issue of liability and in affirming the trial court’s judgment on the lack of entitlement to a jury trial.

My disagreement with the majority focuses on the extent of the proceedings on remand. In my view, remand should be limited to a trial on the sole issue of liability. Damages would remain as awarded by the trial court. If the trial court assessed comparative negligence after a full trial, it could adjust the damage awards accordingly. Otherwise, the awards would remain extant.

For the foregoing reasons, I dissent in part.


author: SAUNDERS, J. PICKETT, J„

text:
    Kenneth MARTIN v. Beverly S. MARTIN, now Woods.
    No. 11-1496.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 2012.
    Scott Westerchil, Attorney at Law, Leesville, LA, for Defendant/Appellant, Beverly S. Martin, now Woods.

      Clay Williams, Williams & Nelson, Lees-ville, LA, for Plaintiff/Appellee, Kenneth Martin.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, OSWALD A. DECUIR, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, J.

| ,This appeal arises out of a divorce and custody case wherein the trial court removed the mother’s domiciliary status and assigned it to the father. The grounds for modification of custody were, inter alia, the mother’s failure to follow the relocation procedure, set forth in La.R.S. 9:355.1 — .17. The mother appeals, seeking to be reinstated as domiciliary parent of the seven year old female child. For the reasons discussed herein, we reverse in part and affirm in part the judgment of the trial court and remand for a new trial.

FACTS & PROCEDURAL HISTORY

Appellee Kenneth Martin (hereinafter “Martin”) filed for divorce from appellant Beverly Martin, now Beverly Woods (hereinafter “Woods”) on August 13, 2009. Thereafter, on September 2, 2009, the trial court issued an interim judgment ordering joint custody of their minor child, Austin Elise Martin (hereinafter “Austin”). The interim judgment assigned neither parent as custodial parent, with Martin being entitled to visitation every other weekend and one evening per week and any other times agreed upon between the parties. That judgment remained in effect until the trial court issued a divorce judgment and custody decree on August 9, 2010, which designated Woods as the primary custodial parent subject to visitation in favor of Martin as set forth in the court’s joint custody implementation plan. The plan generally provided that Martin was entitled to visitation on alternating weekends, alternating holidays, and for five weeks during the summer.

Woods sent a letter to Martin, postmarked December 3, 2010, notifying him of her intent to relocate to Covington, Louisiana on January 1, 2011. Afterwards, on December 28, 2010, Martin filed an objection to the relocation of Austin and a rule for contempt and to modify custody. After trial on the merits, which was held 12on May 16, 2011, the trial court found Woods in contempt of court for violating the joint custody implementation plan by having an overnight guest of the opposite sex to whom she was not married, failing to provide school records and extra-curricular schedules to Martin, and failing to comply with court ordered visitation. As a result, she was ordered to pay $200.00 plus court costs and $400.00 in attorney fees. Further, the court found Woods in violation of the relocation statutes, L.a. R.S. 9:355.1-17, and ordered that Austin be returned to Vernon Parish by June 4, 2011. Finally, it was ordered that the previous custody arrangement be modified to name Martin the primary custodial parent, subject to Woods’s visitation pursuant to the court’s joint custody implementation plan. It is from this judgment that Woods appeals. For the following reasons, we reverse in part and affirm in part the decision of the trial court and remand for a new trial consistent herewith.

ASSIGNMENTS OF ERROR

1. Whether the trial court abused its discretion in modifying custody, thereby stripping appellant Woods of her primary custodial parent status and naming appellee Martin as the primary custodial parent.

2. Whether the trial court erred in denying Woods’s motion for a new trial.

LAW AND ANALYSIS

In her first assignment of error, Woods asserts that the trial court erred by removing her status as primary custodial, or domiciliary, parent, and assigning that status to Martin. We find merit in this contention.

“A trial court’s determination regarding child custody is to be afforded great deference on appeal and will not be disturbed absent a clear abuse of discretion.” Franklin v. Franklin, 99-1738, p. 4 (La.App. 3 Cir. 5/24/00), 763 So.2d 759, 762. A judgment of the trial court will not be disturbed on appeal unless it is clearly wrong or manifestly erroneous, and this assessment must be made in light of the | ^entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989); Mart v. Hill, 505 So.2d 1120 (La.1987). In awarding or modifying custody, the court must do so in regards to the best interest of the child. La. Civ. Code art. 131.

The burden of proof in a modification of custody matter is dependent on the type of custody decree issued by the trial court:

When a trial court has made a considered decree of permanent custody, the party seeking to modify the decree bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody, or of proving by clear and convincing evidence that any harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Wilson v. Wilson, 30,445 (La.App. 2 Cir. 4/9/98), 714 So.2d 35. A considered decree is one for which evidence as to parental fitness to exercise custody is received by the court. Evans v. Terrell, 27,615 (La.App. [2d Cir.] 2/6/95 [12/6/95]), 665 So.2d 648, writ denied, 96-0387 (La.5/3/96), 672 So.2d 695. By contrast, a judgment with a custody plan that was entered by default, was not contested!,] or was merely entered by consent of the parties is not a considered decree. Barnes v. Cason, 25,808 (La.App. 2 Cir. 5/4/94), 637 So.2d 607, writ denied, 94-1325 (La.9/2/94), 643 So.2d 149.
Ji.---
Where the Bergeron burden is inapplicable, the party seeking to modify the custody arrangement need only prove a change in circumstances since the original decree and prove that the new custody arrangement would be in the best interest of the child. Wilson, supra; Barnes, supra.

Schuchmann v. Schuchmann, 00-094, p. 8 (La.App. 3 Cir. 6/1/00), 768 So.2d 614, 616 (quoting Roberie v. Roberie, 33,168, p. 3 (La.App. 2 Cir. 12/8/99), 749 So.2d 849, 852) (emphasis added). In the instant case, the trial court correctly acknowledged that the. June 21, 2010 stipulated custody decree was a consent decree. Therefore, the strict standards of Berger-on do not apply.

We now turn to the procedures for relocating a child whose custody is shared. The first step in the relocation process is notification to the non-custodial parent. Before relocating the child, the custodial parent must seek judicial authorization or consent of the non-custodial parent:

A parent entitled to primary custody of a child shall notify the other parent of a proposed relocation of the child’s principal residence as required by R.S. 9:355.4, but before relocation shall obtain either court authorization to relocate, after a contradictory hearing, or the written consent of the other parent prior to any relocation.

La. R.S. 9:355.3(A).

The particularities of the notification requirement are listed in La. R.S. 9:355.4:

A.Notice of a proposed relocation of the principal residence of a child shall be given by registered or certified mail, return receipt requested, to the last known address of the parent no later than either:
(1)The sixtieth day before the date of the intended move or proposed relocation.
(2)The tenth day after the date that the parent knows the information required to be furnished by Subsection B of this Section, if the parent did not know and could not reasonably have known the information in sufficient time to comply with the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child.
B. The following information, if available, shall be included with the notice of intended relocation of the child:
| B(l) The intended new residence, including the specific address, if known.
(2) The mailing address, if not the same.
(3) The home telephone number, if known.
(4) The date of the intended move or proposed relocation.
(5) A brief statement of the specific reasons for the proposed relocation of a child, if applicable.
(6) A proposal for a revised schedule of visitation with the child.
(7) A statement informing the other parent that an objection to the proposed relocation shall be filed within thirty days of receipt of the notice and that the other parent should seek legal advice immediately.
C. A parent required to give notice of a proposed relocation shall have a continuing duty to provide the information required by this Section as that information becomes known.

La. R.S. 9:355.4.

The second step in the relocation process is to seek a court order or consent of the non-custodial parent: “A parent seeking to relocate the principal residence of a child shall not, absent consent, remove the child pending resolution of dispute, or final order of the court, unless the parent obtains a temporary order to do so pursuant to R.S. 9:355.10.” La. R.S. 9:355.5.

Should the primary custodial parent relocate the child prior to obtaining judicial authorization or non-custodial parental consent, the following repercussions may apply:

The court may consider a failure to provide notice of a proposed relocation of a child as:
(1) A factor in making its determination regarding the relocation of a child.
(2) A basis for ordering the return of the child if the relocation has taken place without notice or court authorization.
(3) Sufficient cause to order the parent seeking to relocate the child to pay reasonable expenses and attorney fees incurred by the person objecting to the relocation.

La. R.S. 9:355.6.

In addition, failure to follow the relocation requirements may be grounds for a modification of custody. La. R.S. 9:355.11. The court in Hillman v. Davis explains:

|fiIf a custodial parent gives the appropriate relocation notice, the proposed relocation “shall not constitute a change of circumstances warranting a change of custody.” La.R.S. 9:355.11 (emphasis added). However, if the custodial parent fails to give the required relocation notice, that failure “may constitute a change of circumstances warranting a modification of custody.” Id. (emphasis added).

Hillman v. Davis, 02-0685 p. 8 (La.App. 3 Cir. 12/11/02), 834 So.2d 594, 599 (emphasis added).

In the case sub judice, Woods sent a letter notifying Martin of her intent to relocate Austin thirty days in advance and stated that she would provide Martin of her new address upon arrival. Since La. R.S. 9:355.4 requires a sixty day notice, Woods violated the relocation procedure. Martin filed an objection with the court against the relocation on December 28, 2011, but it is unclear whether Woods received service of this objection. In the meantime, Woods moved herself and Austin to Covington, Louisiana in January 2011 without obtaining consent from Martin or authorization from the trial court thereby violating La. R.S. 9:355.3(A) and La. R.S. 9:355.5. Furthermore, upon Martin’s filing the objection to relocation, the court issued an order requiring Woods to return Austin to Vernon Parish. As is the case with the objection, it is unclear from the record whether Martin was served with this order.

In addition to objecting to the relocation, Martin requested a modification of custody due to the procedure violations Woods committed during the relocation of Austin. The trial court agreed and granted the requested modification. We disagree with Martin and the decision of the trial court. Martin as the party seeking custody modification must show that there has been a change in circumstances since the original custody judgment and that the proposed custody arrangement would be in the best interest of the child. Schuchmann v. Schuchmann, 768 So.2d 614. Furthermore, this court has recognized that, through |7the clear language of La.R.S. 9:355.11, failing to adhere to notice requirements may or may not be grounds for modifying custody. Hillman v. Davis, 834 So.2d 594.

At the time of the hearing, Austin was seven years old, in the first grade, and had resided with her mother her entire life. Woods moved Austin to Covington for a new job with a substantially higher salary than the one in Vernon Parish, and they now live with Woods’s new husband in a home in Mandeville, Louisiana. By contrast, Martin’s home in Vernon Parish was in the foreclosure process at the time of the hearing. Should Martin be designated as the domiciliary parent, he stated that he and Austin may have to live .in relatives’ homes for an unclear amount of time. Moreover, Martin works in the construction and mechanical industry and often works nights and has inconsistent working hours. Due to the young age of the child and the existing familial structure in which the child resides, the evidence indicates that it is in the best interest of the child to continue to primarily reside with Woods. The trial court abused its discretion in removing Woods’s status as domiciliary parent and instating Martin as domiciliary parent.

Another reason for which Martin sought modification of custody is that Woods allegedly was non-compliant with the joint implementation plan originally ordered. Martin alleged that prior to the relocation, Woods neglected to make Austin available for visitation, and that after the relocation, Woods refused to cooperate in transporting Austin half-way between Anacoco, Louisiana, where Martin resides, and Cov-ington, Louisiana. However, Woods testified that Martin received his visitation and exercised that right regularly until she moved to Covington. Woods acknowledged that Martin was unable to exercise his visitation rights after the relocation, but qualified that statement by explaining that she and Martin disagreed frequently about the transportation of Austin between Covington | sand Anacoco. Woods testified that Martin refused to meet her half-way between their locations and sometimes did not contact her on visitation weekends, while Martin testified that Woods flatly refused his visitation requests. These disagreements between Austin’s parents, not unusual in divorce cases, over visitation do not constitute grounds for modification of custody, and the trial court abused its discretion in its judgment removing Woods’s domiciliary parent status.

The final reason for which Martin sought to modify custody is that Woods resided with her new husband for two months prior to their marriage, in violation of the original implantation plan which forbade overnight guests of the opposite sex. The supreme court recently explained how to analyze the moral fitness of parents in light of the best interest of the child standard:

La. [Civ.Code] art. 131 [and La. Civ. Code art. 134] [were] revised in 1993 to provide that the moral fitness of the parents is now a factor to be considered only insofar as it affects the welfare of the child. This “reflects the jurisprudential rule that moral misconduct should be considered only if it has a detrimental effect on the child, not to regulate the moral behavior of the parents.” Rigby, supra at 114.

Griffith v. Latiolais, 10-0754 p. 18 (La.10/19/10), 48 So.3d 1058, 1071 (quoting Kenneth Rigby, 1993 Custody and Child Support Legislation, 55 La.L.Rev. 103,110 (1994)). Here, Martin presents no evidence that Woods’s co-habitation affected the welfare of Austin or that it had a detrimental effect on her, nor does the record support these notions. Woods’s cohabitation, then, does not constitute grounds for custody modification, and the trial court abused its discretion in so finding.

In conclusion, the trial court abused its discretion in removing Woods’s status as domiciliary parent and instating Martin as domiciliary parent. We reverse the decision of the trial court insofar as this aspect of the judgment. We affirm the judgment of the trial court ordering Woods to pay Martin $200.00 plus court costs | nand $400.00 in attorney fees incurred as a re-suit of Martin’s objection to the relocation. See La. R.S. 9:355.6, supra. Finally, we remand this matter for a new trial with the purpose of instituting a new implementation plan in light of Woods’s and Austin’s relocation.

We note that Woods’ second assignment of error was that the trial court erred in denying Woods’s motion for a new trial. However, this issue is pretermitted by our decision as to the first assignment of error. Therefore, Woods’s second assignment of error is moot.

CONCLUSION

The trial court abused its discretion in removing Beverly Woods’s status as domiciliary parent and instating Kenneth Martin as domiciliary parent. We reverse the decision of the trial court insofar as this aspect of the judgment. We affirm the judgment of the trial court ordering Beverly Woods to pay $200.00 plus court costs and $400.00 in attorney fees incurred as a result of Kenneth Martin’s objection to the relocation. Finally, we remand this matter for a new trial with the purpose of instituting a new implementation plan in light of Woods’s and Austin’s relocation. Costs of appeal are assessed to appellee, Kenneth Martin.

REVERSED IN PART, AFFIRMED IN PART, & REMANDED.

PICKETT, J., dissents and assigns reasons.

PICKETT, J„

dissenting.

Iil disagree with the majority’s reversal of the trial court’s change in custody.

When ruling after the hearing on the father’s motions, the trial court assigned oral reasons. Those reasons show the trial court determined the mother was not concerned with and did not comply with the trial court’s orders and custody implementation plan. With regard to the custody implementation plan, the trial court noted that she was uncooperative in some instances, e.g., did not share information concerning their daughter with her ex-husband unless he specifically requested that information, and that she blatantly ignored the provisions of the plan in other respects, e.g., allowed visitors of the opposite sex to stay overnight in the presence of the child. More importantly, the trial court determined the mother did not have the child’s best interest as her main concern. Rather, she was interested in what was best for her. The trial court also determined the child had a support network in Vernon Parish where she thrived before her mother moved. For these reasons and others assigned by the trial court, I do not think the mother showed the trial court’s judgment should be reversed and would affirm the judgment of the trial court.

      . While a court is to consider all relevant factors in evaluating the best interest of the child, the twelve factors listed in the Civil Code are as follows:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.
      La. Civ.Code art. 134.


text:
    Northa Lee HOLMES v. TRIAD HOSPITALITY d/b/a Clarion Hotel.
    No. 11-1486.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 2012.

      Jarvis J. Claiborne, Opelousas, LA, for Plaintiff/Appellant, Northa Lee Holmes.
    Howard B. Gist, III, The Gist Firm, APLC, Alexandria, LA, for Defendant/Ap-pellee, Triad Hospitality d/b/a Clarion Hotel.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

hA guest at a hotel who allegedly suffered an injury while eating at the hotel’s restaurant, appeals the trial court’s judgment sustaining the defendant’s exception of prescription and dismissing her personal injury claim. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Northa Lee Holmes, was a guest at the Clarion Hotel in Alexandria, Louisiana on June 28, 2007. On that date, Plaintiff asserted she fell over an uneven surface while walking in the hotel’s restaurant. Her petition claimed, as a result of her fall, she was severely injured and hospitalized. She suffered torn ligaments in her knee which eventually required arthroscopic surgery.

In her petition, which was filed on June 28, 2008, Plaintiff named Choice Hotels, Inc., in its role as owner and operator of the hotel, as a defendant. Triad Hospitality, who was the actual owner and operator of the hotel, was not named in the initial petition. On July 16, 2008, Choice Hotels filed a peremptory exception of no cause of action, asserting it did not own, operate, maintain, control or otherwise manage the operations of the hotel where the accident occurred.

On August 15, 2008, Plaintiff filed an amended petition wherein “Choice Hotels International d/b/a Clarion Hotel” was substituted for “Clarion Hotel, through its manager, 2716 N. MacArthur Drive, Alexandria, Louisiana.” Service was perfected upon Clarion Hotel on August 26, 2008, with service of the amended petition made upon the hotel manager.

On August 18, 2008, after a hearing on the matter, the trial court granted Choice’s peremptory exception of no cause of action. Choice was dismissed, with prejudice, as an incorrectly named defendant.

Triad Hospitality, noting that the service on its hotel manager was more than | fourteen months after the alleged accident, on October 10, 2008 filed an answer to the amended petition filed by Plaintiff on August 15, 2008. Triad also filed an exception of prescription on the basis the claim against its interest was not timely filed within the one year prescriptive period provided in La.Civ.Code art. 3492. Triad further contended the amended petition filed more than a year after the accident did not relate back under La.Code Civ.P. art. 1153 to the original filing against “Choice Hotels” who is not a responsible party.

After a hearing, the trial court granted Triad’s exception of prescription and dismissed Plaintiffs suit. The trial court found the petition appeared on its face to be prescribed, thus, the burden shifted to Plaintiff to prove a suspension or interruption of prescription. The trial court found there were no allegations of fact to support a finding that Choice and Triad were joint or solidary obligors so as to interrupt prescription. The trial court also found the amended petition did not relate back under La.Code Civ.P. art. 1153 to the original filing against Choice due to a lack of identity of interest between Triad and Choice.

Plaintiff appealed the trial court’s grant of the exception of prescription, asserting the trial court erred in finding the amended petition did not relate back to the filing of the original petition.

ANALYSIS

Louisiana Civil Code Article 3492 states in part: “Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” The law is clear that statutes pertaining to prescription are strictly construed against prescription in favor of the obligation sought to be extinguished. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261. When a trial court has heard evidence pertaining to an exception of prescription, we review those findings of fact pursuant to the manifest error | ..¡standard. Id.; Williams v. Pioneer Fishing & Rental Tools, Inc., 06-1049 (La.App. 8 Cir. 12/20/06), 945 So.2d 936, writ denied, 07-107 (La.3/16/07), 952 So.2d 697.

Regarding amended pleadings, La. Code Civ.P. art. 1153 provides that when the action asserted in the amended petition arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original petition. The law allows for new plaintiffs and defendants to be added by amended pleadings if the applicable criteria are met. Giroir v. South Louisiana Med. Ctr., 475 So.2d 1040 (La.1985); Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983). The supreme court in Ray, 434 So.2d 1083, 1087 (La.1983), established the following criteria for determining whether article 1153 allows an amendment which changes the identity of the party defendant to relate back to the original petition:

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

“The doctrine of relation back of amended pleadings should be liberally applied, particularly in the absence of prejudice.” Cohen v. Brookshire Bros. Inc., 01-1159 (La.App. 3 Cir. 6/5/02), 819 So.2d 429, 433, writ denied, 02-1767 (La.10/14/02), 827 So.2d 423, citing Giron v. Housing Auth. of Opelousas, 393 So.2d 1267 (La.1981) and Strouse v. M & M Properties, 32,792 4(La.App. 2 Cir. 3/3/00), 753 So.2d 434. Where there is some factual eonnexity between the original and amended assertions, together with some identity of interest between the original and the additional or supplemental parties, amendment should be allowed. Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980).

Applying the four-part test set forth above, we find merit to Plaintiffs argument that the amended petition relates back to the original filing. First, Plaintiffs amended claim against Triad arose out of the June 23, 2007 accident for which she sought redress in the original, timely filed petition. Thus, the first criteria is met.

The supreme court in Findley v. City of Baton Rouge, 570 So.2d 1168, 1170 (La.1990) discussed the second Ray criteria, stating as follows:

The gravamen of the second criteria is prevention of prejudice to the defendant in preparing and conducting its defense. A fundamental purpose of prescriptive statutes is to protect a defendant from stale claims and from the loss or non-preservation of relevant proof. Prescriptive statutes seek to prevent prejudice to a defendant either by a delay in notification of the claim (the prejudice usually being the deprivation of an opportunity to perform a timely investigation of the claim) or by the loss of documents or witnesses which the defendant would have gathered or preserved if timely notified. Tate, Amendment of Pleadings in Louisiana, 43 Tulane Law Review 211 (1969). While designed to protect a defendant against prejudice from lack of notification of a claim within the period of limitation, prescriptive statutes are not designed to protect a defendant against non-prejudicial pleading mistakes that his opponent makes in filing the claim within the period. Allstate Insurance Co. v. Theriot, 376 So.2d 950 (La.1979); Giroir v. South Louisiana Medical Center, 475 So.2d 1040 (La.1985).

As Plaintiff notes, no prejudice will be incurred by Triad in its ability to perform an investigation of the claim. Triad had actual notice of the incident on the date it occurred, as its employees were witnesses to Plaintiffs fall. Donna Bibby, the Director of Sales and Marketing of the hotel, sent Plaintiff a letter dated August 8, 2007, acknowledging an incident did occur and denying an accident occurred. |sSuch a letter clearly indicates the hotel had knowledge of the accident and performed at least a perfunctory investigation of the incident. The court in Findley specifically noted that “prescriptive statutes are not designed to protect a defendant against non-prejudicial pleading mistakes that his opponent makes in filing the claim within the period.” Id. In the present case, we do not find any essential protective purpose of the prescriptive statute is violated by permitting relation back.

As to the third criteria, Plaintiff notes that Louisiana distinguishes between adding a new party and substituting a party for the original defendant. We are convinced Triad should have known, but for Plaintiffs’ mistake in suing “Choice Hotels International, Inc. d/b/a Clarion Hotel” the action would have been brought against Triad.

Lastly, we find the trial court erred in finding Plaintiff did not satisfy the fourth prong of the Ray test. The original petition clearly establishes plaintiffs intended to sue the owner-operator of the Clarion Hotel located at 2716 N. MacArthur Drive, in Alexandria, Louisiana. There was only one such hotel at that location. We note the letter Plaintiff received from the hotel’s Director of Sales and Marketing denying liability for the incident, had on it a letterhead reading “Clarion Hotels by Choice Hotels.” Plaintiff also points out that the website for Choice Hotels International, Inc. indicates that the Clarion Hotel at issue, now an Econo Lodge Inn & Suites, is a Choice Hotels International, Inc. property. This certainly lends credence to Plaintiffs argument that it was not unreasonable to initially misname “Choice Hotels International, Inc. d/b/a Clarion Hotel” as the defendant. Despite the misnomer, Plaintiff made it clear she intended to pursue a claim against the Clarion Hotel located at 2716 N. MacArthur Drive, in Alexandria, Louisiana. These facts militate in favor of our finding that the |fiamendment in this case was made to correct a misnomer rather than adding a wholly new and unrelated defendant. Ray, 434 So.2d 1083; See also Cohen v. Brookshire Bros. Inc., 819 So.2d 429; Sonnier v. Norwood Constr. Co., 617 So.2d 580 (La.App. 3 Cir.1993); Sutton v. Short Stop Hamburgers, 31,841 (La.App. 2 Cir. 5/5/99), 737 So.2d 157. Thus, we conclude, considering the special facts of this case, the fourth criterion of Ray which requires that the substituted defendant not be a wholly new or unrelated defendant is satisfied.

The jurisprudence is consistent that prescriptive statutes are to be strictly construed in favor of maintaining rather than barring actions. Taylor v. Liberty Mutual Ins. Co., 579 So.2d 443 (La.1991); Ray, 434 So.2d 1083; Foster v. Breaux, 263 La. 1112, 270 So.2d 526 (1972). Consistent with that, “La.Code Civ.P. art. 1153 is to be applied liberally and without restriction by technical rules.” Masson v. Champion Ins. Co., 591 So.2d 399, 402 (La.App. 4 Cir.1991), citing Spencer-Wallington v. Service Merchandise, Inc., 562 So.2d 1060 (La.App. 1st Cir.1990), writ denied, 567 So.2d 109 (La.1990). Therefore, we find the amended petition relates back under La.Code Civ.P. art. 1153 to the date of filing of the original petition. Accordingly, the trial court’s judgment to the contrary dismissing Plaintiffs lawsuit with prejudice is reversed. The case is remanded to the district court for further proceedings. All costs of this appeal are assessed against defendant-appellee, Triad Hospitality d/b/a Clarion Hotel.

REVERSED AND REMANDED.


author: KEATY, Judge.

text:
    Wanda TURNER v. Gumarco C. ESCOBEDO and Imperial Fire & Casualty Insurance Company.
    No. 12-72.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 2012.

      Byron A. Richie, Paul D. Oberle, Jr., Richie, Richie & Oberle, L.L.P., Shreveport, LA, for Defendant/Appellant, Imperial Fire and Casualty Ins. Co.
    Patrick Damas Moresi, The Moresi Firm, Abbeville, LA, for Plaintiff/Appellee, Wanda Turner.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

bin this personal injury case, the trial court awarded $8,500.00 in general damages and $1,800.00 in special damages to a plaintiff who allegedly injured her neck and back and began suffering from migraine headaches as a result of a motor vehicle accident. After carefully reviewing the record, we affirm the trial court’s judgment in part, reverse the judgment in part, and render judgment.

Facts and Procedural History

Plaintiff, Wanda Turner, a forty-seven-year-old female, was involved in a motor vehicle accident on September 4, 2010. Liability was not disputed. In this accident, Ms. Turner’s airbag did not deploy, and she did not allege damages to her vehicle. At the time of this accident, Ms. Turner was being treated for high blood pressure, general anxiety, major depression, and chronic back pain, among other things. She was taking four Lortab pills each day in addition to a myriad of other medication.

Approximately seven weeks later on October 28, 2010, Ms. Turner was involved in a second accident in which she rear-ended a trailer. This at-fault accident caused her airbags to deploy and knocked her unconscious. She was brought to the emergency room by ambulance, where she complained of neck and back pain but, ultimately, disconnected herself from the monitors and stretcher and abandoned the emergency room because, as she testified, she believed the hospital is “an animal hospital.”

On December 4, 2010, Ms. Turner filed suit against the owner of the vehicle involved in the September 4 accident and his insurer, Imperial Fire and Casualty Insurance Company, which is the appellant in this appeal, alleging that she injured her neck and back and began suffering from migraines as a result of the September 4 accident.

12At trial, the only evidence presented was a certified copy of the insurance policy, certified medical records, a few medical bills, and Ms. Turner’s self-serving testimony. Ms. Turner testified that she had only been involved in a 2007 work-related accident and the two 2010 accidents. On cross-examination, however, Ms. Turner admitted that she was involved in four additional accidents which took place in 1995, 2001, 2003, and 2006. Her testimony at trial that her neck pain lasted several months conflicted with her deposition testimony in which she said the neck pain only lasted five weeks. When questioned on cross-examination about this difference, she blamed it on her depression, saying, “I was in a depression. I couldn’t tell you if it was Monday, Friday, five weeks, six months.” Ms. Turner was being treated with medication for depression when the accident occurred, thereafter, and at the time of trial. Ms. Turner also credits all of her injuries to the first accident, in which the impact of the collision was not strong enough to trigger the airbag, rather than the second accident in which the airbag deployed and Ms. Turner was brought to the emergency room on a stretcher after losing consciousness. When questioned about whether the second accident made the pain worse, she would only admit that it “irritated” the pain from the September 4 accident and denied that the second accident caused any of the pain from which she was allegedly suffering. Ms. Turner also admitted at trial that back surgery and physical therapy had been recommended prior to the September 4 accident, and she had not engaged in either.

Ms. Turner’s testimony is inconsistent with the certified medical records admitted into evidence. Although she claims her pain from the accident was so |sbad that she could not walk without help, Ms. Turner did not see a single doctor specifically for her accident-related injuries. She was well enough to drive a car by October 28. In the time between the September 4 and October 28 accidents, Ms. Turner saw Dr. Edgardo Concepcion once on September 9, 2010, and Dr. Howard Alleman once on October 13, 2010. She testified that both of these visits had been scheduled prior to the accident. Her medical records are void of any mention of back pain prior to the October 28 accident. Her alleged neck pain is referenced in a single notation in Dr. Alleman’s records. In that same entry, he notes that she was complaining of headaches. There is not a scintilla of evidence that Ms. Turner was suffering from migraines, save for her own word choice. Although she testified that she was suffering from migraines several times a week and the pain was a ten on a scale of one to ten, she never saw a doctor for or was diagnosed as having migraines. When questioned about her migraines on cross-examination by Imperial Fire’s attorney, she retorted, “I want to jump this man!”

Ms. Turner’s records indicate that she did not tell a physician about the September 4 accident until October 13, and that she did not mention the October 28 accident to either of her doctors. Her records indicate that she did not mention back pain to any doctor until after the October 28 accident. At that time, Dr. Alleman ordered an MRI, but noted that he did not think the September 4 accident caused the back pain. The MRI was performed on November 8, 2010, and did not present evidence of any additional trauma to her back. Ms. Turner’s records are also void of any reference to her needing assistance to enter or exit the office or examination room or being incapable of moving her extremities. Although Ms. Turner testified that her physician’s records are better than her memory and that she would defer to Dr. Alleman’s records, saying “whatever he says is the honest to God’s truth, yes,” she blamed any inconsistency between her | ¿testimony and her medical records on the doctors, claiming they “forgot” to write down things she told them, or they wrote down incorrect information.

Despite the many inconsistencies in her testimony and the minimal references to the complained-of illness in her medical records, the trial court found in favor of Ms. Turner and awarded her a total of $8,500.00 in general damages ($3,500.00 for the migraines, $3,000.00 for exacerbation of her back condition, and $2,000.00 for her neck pain), and $1,800.00 in special damages for past medical treatment related to the September 4 accident.

Imperial Fire appealed, asserting that the trial court erred in “ignoring the medical evidence, [or] lack thereof, and accepting without question the unsupported and uncorroborated testimony of the plaintiff with respect to her alleged injuries,” and the trial court erred in “crediting plaintiff with any credibility for testimony provided in support of her claims of injury.” Ms. Turner answered the appeal seeking an increase in the damages awarded. For the following reason we affirm in part, reverse in part, and render.

Discussion

A. General Damages

Appellate review of a trial court’s findings in a medical malpractice action is limited. It is well settled that a court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong, and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). In reviewing a factfinder’s factual conclusions, an appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong. Kaiser v. Hardin, 06-2092 (La.4/11/07), 953 So.2d 802, 810; Guillory v. Insurance Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029, 1031. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, if a witness’s story is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit |5the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Rosell, supra at 845.

Johnson v. Morehouse General Hosp., 10-387, pp. 11-12 (La.5/10/11), 63 So.3d 87, 96.

The trial court found Ms. Turner to be a credible witness. Accordingly, we must afford great deference to the trial court’s determination that the testimony she provided was true.

After carefully reviewing the record, we find that Ms. Turner did mention her neck pain and headaches to Dr. Alte-rnan prior to her second accident. In his notes, she attributes the pain to the September 4 accident. Although detail about the type and severity of neck pain and headaches Ms. Turner suffered from are not in the record, it is reasonable to conclude that these two injuries resulted from the September 4 accident. Accordingly, the awards for these injuries ($2,000.00 for the neck pain and $3,500.00 for the migraines) are affirmed.

The record does not support an award for back pain. Prior to the September 4 accident, Ms. Turner was being treated for chronic back pain. At the time of the accident, she was taking four Lortab pills per day. After the September 4 accident, she made no mention of back pain to either of her treating physicians, even though she did ultimately mention neck pain and headaches to one of them several weeks after the accident. The first mention of back pain after the September 4 accident was on the date of the second, more severe accident. Ms. Turner told the medical staff in the emergency room that she was experiencing neck and back pain and then abandoned the emergency room when she felt she was not receiving adequate care. Several days later, on November 4, 2010, Ms. Turner complained of back pain to Dr. Alleman. She did not mention the second accident to him. Dr. Alleman ordered an MRI, the results of which “indicate! ] the presence |6of multiple relatively minor deviations from normal ... which I doubt are related to recent trauma.”

The record is clear that Ms. Turner was being treated for pre-existing back pain at the time of the accident and did not mention an increase in her back pain to Dr. Alleman when she complained of neck pain and headaches. It is clear that on the date of the second accident, Ms. Turner complained of neck and back pain and that she complained of back pain to Dr. Alleman a few days later. Accordingly, we find that the trial court was manifestly erroneous in finding that Ms. Turner suffered from back pain as a result of the September 4 accident. We reverse the portion of the judgment that awarded general damages in the amount of $3,000.00 to Ms. Turner for her back pain.

B. Special Damages

In addition to the general damages awarded, the trial court also awarded Ms. Turner $1,800.00 for past medical treatment. “‘A Plaintiff may ordinarily recover reasonable medical expenses, past and future, which he incurs as a result of an injury.’ ” Revel v. Snow, 95-462, p. 10 (La.App. 3 Cir. 11/2/95), 664 So.2d 655, 660, writ denied, 95-2820 (La.2/2/96), 666 So.2d 1084 (quoting White v. Longanecker, 93-1122, p. 9 (La.App. 1 Cir. 5/23/94), 637 So.2d 1213, 1218, writ denied, 94-1704 (La.10/7/94), 644 So.2d 640). At trial, Ms. Turner admitted into evidence a receipt dated November 8, 2010, for $500.00 to Acadiana Physician Corporation, a receipt dated October 13, 2010, for $60.00 to Dr. Alleman, a collection services letter dated August 28, 2011, indicating that a total of $906.00 was due to Acadiana Radiology Group and Abbeville Diagnostic Center for services rendered on November 8, 2010, and a pharmacy receipt dated November 4, |72010, for $10.02 worth of medication. Ms. Turner testified that the $500.00 receipt was for the MRI, that the $60.00 receipt was for a visit to Dr. Alleman, and the $10.02 was for medication. She further testified that the $906.00 was for X-rays to see if anything was broken. We note that Dr. Alleman’s records only reference sending her for an MRI, not X-rays, and that Dr. Victor Gunderson with Abbe-ville Diagnostic Center is the physician who reviewed Ms. Turner’s MRI. Abbe-ville Diagnostic Center is one of the entities seeking payment through collection services. Regardless, the testing was performed after the second accident. Although the total of these bills is $1,476.02, the trial court awarded Ms. Turner $1,800.00 for past medical expenses.

“A tortfeasor is liable for the full amount of medical expenses incurred in treatment of injuries for which he or she is responsible.” Revel, 664 So.2d at 661. The converse must also be true; that is, a tortfeasor should not be liable for medical expenses incurred in treatment of injuries for which he or she is not responsible. Having found that the record does not contain evidence that Ms. Turner’s back was injured in the September 4 accident, we must reduce the award of past medical expenses to exclude all back-related treatment. After reviewing the evidence that was properly admitted and authenticated for past medical expenses, we find that Ms. Turner is only entitled to reimbursement for the October 13 visit to Dr. Alle-man. Accordingly, we reverse the judgment insofar as it awarded $1,800.00 to Ms. Turner for past medical treatment and render judgment in the amount of $60.00, which reflects the evidence submitted by Ms. Turner for medical treatment in connection with the September 4 accident.

Conclusion

For the foregoing reasons, we find that the trial court was not manifestly erroneous in finding that Ms. Turner injured her neck and suffered from headaches Ras a result of the September 4 accident. We affirm its awards of $2,000.00 and $3,500.00 respectively for those injuries. We find that the trial court was manifestly erroneous in finding that Ms. Turner injured her back as a result of the September 4 accident. We reverse that finding and the damages award associated therewith in the amount of $3,000.00. We further find that although Ms. Turner submitted into evidence receipts totaling $1,476.02 for medical treatment, nearly all of those bills and receipts were incurred after the second accident on October 28, 2010, and in connection with her back pain. Accordingly we reverse the trial court’s grant of $1,800.00 for past medical treatment and render judgment in favor of Ms. Turner for $60.00, reflecting the amount paid for her visit to Dr. Alleman on October 13. We deny Ms. Turner’s request for additional damages on appeal. Half of the costs of this appeal are assessed against Ms. Turner, and half are assessed against Imperial Fire.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . A fifth additional accident took place in 2009 and is reflected in her medical records. When questioned about the 2009 accident, she denied having been in that accident, saying it was her mother who was involved, and that Dr. Alleman wrote it in the wrong patient’s chart. Dr. Alleman’s records indicate that Turner suffered from a neck injury as a result of the 2009 accident.

      . We note that the transcript reflects that Exhibit P3 consisted of two receipts for Dr. Alleman, from October 13 and November 4, 2010; however, the record reflects that only one receipt was actually admitted into evidence.