author:
      SUSAN M. CHEHARDY, Judge.
      WICKER, J.,

text:
    STATE of Louisiana v. Barry L. DAVIS.
    Nos. 11-KA-137, 09-KH-991.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Rehearing Denied Aug. 6, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Holli A. Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Appellant, Barry L. Davis.
    Barry L. Davis, In Proper Person, Angola, LA.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|2In his second appeal, Mr. Davis challenges his habitual offender sentence. For the reasons that follow, we grant defendant’s writ of review, deny relief, and affirm his habitual offender sentence.

Facts and Procedural History

Because Mr. Davis only challenges his habitual offender resentencing, a very brief overview of the facts is provided. On December 18, 1993, the police were notified of an unauthorized entry into Dona’s Office Lounge, a bar on the Westbank Expressway. When the officers arrived at the scene, they observed Barry Davis, defendant herein, exiting the front door of the bar. The officers testified that the defendant told them that he was not an employee of the bar, but that he was there to rob the bar. Both officers testified that the front door to the bar had been pried open, and they found a crow bar inside the lounge.

On January 12, 1994, the Jefferson Parish District Attorney filed a bill of information charging defendant, Barry L. Davis, with simple burglary, in violation of La. R.S. 14:62. On March 23, 1994, a six-person jury unanimously found the | defendant guilty as charged. That same day, the State filed a habitual offender bill of information alleging that defendant was a quadruple felony offender.

On April 12, 1995, more than one year after his conviction, the trial court sentenced defendant on the underlying charge to twelve years imprisonment at hard labor with credit for time served. That same day, defendant denied the allegations contained in the habitual offender bill of information. On April 18, 1995, the trial judge heard and denied defendant’s pro se and counseled Motions for New Trial and Post-Verdict Judgment of Acquittal.

On June 18, 1996, which was more than one year after his sentencing on the underlying felony, the trial judge held a hearing on the habitual offender bill of information. At the conclusion of the hearing, the trial judge found defendant to be a quadruple felony offender and imposed an enhanced sentence of ninety (90) years imprisonment at hard labor. That same day, defendant filed his notice of appeal regarding his underlying conviction and habitual offender adjudication, which was granted.

On September 25, 1996, the record in defendant’s first appeal was lodged with this Court. On appeal, defendant challenged his ninety-year enhanced sentence on the basis that the trial court erred in considering two previous guilty pleas as separate predicate offenses. State v. Davis, 96-KA-796 (La.App. 5 Cir. 4/29/97) (not designated for publication).

On April 29, 1997, this Court affirmed defendant’s conviction and habitual offender adjudication but remanded “for resen-tencing only,” due to sentencing errors made by the trial court. Specifically, in its ruling, this Court found that there were four noted errors: “(1) the trial judge failed to vacate the 12-year enhanced sentenced imposed on April 12, 1995 before sentencing Davis as a habitual offender; (2) the trial judge failed to rule on Davis’ motion for new trial before ^sentencing; (3) Davis was not fully advised of the contents of La.C.Cr.P. art. 930.8(C); and (4) Davis was not given credit for time served.” Id.

The appellate record before this Court does not reflect any filings from June 1997 until February 28, 2003. On that date, the defendant filed an application for supervisory review, arguing that the trial court should be divested of jurisdiction to resen-tence him due to the “unreasonable and prejudicial” six-year delay from this Court’s remand order. On March 11, 2003, this Court granted defendant’s writ application and ordered the lower court to “take any necessary sentencing action.”

On March 18, 2003, the trial court, pursuant to this Court’s Order, reviewed the district court record, noted that “no application for post-conviction relief had been filed,” and denied defendant’s “motion.” On July 17, 2003, the defendant filed another writ application with this Court seeking mandamus on the basis that the district court had failed to take any action. On August 19, 2003, this Court denied defendant’s writ application after considering the trial court’s March 18, 2003 ruling.

On December 2, 2003, defendant again filed a writ application with this Court seeking to divest the district court of jurisdiction to resentence. On December 5, 2003, this Court denied defendant’s writ application, finding “the district court ruling of March 18, 2003 did not re-sentence [sic] relator. Accordingly, relator’s application for review of his re-sentencing[sic] is denied.”

On November 19, 2009, defendant filed his fourth application for supervisory review with this Court. In it, defendant sought “immediate release from custody because the trial court failed to resentence him as a habitual offender | ¿before completion of his original sentence on the underlying conviction.” In the interest of justice, we have consolidated that filing with defendant’s appeal herein.

Thereafter, on September 17, 2010, the Jefferson Parish District Attorney’s Office filed a writ of habeas corpus to have the defendant brought before the trial court for resentencing on the habitual offender bill of information as ordered by this Court on April 29, 1997. On October 18, 2010, the trial court found that defendant was a fourth felony offender, vacated his underlying sentence of 12 years, and imposed an enhanced sentence of 35 years at hard labor, without the benefit of probation or suspension of sentence, and with credit for all time served. The trial court further ordered that defendant’s sentence be served concurrently to any sentence defendant may currently be serving, or may have been serving at the time of the original habitual bill sentencing.

On November 4, 2010, defendant filed a pro se Motion for Reconsideration of Sentence, contesting the amount of time that had elapsed before the trial court re-sentenced him after this Court’s remand order. The defendant also filed a Motion for Appeal. The trial court denied defendant’s Motion to Reconsider Sentence, and granted defendant’s Motion for Appeal on November 19, 2010.

On appeal, defendant raises one counseled and two pro se assignments of error. Defendant raises the same claim in his counseled assignment and his second pro se assignment, which is that the trial court failed to rule on defendant’s motion for new trial as ordered by this Court before resentencing defendant. In response, the State correctly avers that all of defendant’s counseled and pro se Motions for New Trial were ruled upon before defendant was resentenced as a habitual | r,offender. We agree. The record before us reflects that, before imposing defendant’s enhanced sentence in 2010, the trial court ruled on each and every Motion for New Trial, counseled and pro se, filed by defendant. These assignments of error are without merit.

Next, we address defendant’s contention that his enhanced sentence should be vacated because the trial court had no authority to resentence him. Defendant specifically argues that the trial judge was divested of its jurisdiction to resentence defendant once defendant had served his original sentence of twelve years. Defendant contends that the sentencing delay in this case is unreasonable so his sentence should be vacated.

Habitual offender proceedings under La. R.S. 15:529.1 need not be completed prior to the time the defendant satisfies the original sentence imposed by the trial court. State v. Muhammad, 03-2991 (La.5/25/04), 875 So.2d 45, 54. Although La. R.S. 15:529.1 does not specify a time within which a habitual offender bill of information must be filed, the habitual offender bill must still be filed within a reasonable time. Id.

Further, La.C.Cr.P. art. 874 provides that a sentence shall be imposed without unreasonable delay. The Louisiana Supreme Court has held that a case-by-case evaluation is warranted to determine whether a habitual offender proceeding has been promptly concluded. Muhammad, 875 So.2d at 55. In evaluating whether delays in concluding the proceeding are unexplained or extraordinarily long, courts may look to relevant speedy trial considerations, including the length of the delay, the reasons for the delay, the accused’s assertion 17of her right to speedy trial, and the prejudice to the accused resulting from the delay. Id. While these factors are neither definitive nor disposi-tive in the context of a habitual offender proceeding, they are instructive in determining whether the habitual offender hearing is held and the proceeding completed within a reasonable time. Id. “Abusive or vindictive delay should not be tolerated.” Id.

In this case, defendant was convicted of simple burglary on March 23, 1994. On the same date, the State filed a habitual offender bill of information. Thus, there is no question that the State did not delay in filing the habitual offender bill of information in this case. In fact, defendant had notice on the day that he was convicted of the underlying felony that the State sought to prove that he had prior felony convictions, which would dictate an enhanced penalty for the underlying felony.

More than one year later, defendant was sentenced to twelve years at hard labor on the underlying charge on April 12, 1995. More than one year after that, the trial court, after a hearing on June 16, 1996, adjudicated defendant to be a fourth felony offender, and imposed an enhanced sentence of ninety years at hard labor. On April 29, 1997, this Court affirmed defendant’s habitual offender adjudication but remanding “for resentencing only.”

In 2008, defendant began filing applications for post conviction relief in the district court and applications for supervisory-review in this Court, alleging that the trial court had failed to comply with this Court’s 1997 Order to resentence him. In response to one of those writ applications to this Court, we ordered the trial court to “take any necessary sentencing action.”

On October 18, 2010, thirteen years after this Court vacated defendant’s original enhanced sentence and remanded for re-sentencing, the trial court vacated | sdefendant’s underlying twelve-year sentence and imposed an enhanced sentence of thirty-five years. On November 4, 2010, defendant filed a pro se Motion for Reconsideration of Sentence, contesting the amount of time that elapsed before the court resentenced him. On November 19, 2010, the trial court denied defendant’s Motion, finding that defendant was not entitled to the relief sought.

Here, the defendant in this case knew on the day that he was convicted that the State sought to prove that he had previous felonies to support an enhanced penalty. Further, defendant was adjudicated a fourth felony offender in 1996, which was affirmed by this Court in 1997. His habitual offender adjudication was final in 1997; thus, he was aware that he would be sentenced as a fourth felony offender no later than 1997. Further, defendant has been continually incarcerated since his arrest on this offense in 1993.

Finally, it is accurate that defendant had completed his twelve-year underlying sentence when he was resentenced. As a fourth felony offender, however, defendant was subject to a mandatory minimum sentence of 20 years. Defendant has failed to show how he was prejudiced by the delay in resentencing.

Moreover, the delay in the habitual offender resentencing did not violate defendant’s right to a speedy trial. The record before us indicates that the delay was principally caused by lack of movement of defendant’s case in the district court, and not by any abusive action by the State. Based on the foregoing, this assignment of error lacks merit.

Errors Patent

| (Although defendant is not entitled to a second error patent review of his underlying conviction and sentence, we have reviewed the record of defendant’s habitual offender resentencing, pursuant to La.C.Cr.P. art. 920. See State v. Taylor, 01-452 (La.App. 5 Cir. 11/14/01), 802 So.2d 779, 783-84, writ denied, 01-3326 (La.1/10/03), 834 So.2d 426. Our review reveals no errors patent in this case.

WRIT GRANTED, RELIEF DENIED; SENTENCE AFFIRMED

WICKER, J., dissents and assigns reasons.

WICKER, J.,

dissents and assigns reasons.

|TI respectfully dissent for the reasons assigned.

Mr. Davis was adjudicated a fourth felony offender on June 18, 1996, and sentenced to 90 years imprisonment. This Court affirmed the multiple offender conviction and remanded the case for resen-tencing only. Thirteen years later, the trial court acted on this Court’s resentenc-ing order and resentenced Mr. Davis to 35 years imprisonment. By that time, however, Mr. Davis had already completed the sentence on the underlying conviction.

While there is no bright-line rule to determine when the imposition of a sentence has been unreasonably delayed, principles of due process prohibit inordinate delays in post-conviction imposition of sentence when the delay causes prejudice to the defendant. State v. Duncan, 396 So.2d 297, 299 (La.1981).

In my view, thirteen years constitutes an unreasonable length of time to hold a defendant in incarceration without imposition of sentence. Even more bothersome is the fact that once Mr. Davis completed the twelve-year sentence on the underlying offense, he remained incarcerated for one year before he was sentenced on the multiple-bill. Such a delay, without any justification, is unreasonable. The sanction for unreasonable delay in sentencing is divestiture of the trial court’s sentencing jurisdiction. City of Baton Rouge v. Bourgeois, 380 So.2d 63, 64 (La.1980) (per curiam). Thus, |⅞⅛ my view, the trial court lacked authority to sentence Mr. Davis on October 18, 2010, and he should, therefore, be released from the custody of the Department of Corrections.

      . State v. Davis, 03-264 (La.App. 5 Cir. 3/11/03) (unpublished writ disposition).

      . State v. Davis, 03-873 (La.App. 5 Cir. 8/19/03) (unpublished writ disposition).

      . State v. Davis, 03-1390 (La.App. 5 Cir. 12/05/03) (unpublished writ disposition).

      . State v. Davis, 09-991.

      .La.C.Cr.P. art. 853 provides, in pertinent part, that “[a] motion for a new trial must be filed and disposed of before sentence.” This Court has held that sentencing' prior to a ruling on a motion for new trial must be set aside and the case remanded for a ruling on the motions and then re-sentencing. State v. Wilson, 96-251 (La.App. 5 Cir. 10/1/96), 683 So.2d 775, writ denied, 754 So.2d 935 (La.2/11/00).

      . Defendant raised this error in his pro se writ application and in his first pro se assignment of error on appeal. This claim is properly raised in a supervisory writ application. La. C.Cr.P. art. 874("[i]f a defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the appellate court.”) In this case, we will address this claim because defendant properly raised this claim in his supervisory writ application, which has been consolidated with the instant appeal by order of this Court. Cf. State v. Sims, 09-509 (La.App. 5 Cir. 2/12/10), 33 So.3d 340, 343, writ denied, 10-596 (La.10/8/10), 46 So.3d 1264 ("unreasonable sentencing delay” considered on appeal in the interest of justice and judicial efficiency).

      . State v. Davis, 03-264 (La.App. 5 Cir. 3/11/03)(unpublished writ disposition).

      . At the time of defendant's resentencing on October 18, 2010, defendant had served fifteen years in prison. Having been adjudicated a fourth felony offender, defendant was subject to a mandatory twenty-year sentence under the Habitual Offender Law as it existed at the time defendant committed the underlying offense.
      La. R.S. 15:529.1(A)(1) provided, in pertinent part:
      (4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then,
      (a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Luis P. WILSON, Plaintiff-Appellee v. Danny E. ALLUMS and Angela W. Allums, Defendant-Appellant.
    No. 47,147-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 2012.

      The Pesnell Law Firm, Shreveport, LA, by Billy Ray Pesnell, J. Whitney Pesnell, W. Alan Pesnell, for Appellant.
    Booth Lockard Politz, LeSage & Odom, L.L.C., Shreveport, LA, by Mark W. Odom, for Appellee.
    Before BROWN, GASKINS and DREW, JJ.
   DREW, J.

11 Danny and Angie Allums seek relief from the preliminary injunction enjoining an arbitration proceeding instituted by them against Luis P. Wilson.

We affirm and remand.

FACTS

Danny and Angie Allums entered into a contract with Luis P. Wilson d/b/a Wilson Construction Company to build a log home for them in Benton, Louisiana. The total cost of the project was $226,000. The contract provided that, “All claims and disputes between the Contractor and the Owner arising out or relating to the Contract, or the breach thereof, shall be decided by arbitration^]”

In 2002, a supplier on the project, Ivey Lumber, filed suit in Bossier Parish against Wilson and the Allumses after they failed to pay Ivey Lumber. The Allumses filed an answer and a cross-claim against Wilson on September 3, 2002, without reserving any rights as to arbitration.

On October 3, 2002, Wilson’s attorney, Mark Odom, wrote to Billy Pesnell, the Allumses’ attorney, about setting up a meeting with all the parties to discuss the case issues. In this letter, Odom referred to the arbitration clause in the contract.

On November 18, 2002, the court signed a judgment granting summary judgment in favor of Ivey Lumber. At the end of the following month, Ivey Lumber signed a release of a materialman’s lien and a notice of Us pendens that it had filed in the Bossier Parish mortgage records.

1 ¡.Pesnell wrote to Odom on March 10, 2005, that the Allumses had incurred out-of-pocket expenses because of Wilson’s failure to complete the home to specifications. The Allumses alleged that additional work remained in order to finish the house, and they estimated that it would cost over $59,000 to bring the home to the agreed-upon specifications. Pesnell wrote that unless that amount was received within 10 days, the Allumses would file a demand for arbitration against Wilson.

On December 8, 2006, Odom wrote to Pesnell that since the March 10, 2005, letter acknowledged that arbitration was the means for resolving the dispute, he was going to move to dismiss the cross-claim for abandonment. He also wrote that what claims remained were exclusively covered under the New Home Warranty Act.

On December 11, 2006, Wilson filed an ex parte motion to dismiss for abandonment, asserting that the original demand had been settled and dismissed. The trial court granted the motion and dismissed the Allumses’ cross-claim with prejudice on December 11, 2006. The Allumses were served with notice of the order through Pesnell on December 15, 2006. This dismissal was not appealed.

On January 12, 2007, Odom wrote to Pesnell to acknowledge receipt of a settlement proposal in a January 9, 2007 letter. He wrote that Wilson’s limited income made unacceptable the proposal that he surrender his motorcycle in settlement. Odom wrote that they were not interested in surrendering the motorcycle to resolve a case that they believed was defensible. He suggested that the only way to proceed was for the Allumses |sto pursue their claim through arbitration, although he thought the passage of time and the filing of the cross-claim could be a waiver of their right to seek arbitration and it was now too late for them to file an arbitration claim.

On March 30, 2010, the Allumses submitted a demand for arbitration against Wilson. The matter would be administered under fast track procedures.

On April 28, 2010, Wilson filed a petition for injunctive relief against the Allumses. He asserted that because the cross-claim was dismissed with prejudice, it was res judicata as to the claims raised by the Allumses in arbitration. He additionally asserted that the Allumses had waived any right to arbitration by filing the cross-claim. Wilson argued in the alternative that if res judicata did not apply, then the claims were barred by prescription and/or peremption under the New Home Warranty Act. Wilson concluded by contending that injunctive relief was necessary to prevent irreparable harm. Wilson prayed that the temporary injunction be made permanent.

The Allumses filed exceptions of lack of subject matter jurisdiction and no cause of action. They asserted that the court no longer had subject matter jurisdiction once they initiated arbitration proceedings. They also asserted that Wilson had no cause of action because the contract expressly required that contractual claims and controversies be settled by arbitration, and that Wilson did not allege any facts showing or tending to show any irreparable injury.

|/The trial court granted the preliminary injunction. It did not rule on the exceptions, but ruled that all other pending matters would be set for further argument and consideration on a later date.

The Allumses filed a motion for new trial and/or rehearing, as well as a motion to dissolve the preliminary injunction. The trial court subsequently denied the motions, as well as the earlier exceptions.

The Allumses applied to this court for a supervisory writ, which was remanded for perfection as an appeal. A rehearing of this order was denied.

DISCUSSION

The Allumses argue on appeal that the trial court lacked subject matter jurisdiction to enjoin the pending arbitration proceeding. The Allumses further argue that their exception of no cause of action should have been granted because their claim was to be decided by arbitration, and because Wilson had not alleged any facts showing that he would suffer irreparable injury by participating in arbitration. Lastly, the Allumses attack the issuance of injunctive relief because Wilson failed to show irreparable injury and that he would have a substantial probability of success on the merits with his asserted defense of res judicata, and because the trial court did not require the posting of security.

Exception of Lack of Subject Matter Jurisdiction

The Allumses contend that the trial court lacked subject matter jurisdiction to enjoin the arbitration. Wilson contended in his petition for an injunction that the judgment of dismissal was res judicata to the claim for arbitration, and that the Al-lumses had waived their right to arbitration when | sthey filed the cross-claim. The trial court apparently used the res judica-ta theory as its basis to grant the preliminary injunction.

The party aggrieved by the alleged failure or refusal of another to perform under a written agreement for arbitration may petition any court of record having jurisdiction of the parties, or of the property, for an order directing that the arbitration proceed in the manner provided for in the agreement. La. R.S. 9:4203(A).

Even when a lawsuit seeks to enjoin arbitration rather than compel it, the court’s inquiry under La. R.S. 9:4203 is the same. Willis-Knighton Medical Center v. Southern Builders, Inc., 392 So.2d 505 (La.App. 2d Cir.1980).

A court’s inquiry under La. R.S. 9:4203 is as follows:

R.S. 9:4203 requires a Louisiana court, at the request of an aggrieved party, to order the parties to arbitration in accordance with the terms of their arbitration agreement after the court finds (a) that an arbitration agreement was made and (b) that the opponent failed or refused to comply. These are the only triable issues in a suit to enforce an arbitration agreement.

Standard Co. of New Orleans, Inc. v. Elliott Const. Co., Inc., 363 So.2d 671, 677 (La.1978).

The question regarding whether a party waived its right to arbitrate under the terms of a contract is an issue of procedural arbitrability that should not be decided by the courts, but rather by the arbitrator. Conagra Poultry Co. v. Collingsworth, 30, 155 (La.App.2d Cir.1/21/98), 705 So.2d 1280.

In Standard Company, supra, the supreme court recognized the downside of a court deciding the waiver issue:

jfiBy extending judicial inquiry beyond the validity of the contract containing the arbitration agreement to pre-arbi-tration inquiry of issues of waiver of an arbitration agreement in a valid contract, the court would undercut the benefits of arbitration, which is favored by Louisiana public policy.

Id., 363 So.2d at 674.

Nonetheless, the supreme court went on to resolve the issue of waiver in that ease while recognizing that its action was inconsistent with its statement that waiver should be decided by the arbitrator:

The court is aware that, in one opinion, it holds that (1) waiver of arbitration is an arbitrable issue not to be litigated prior to arbitration; and (2) the State’s contention that the contractor has waived his right to require arbitration is without support in this record. Four reasons suggest the advisability, if not the consistency, of this action. (1) The Court of Appeal found a waiver. (2) The record is before us. (3) Further unnecessary delay while waiver is thrashed out by the arbitrator is avoided. (4) Finally, further review of the question of waiver in this case in the judicial system is obviated.

Id., 363 So.2d at 676-7.

In International River Center v. Johns-Manville Sales Corp., 2002-3060 (La.12/3/03), 861 So.2d 139, the supreme court apparently closed the door to courts deciding, without consent of the parties, whether the right to arbitration has been waived. Therefore, whether the Allumses waived their right to arbitration is an issue that cannot be resolved by this court.

The issue then becomes whether res judicata is an issue of “procedural arbitrability” like waiver and prematurity. This issue has not been addressed by Louisiana courts.

|7In Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-85, 123 S.Ct. 588, 592, 154 L.Ed.2d 491 (2002), the Supreme Court shed some light on what constitutes procedural arbitrability:

Linguistically speaking, one might call any potentially dispositive gateway question a “question of arbitrability,” for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court’s case law, however, makes clear that, for purposes of applying the interpretive rule, the phrase “question of arbitrability” has a far more limited scope. The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.

Thus, a gateway dispute about whether the parties are bound by a given arbitration clause raises a “question of arbitrability” for a court to decide. Similarly, a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court.

At the same time the Court has found the phrase “question of arbitrability” not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus “ ‘procedural’ questions which grow out of the dispute and bear on its final disposition” are presumptively not for the judge, but for an arbitrator, to decide. So, too, the presumption is that the arbitrator should decide “allegation^] of waiver, delay, or a like defense to arbitrability.” Indeed, the Revised Uniform Arbitration Act of 2000 (RUAA), seeking to “incorporate the holdings of the vast majority of state courts and the law that has developed under the [Federal Arbitration Act],” states that an “arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled.” And the comments add that “in the absence of an agreement to the contrary, issues of substantive arbitrability ... are for a court to decide and issues of procedural arbitrability, ie., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide.”

Citations omitted.

|SA search of cases across the nation reveals different answers to the question of whether res judicata is an issue of procedural arbitrability. For example of an affirmative answer, see Klay v. United Healthgroup, Inc., 376 F.3d 1092 (11th Cir.2004).

Other courts have reached a different result. In John Hancock Mut. Life Ins. Co. v. Olick, 151 F.3d 132 (3rd Cir.l998),'it was held that under the Federal Arbitration Act, a district court has the authority to enjoin arbitration on grounds of res judicata based on a prior judgment. See also Miller Brewing Co. v. Fort Worth Distributing Co., Inc., 781 F.2d 494 (5th Cir.1986).

The trial court was in a better position than an arbitrator to decide whether the earlier judgment, issued by another 26th JDC judge, had res judicata effect. Under the circumstances of this ease, we conclude that the trial court had subject matter jurisdiction to determine whether res judicata was a ground upon which to grant the preliminary injunction. The exception of lack of subject matter jurisdiction was properly denied.

Res Judicata

Under La. R.S. 13:4231, a second action is precluded by res judicata when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of lathe first litigation. Burguieres v. Pol lingue, 2002-1385 (La.2/25/03), 843 So.2d 1049.

The doctrine of res judicata is stricti juris, and any doubt concerning application of res judicata must be resolved against its application. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210.

In their cross-claim, the Allumses alleged that despite Wilson’s assurances to the contrary, the contract was inadequate and incomplete as it did not cover all of the items or components necessary to complete the log house. The Allumses further alleged that although Wilson had substantially completed the home, which took much longer than expected, he should be ordered to make corrections and/or adjust the contract because he had failed to install various items, several items that were installed needed to be repaired, they were charged for an upgrade to a countertop that was supposed to be done at no extra cost, and Wilson failed to build a staircase with logs.

Regarding the nature of the dispute, the Allumses wrote in their demand' for arbitration that Wilson failed to complete construction in the time agreed upon, failed to complete construction in accordance with the plans and specifications, failed to pay Ivey Lumber for materials used in the construction which resulted in a lien and a lawsuit, failed to pay other suppliers and subcontractors for work done on the project and/or failed to give the Allumses proper credit for materials supplied and/or paid for by them, and failed to complete construction for the agreed price.

| mThe Allumses contend that the judgment of dismissal cannot have res judicata effect because it should have been without prejudice. They also point out that La. C.C.P. art. 561(A)(3) provides, “This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.”

A trial court is without authority to dismiss an action with prejudice for failure to prosecute. Reed v. Peoples State Bank of Many, 36,531 (La.App.2d Cir.3/5/03), 839 So.2d 955.

However, dismissals for abandonment with prejudice have been recognized. See Pontchartrain Materials Corp. v. Quick Recovery Coatings Services, Inc., 2010-1476 (La.App.4th Cir.5/6/11), 68 So.3d 1113, writ denied, 2011-1104 (La.9/16/11), 69 So.3d 1143.

For whatever reason, the judgment of dismissal for abandonment was rendered with prejudice. The Allumses subsequently took no action to set aside the judgment or to seek review of it. They cannot now benefit from their own inaction. Accordingly, we recognize the judgment as having res judicata effect.

Exception of No Cause of Action

A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Birdsong v. Hirsch Memorial Coliseum, 42,316 (La.App.2d Cir.8/22/07), 963 So.2d 1095. The exception is triable on the face of the petition, and the |n facts pled are to be accepted as true. Industrial Companies, Inc. v. Durbin, 2002-665 (La.1/28/03), 837 So.2d 1207. In reviewing a trial court’s ruling sustaining an exception of no cause of action, this court should subject the case to de novo review because the exception raises a question of law, and the lower court’s decision is based only on the. sufficiency of the petition. Cleco Corp. v. Johnson, 2001-0175 (La.9/18/01), 795 So.2d 302.

La. C.C.P. art. 3601(A) provides that in general, an injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant.

Certainly the law provides a remedy for a party to enjoin a. pending arbitration when the basis of the arbitration is already the subject of a final judgment. The arbitration clause in the contract states only that “[a]ll claims and disputes between the Contractor and the Owner arising out or relating to the Contract, or the breach thereof, shall be decided by arbitration!)]” It does not state that all defenses to arbitration shall be decided by arbitration.

Furthermore, Wilson would suffer irreparable injury by having to undergo the unnecessary expense of defending himself against the same claim for the second time. He alleged in his petition that arbitration subjects him to the cost and inconvenience of a defense and concomitant exposure to judgment. Although Wilson agreed to arbitration in the construction contract, he obviously did not agree to arbitration following the end of litigation.

The Allumses cite Collins v. Prudential Ins. Co. of America, 1999-1423 (La.1/19/00), 752 So.2d 825, for the proposition that forcing a |12party to submit to arbitration is not an irreparable injury. However, that case can be readily distinguished as it dealt with the definition of irreparable injury in the context of La. C.C.P. art. 2083. The plaintiff in that case was not seeking injunctive relief. Rather, the plaintiff had filed a suit for defamation, libel, and intentional infliction of emotional distress, and the defendants had responded by filing a joint motion to compel arbitration. The trial court ordered arbitration, and the issue became whether that order was subject to an immediate appeal.

The trial court properly denied the exception of no cause of action.

Preliminary Injunction

In order to obtain a preliminary injunction, a plaintiff must show that he will suffer irreparable harm if the injunction is not granted, that he is entitled to the relief sought, and he must make a prima facie showing that he will prevail on the merits. Louisiana Granite Yard, Inc. v. LA Granite Countertops, L.L.C., 45,482 (La.App.2d Cir.8/18/10), 47 So.3d 573, writ denied, 2010-2354 (La.12/10/10), 51 So.3d 733. In contrast, the issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence. Id. Thus, because an applicant for a preliminary injunction need make only a pri-ma facie showing, less proof is required than in an ordinary proceeding for a permanent injunction. Id.

Wilson has already shown that he will suffer irreparable harm if the injunction is not granted, and that he is entitled to the relief. Furthermore, 11she has made a pri-ma facie showing that he will prevail on the merits of his defense that arbitration is barred by res judicata.

The Allumses argue that an abandoned suit cannot form the basis of a plea of res judicata. They cite Bishop Homes, Inc. v. Devall, 336 So.2d 313 (La.App. 1st Cir.1976), in support of their argument. However, this is not the typical case of an abandoned suit being dismissed without prejudice. Rather, the judgment dismissed the abandoned suit with prejudice.

The Allumses also argue that exceptional circumstances justify relief from any res judicata effect of the earlier judgment. We agree that circumstances were exceptional, just not in the Allumses’ favor. Their cross-claim remained dormant for over four years. Even after it was dismissed, the Allumses waited over three years to bring their demand for arbitration. They cannot now complain of the earlier judgment impeding their right to arbitration when they did nothing to correct it and have allowed this matter to languish.

Security

The Murases correctly argue that the trial court should have required security when granting the preliminary injunction. La. C.C.P. art. 3610 prohibits a court from issuing a temporary restraining order or preliminary injunction unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. Security will be imposed on remand.

| UDECREE

At the Murases’ cost, we affirm the granting of the preliminary injunction, the denial of the motion to dissolve the preliminary injunction, and the denial of the exceptions of no cause of action and lack of subject matter jurisdiction.

This matter is remanded for the imposition of security and further proceedings consistent with this opinion.

AFFIRMED AND REMANDED.

      . Prematurity is a question of procedural arbitrability. Bartley, Inc. v. Jefferson Parish School Bd., 302 So.2d 280 (La.1974).


author: AMY, Judge. THIBODEAUX, Chief Judge,

text:
    STATE of Louisiana v. Thomas HERBERT.
    No. 12-228.
    Court of Appeal of Louisiana, Third Circuit.
    June 13, 2012.

      J. Phillip Haney, District Attorney, New Iberia, LA, Angela B. Odinet, Assistant District Attorney, St. Martinville, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Thomas Herbert.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A, DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

hThe defendant was charged with second degree murder, a violation of La.R.S. 14:30.1. As part of a plea agreement with the State, the defendant pled guilty to manslaughter, a violation of La.R.S. 14:81. After a hearing, the trial court sentenced the defendant to forty years at hard labor. The defendant now appeals, contending that his sentence is excessive. For the following reasons, we affirm.

Factual and Procedural Background

In connection with the death of Joseph Adam Malin, the State charged the defendant, Thomas Blake Herbert, with second degree murder, a violation of La.R.S. 14:30.1. According to the record, the State contended that the defendant and a friend, Jesa Sam, beat Mr. Malin and that Mr. Malin died from a brain hemorrhage as a result of the attack.

After the trial court determined that certain inculpatory statements made by the defendant were admissible, the defendant entered a plea of guilty to the reduced charge of manslaughter, a violation of La.R.S. 14:31. At that hearing, the State alleged the following factual basis for the conviction:

Your Honor, with respect to Mr. Herbert, the State would submit that on or about the date alleged in the Bill of Information, a woman by the name of Cheramie Freyou had claimed that she was sexually assaulted by a person by the name of Motley Duhon. Motley Du-hon and the -victim, Adam [Malin] were friends, and Adam [Malin] was at the residence where and when the alleged sexual assault occurred. Motley Duhon denied assaulting Cheramie Freyou and Adam [Malin] corroborated the lack of any type of sexual assault on Cheramie Freyou. Ms. Freyou, dissatisfied, contacted Mr. Herbert and, Thomas Herbert, and [Jesa] Sam claiming she was sexually assaulted and for Mr. Herbert and Sam to come see about her. After dropping off Cheramie Freyou’s sister at her residence, Mr. Herbert and Mr. Sam were following a red van occupied by Cheramie Freyou and other members driving towards Neco Town Road, when they |2came across Mr. [Adam Ma-lin] walking down Deere Street in New Iberia. Cheramie Freyou pointed out Mr. Adam [Malin] and identified him as the person taking up for Mr. Duhon who she claimed had sexually assaulted her. Ms. Freyou told Mr. Herbert and [Jesa] Sam to go “handle up” on Mr. [Malin], which Ms. Freyou described that term to law enforcement in her interrogation as being to beat Mr. Adam [Malin] up.
The State would call witnesses that would testify that they saw Mr. Herbert and Mr. Sam approach Mr. [Malin] and begin striking him in the head multiple times causing him to fall to the ground. Both Mr. Herbert and Mr. Sam fled the scene. Mr. Herbert admitted in his interview to law enforcement officers, after a valid waiver of his Miranda rights, that he struck the victim “two or three times.” The victim, Adam [Malin] died as a result of the injuries caused by the defendant and [Jesa] Sam. The fatal injury to Mr. [Malin] was the cause by a blow to the head that resulted in (inaudible) hemorrhaging in the base of the brain causing pressure on the portion of the brain that controls the functioning of both respiration and heart rate resulting in Mr. [Malin]’s death.

The plea agreement indicates that the plea agreement was open-ended and that the trial court would order a certified criminal history.

When he pled guilty, the defendant testified that he was twenty-six years old and had an eighth grade education. At the sentencing hearing, Mr. Malm’s mother and uncle testified. Further, several -victim impact statements were submitted into the record. The State and the defense jointly submitted a certified criminal history that indicated that the defendant had a misdemeanor conviction for remaining after forbidden from 2003. Additionally, the defendant and several of his family members testified on his behalf. After hearing all of the evidence, the trial court sentenced the defendant to forty years at hard labor, the maximum sentence for manslaughter. La.R.S. 14:31(B). The defendant later filed a motion for reconsideration, which the trial court denied after a hearing.

The defendant now appeals, asserting as his sole assignment of error that his sentence is excessive.

laDiscussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no such errors. Excessive Sentence

In his sole assignment of error, the defendant contends that the trial court erroneously imposed an excessive sentence.

As part of its review of a sentence for excessiveness, the appellate court should review the record to ensure that the trial court adequately complied with La.Code Crim.P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983). Article 894.1 contains a list of sentencing guidelines and requires that the trial court “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La.Code Crim.P. art. 894.1(C). This court, in State v. Spencer, 00-1335, p. 7 (La.App. 3 Cir. 2/28/01), 781 So.2d 780, 785, stated:

The purpose of obligating a trial court to do so “is to insure that each sentence is individualized to the offender and the offense.” State v. Davis, 511 So.2d 91, 92 (La.App. 3 Cir.1987). However, to comply with La.Code Crim.P. art. 894.1(C), the trial court is not required to “articulate every circumstance or read through a checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96); 677 So.2d 480, 483. Still, the record should sufficiently establish that the trial court adequately considered the guidelines of La.Code Crim.P. art. 894.1 in particularizing a defendant’s sentence. Id.

At the sentencing hearing, the defendant’s certified criminal history was available to the trial court. Additionally, Mr. Malm’s mother and uncle testified about the impact that Mr. Malin’s death has had on their family. Victim impact statements from Mr. Malin’s father, grandmother, and aunt were also submitted to the trial court. When imposing sentence, the trial court stated that it considered the testimony and the victim impact statements introduced at the hearing, as well as |4the sentencing guidelines provided in Article 894.1. Further, the trial court specifically discussed several of the aggravating and mitigating factors listed in Article 894.1.

Accordingly, we find that the record indicates that the trial court took proper cognizance of the sentencing factors delineated in Article 894.1.

The second inquiry is whether the sentence imposed is excessive. The trial court has wide discretion in imposing a sentence, and, absent an abuse of discretion, a sentence that is within the statutory guidelines is not deemed constitutionally excessive. State v. Saucier, 11-246 (La.App. 3 Cir. 11/9/11), 81 So.3d 691 (quoting State v. Brandenburg, 06-1158 (La.App. 3 Cir. 2/7/07), 949 So.2d 625, writs denied, 07-538, 07-614 (La.10/26/07), 966 So.2d 571, 573). Further, in State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, 311, this court discussed the review of excessive sentence claims, stating:

The relevant question on review of a sentence is whether the trial court abused its broad sentencing discretion and not whether the sentence imposed may appear harsh or whether another sentence might be more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). To constitute an excessive sentence, this court must find the penalty imposed is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals; and, therefore, it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981).

In making the determination of whether a sentence is shocking to our sense of justice or makes no meaningful contribution to acceptable penal goals,

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

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

The defendant argues that, because he is a first felony offender, the trial court erred in imposing the maximum sentence for manslaughter. He also contends that he is not the “worst type of offender” because he is not known to be violent, expressed remorse for his actions and Mr. Malin’s death, and that his motivation was a “misplaced sense of chivalry.”

The defendant was initially charged with second degree murder, but pled guilty to a reduced charge of manslaughter, a violation of La.R.S. 14:31. At the sentencing hearing, the trial court imposed a sentence of forty years at hard labor, the maximum potential sentence under La.R.S. 14:31. Generally, maximum sentences are reserved for the most serious violation of the offense and the worst type of offender. State v. Russell, 42,479 (La.App. 2 Cir. 9/26/07), 966 So.2d 154, writ denied, 07-2069 (La.3/7/08), 977 So.2d 897. However, “where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense.” State v. Falcon, 44,829, p. 4 (La.App. 2 Cir. 10/28/09), 26 So.3d 172, 175. We observe that the defendant was initially charged with second degree murder, a violation of La.R.S. 14:30.1, which mandates a sentence of life imprisonment. Accordingly, the defendant’s sentencing exposure was substantially reduced by his plea agreement.

The trial court gave oral reasons when imposing the defendant’s sentence, stating that he had taken into account the evidence presented at the hearing and the sentencing guidelines provided by La.Code Crim.P. art. 894.1. In those reasons, the trial court acknowledged that the defendant had “never been involved in this type of activity before.” However, the trial court disagreed with the defendant’s contention that Mr. Malin’s death was an accident, finding that the beating administered by the defendant and Mr. Sam was “severe, it was deliberate” and that the defendant was trying to minimize his culpability for the crime. Additionally, a certified criminal history was available to the trial court, which indicated that the defendant had a prior misdemeanor conviction.

Further, in addition to the evidence submitted at the plea and sentencing hearings, the record indicates that trial court ruled on several pre-trial evidentiary issues and was privy to DVD interviews, police reports and grand jury testimony. A trial court may rely on varied sources of information and “may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrest as well as conviction records.” State v. Myles, 94-217, p. 2 (La.6/3/94), 638 So.2d 218, 219.

|7A review of comparable cases indicates that maximum or near-maximum sentences for manslaughter have been upheld on a number of occasions. In State v. Bowman, 95-667 (La.App. 4 Cir. 7/10/96), 677 So.2d 1094, writ denied, 96-2070 (La.1/31/97), 687 So.2d 400, the defendant was sixteen at the time of the offense and a first offender. The defendant was driving and one of his friends was “fussing” with a pedestrian. The defendant acquiesced to the friend’s request that he turn the car around and drive back towards the pedestrian. The friend then shot and killed the pedestrian; the defendant contended that he did not know the friend intended to do so. The defendant was charged with second degree murder, but a jury returned the lesser verdict of manslaughter. After a hearing, the trial court imposed a sentence of thirty-three years at hard labor. The fourth circuit affirmed, finding that the trial court adequately considered the sentencing guidelines and that the sentence was not excessive.

In State v. Sarkozy, 99-386 (La.App. 4 Cir. 1/26/00), 755 So.2d 345, the State alleged that the defendant beat the victim to death with a hammer after the victim refused to loan him a quarter. The defendant was charged with second degree murder; however, a jury found him guilty of the lesser charge of manslaughter. The trial court imposed the maximum sentence even though the defendant was a first offender. The trial court found that the crime was deliberately cruel, that the defendant was not acting in self-defense, and that he showed no remorse. On appeal, the fourth circuit found that the sentence was not constitutionally excessive. See also Falcon, 26 So.3d 172; State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-836 (La.9/20/96), 679 So.2d 430.

Based on our review of the record, we find that the trial court did not abuse its broad sentencing discretion in imposing the maximum sentence. The trial court Isfound that the defendant committed an act of actual violence and that the beating received by the victim was severe and deliberate. Further, the trial court found that the defendant tried to minimize his culpability for the crime. Although the defendant is a first felony offender, he received a significant benefit by pleading guilty to manslaughter instead of second degree murder. Further, our review of similar cases indicates that courts have upheld maximum or near-maximum sentences for cases for manslaughter in circumstances similar to those of the defendant.

This assignment of error is without merit.

DECREE

The sentence of the defendant, Thomas Blake Herbert, for the charge of manslaughter, a violation of La.R.S. 14:31, is affirmed.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents with written reasons.

THIBODEAUX, Chief Judge,

dissenting.

_JjThe defendant’s only past record is a nonviolent misdemeanor offense. The jurisprudence is clear. Maximum sentences are reserved for the most egregious offenses and the worst type of offender. In imposing a forty-year sentence for a first time felony offender, the tridl court abused its sentencing discretion. While I do not wish to minimize the severity of this offense, I find that the maximum sentence in this case makes no meaningful contribution to acceptable penal goals and only results in enhancing Louisiana’s position as the incarceration capital of the world.

For the foregoing reasons, I respectfully dissent.

      . The defendant's last name is spelled "Hebert” in portions of the record. Further, the victim's last name is spelled "Malyn” in portions of the record and Cheramie Freyou's name is spelled as "Shermai” or “Sheramie.” Jesa Sam’s name is occasionally spelled "Jes-sa” or "Jesse.” We use the spellings contained in the bill of information and the defendant’s appellate brief, as appropriate.

      . In its discussion of the sentencing guidelines, the trial court made the following findings:
      I find that the defendant is in need of correctional treatment at a custodial environment which can most effectively be provided by a commitment to an institution, and in fact the law requires that he be committed to an institution, and I don’t find that to be constitutionally excessive. Any sentence less than what I intend to impose would deprecate the seriousness of the defendant’s actions. I disagree with the Defense that his conduct was a mistake or an accident. The beating received by Mr. Ma-lin was severe, it was deliberate, and I think Mr. Herbert today tries to minimize what he did. He knowingly created a risk of great bodily harm, he committed an act of actual violence. He did not use any dangerous weapon or handgun or other firearm, but basically, he and his friend beat Mr. Malin to death.
      As a mitigating circumstance, he has never been involved in this type of activity before. There’s no evidence of that. This did not involve any economic offense or controlled dangerous weapon. Mr. Herbert indicates that he did not contemplate any harm, but I find that difficult to believe. He did not act under any strong provocation. There are no grounds that tend to excuse or justify his conduct. Mr. Malin did not do anything that induced or facilitated the commission of the crime against him. It's impossible for Mr. Herbert to compensate the victim’s family. Impossible to compensate the victim. And I’m not convinced by the evidence that his conduct was a result of circumstances unlikely to occur.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Christopher Henry JOSEPH.
    No. 11-1583.
    Court of Appeal of Louisiana, Third Circuit.
    June 13, 2012.

      Edward K. Bauman, Louisiana Appellate. Project, Lake Charles, LA, for Defendant/Appellant, Christopher Henry Joseph.
    Christopher Henry Joseph, In Proper Person, Angola, LA, Defendant/Appellant.
    John F. DeRosier, District Attorney, Fourteenth Judicial District, Jonathan Blake, Carla S. Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| defendant, Christopher Henry Joseph, appeals his first degree murder conviction and life sentence, alleging insufficiency of the evidence and excessive sentence. We vacate Defendant’s conviction and sentence for first degree murder, render a judgment of conviction on the lessor included responsive offense of second degree murder, and remand the case to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

On August 28, 2008, Defendant shot and killed Darius Wilson. He was indicted on October 31, 2008, for first degree murder, a violation of La.R.S. 14:30. Subsequent to jury trial February 15-17, 2011, Defendant was found guilty as charged. On March 11, 2011, he was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence.

Defendant did not file a motion to reconsider his sentence. He perfected a timely appeal, wherein he alleges excessive sentence. Defendant also alleges, in a pro se assignment of error, that the evidence was insufficient to sustain the verdict of first degree murder.

DISCUSSION

DEFENDANT’S PRO SE ASSIGNMENT OF ERROR

(Insufficiency of the Evidence)

In his pro se assignment of error, Defendant alleges that the evidence was insufficient to sustain the verdict of first degree murder. We will address Defendant’s pro se assignment of error first for the reason that should there be merit to this assignment, Defendant could be entitled to an acquittal of the conviction for first degree murder under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981) and State v. Hearold, 603 So.2d 731 (La.1992).

12At trial, Defendant did not refute that he shot the victim; however, he argued that the killing was justified in that he believed the victim reached for a gun as Defendant approached the car. In brief, he argues that the State failed to prove that he was not acting in self-defense.

In State In re D.P.B., 02-1742, pp. 4-6 (La.5/20/03), 846 So.2d 753, 756-57 (footnotes omitted), wherein the defendant had asserted justifiable homicide, the supreme court observed:

“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)_ [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).... Furthermore, in a case in which defendant asserts that he acted in self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982). When defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

In the instant case, Defendant was charged with first degree murder. The elements of the offense of first degree murder are set out in La.R.S. 14:30 which provides in pertinent part:

A. First degree murder is the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated rape, forcible rape, aggravated burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles.
|⅞(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.

A killing is justifiable “[wjhen. committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La.R.S. 14:20(A)(1).

At trial, Ashley Renee John testified that she and Defendant had been together for approximately fourteen years. They had two daughters. The oldest was nine years old at the time of the shooting, and the youngest was six years old at the time of the shooting. The couple had separated in January 2008, and Ms. John had begun dating the victim, Darius Wilson, in April 2008.

On the day of the shooting, Mr. Wilson and Ms. John’s mother had picked her up from work in the early afternoon. Ms. John explained that the girls attended school a few blocks from her grandmother’s house, and it was customary for the girls to walk to their great grandmother’s house after school, where Ms. John would pick them up. Ms. John testified that, on the day of the shooting, they dropped her mother off at home and went to her grandmother’s house to pick up the girls. She stated that this was the second time Mr. Wilson had accompanied her to pick up the girls and that she had never spoken of Mr. Wilson to Defendant.

Ms. John stated that when she arrived at her grandmother’s house, she backed the car into the driveway and waited. Shortly thereafter, she saw the girls coming down the street. As they walked toward the car, she started to pull out of the driveway when she noticed that Defendant, in a green car, raced up to her car and blocked her in. She said that Defendant jumped out of the car, talked to the oldest girl, went back to his car, and came back shooting. She stated there were no words exchanged between her and Defendant or between Mr. Wilson and 14Pefendant. Mr. Wilson just kept telling her to back up. There was no time for Mr. Wilson to even get out of the car. Ms. John left the vehicle and ran to a neighbor’s house to call 911. After the shooting, Defendant sped away in the vehicle in which he had arrived.

A neighbor who lived across the street from Ms. John’s grandmother, Abbie Lewis, was standing on the curb with his granddaughter when he saw a green car speed up to Ms. John’s vehicle. He heard curse words and four or five shots. He stated that it was the man who was in the green car who did the shooting. He saw no one in Ms. John’s car do anything. Ms. John rushed her kids across the street and used his phone.

Ms. John’s oldest daughter was interviewed on the same day of the shooting by Erica Simon, a forensic interviewer for the Children’s Advocacy Center. A DVD of the interview was published to the jury. During the interview, the girl essentially told the same story as her mother; however, she said that she first saw Defendant in the green car at school and that he had followed them until they saw their mother’s car. When asked if anyone had said anything, she said that Mr. Wilson had kept yelling to her mother to back up the car. She said that Defendant got out of his car, hugged and kissed her, and commenced shooting.

While Defendant did not testify, the State played a DVD of an interview with Defendant conducted by the police after he had been apprehended. He stated that the incident started with a phone call from Ms. John. He said that she was trying to get back at him because he had been with another woman. He said that during a second phone call, the victim got on the phone and threatened him. He did not specify in what manner the victim threatened him. After the second phone call, he got a ride to a storage unit and retrieved a gun. He then said that he walked from wherever he was to go see the girls. He stated he had no idea that Ms. John | ¿had a boyfriend and that he did not know the victim. He said that when he got to Ms. John’s grandmother’s house, he saw Ms. John in a car with a man. He saw the car door open and saw something silver, and he began shooting because he knew it was a gun and that the man meant to kill him. He had no choice but to kill the man. He said that Ms. John took the victim’s gun out of the car. Defendant insisted he walked to the scene of the shooting and was never in a car.

Doctor Terry Welke, a physician who works for the Parish Coroner’s Office, testified that Mr. Wilson’s cause of death was a gunshot to the chest that penetrated the victim’s heart. He stated that there was a clear contact wound on the skin surrounding the bullet entry. He opined that the barrel of the gun was placed to the victim’s chest when the fatal shot was fired.

We find that the State met its burden of proof that Defendant did not act in self-defense in this case. There were no facts presented to the jury which indicated that Defendant could have reasonably believed his life was in imminent danger and that deadly force was necessary.

In State v. Patterson, 10-415, p. 13 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 149, writ denied, 11-338 (La.6/17/11), 63 So.3d 1037, the fifth circuit noted:

The determination of a defendant’s culpability rests on a two-old test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. [State v.] Theriot, 07-71 at 12, [ (La.App 5 Cir. 6/26/07),] 963 So.2d [1012] at 1020. The . jury is the ultimate fact-finder in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt. Theriot, 07-71 at 13, 963 So.2d at 1020.

Furthermore, while discussing self-defense in the case of a second degree murder conviction, this court has held:

The standard in La.R.S. 14:20 is whether the Defendant’s subjective belief that he was in danger was reasonable. State v. Brown, 93-1471 (La.App. 3 Cir. 5/4/94), 640 So.2d 488.
| fiFactors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982).

State v. Spivey, 38,243, p. 6 (La.App. 2 Cir. 5/12/04), 874 So.2d 352, 357.

In cases where the defendant claims self-defense as a justification, the absence of a weapon from the victim’s person or immediate reach is often a critical element of the state’s proof. See State v. Davis, 28,662 (La.App.2d Cir.9/25/96), 680 So.2d 1296.... The absence of weapon on the victim, however, is not dispositive of the issue.
State in Interest of D.S., 29,554, p. 3 (La.App. 2 Cir. 5/7/97), 694 So.2d 565, 567.

State v. Griffin, 06-543, pp. 8-9 (La.App. 3 Cir. 9/27/06), 940 So.2d 845, 851, writ denied, 07-02 (La.9/14/07), 963 So.2d 995.

In the case at bar, Defendant admitted that he had never met Mr. Wilson nor did he know of him. Although he stated the victim threatened him on the phone, he did not specify the nature of the threat. There was no evidence Mr. Wilson had a weapon on his person or in the car. The testimony established there were no words spoken. Both Ms. John and the oldest daughter testified that Mr. Wilson yelled for Ms. John to back the car away when he saw Defendant approach with a gun.

In brief, Defendant also discusses manslaughter briefly, but does not indicate how he acted in “sudden passion” or “heat of blood.” We find nothing before this 17court that would have reduced the conviction for first degree murder to manslaughter. However, we agree with Defendant that there was nothing put before the jury that would indicate he was engaged in the perpetration or attempted perpetration of cruelty to a juvenile such that would qualify the offense as first degree murder.

During trial, the trial court discussed with defense counsel and the State the offense of first degree murder and the relevant components with which to charge the jury. The State informed the trial court that the enumerated crime which elevated the intentional shooting to first degree murder was “cruelty to a juvenile.”

Cruelty to juveniles is defined, in pertinent part, as “[t]he intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.” La.R.S. 14:93(A)(1).

The term “intentional” refers to general criminal intent to mistreat or neglect and does not require an intent to cause the child unjustifiable pain and suffering. State v. Schultz, 01-995 (La.App. 5 Cir. 4/10/02), 817 So.2d 202, 208, writ denied, 02-1320 (La.11/27/02), 831 So.2d 270. General criminal intent is “present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” LSA-R.S. 14:10(2); Id.
An alternative to proving defendant had general criminal intent to mistreat or neglect the child thereby causing the child unjustifiable pain and suffering is to prove that defendant was criminally negligent in his mistreatment or neglect of the child. Criminal negligence “exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” LSA-R.S. 14:12; State v. Jackson, 98-1254 (La.App. 5 Cir. 3/30/99), 733 So.2d 657, 661.

State v. Chacon, 03-446, pp. 4-5 (La.App. 5 Cir. 10/28/03), 860 So.2d 151, 153.

| ^Finally, and more importantly, in the instant case, the State had to prove unjustifiable pain and suffering. There was no testimony or any other evidence given that indicated that either child was physically injured in any way. This court has held that a victim need not have sought medical attention in order to find unjustifiable pain and suffering. See State v. C.S.D., 08-877 (La.App. 3 Cir. 2/4/09), 4 So.3d 204. Both Ms. John and her daughter testified' that Defendant initially hugged and kissed the girl. There was no indication that either child was harmed because of the gunshots to the car, nor was there any evidence introduced that showed the girls had suffered psychological harm.

In State v. Barr, 354 So.2d 1344, 1347 (La.1978), the supreme court stated that “‘[ujnjustifiable pain and suffering’ must be understood to mean something more than psychological harm[.j” In Barr, the defendant was convicted of cruelty to a juvenile because she abandoned an infant on Bourbon Street in New Orleans. Concluding that the baby suffered no more than a slight separation anxiety, the supreme court noted that “[tjhe only evidence of pain and suffering in the record before us (and it is scant and speculative) shows rather minimal distress on the part of the child because of his mother’s absence.” Id. However, the supreme court went on to state, “nor do we hold that psychological harm cannot be ‘unjustifiable pain and suffering.’ ” Id.

We are not aware of any case wherein unjustifiable pain and suffering were inflicted on a child because he/she witnessed his/her parent committing a crime. We note that during the interview conducted with the nine year old, she appeared relatively calm. She was hesitant, but gave clear answers to the questions asked. At one point, she stated she hoped they would catch him (Defendant) because Darius was her friend. We find that the evidence adduced at trial as to the children |9suffering psychological harm does not meet the criteria of “unjustifiable pain and suffering.”

The State also argued La.R.S. 14:30(A)(3), and the trial court instructed the jury, in that a person could be convicted of first degree murder if the evidence showed that the offender had the “specific intent to kill or to inflict great bodily harm upon more than one person.” La.R.S. 14:30(A)(3). At trial, the State argued that there were several persons in harm’s way — particularly, Ms. John, who was sitting in the car at time Defendant began shooting. The State argued that if an offender aims a gun at more than one person, certainly there was specific intent to kill or inflict great bodily harm on more than one person. The State further argued anyone could have been shot. In order to prove the crime of first degree murder committed under La.R.S. 14:30(A)(3), the State had to prove two elements: 1) Defendant killed the -victim; and, 2) Defendant had the specific intent to kill or to inflict great bodily harm upon more than one person. State v. Bourque, 622 So.2d 198 (La.1993), overruled on other grounds by State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, cert, denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998). In Bourque, the defendant shot and killed the victim. He argued that he pointed the weapon at the second victim only to keep her from interfering, but that the gun discharged when she knocked it way with her hand. The supreme court stated:

As stated previously, this court has rejected the idea that R.S. 14:30(A)(3) must be interpreted solely as occurring by a defendant’s single act, such as when' a bomb explodes in a crowded building. Instead, this court has determined the legislature intended this type of first degree murder to include “those murderers who formed an intent to commit multiple killings and who did in fact create the risk of multiple deaths through a single act or a closely related series of acts that resulted in at least one death.” [State v.] Williams, 480 So.2d [721] at 727 [ (La.1985) ] (emphasis supplied)[.]

Id. at 242-43 (footnote omitted).

|inIn the instant case, there was no evidence submitted that Defendant intended to shoot anyone else. While Ms. Jones was in the car with the victim, she never testified that Defendant pointed the gun at her. There was no testimony that either of the children were close by the car when the shooting started. In fact, Ms. John testified the oldest girl was standing on the sidewalk when the shooting started. During the interview at the Children’s Advocacy Center, the oldest girl stated that her sister had already walked up to the grandmother’s house. There was no testimony that Defendant pointed the gun at either of the girls. State’s Exhibit 18, a five by eight photograph of Ms. John’s car at the scene of the shooting, showed a series of bullet holes in the hood of Ms. John’s car starting in the front of the hood and moving in a line towards the corner of the front windshield on the passenger’s side of the car. The bullet holes clearly indicate that Defendant was aiming specifically for the victim. Dr. Welke, with the Coroner’s office, testified that the victim died as a result of a clear contact gunshot wound to the chest. Defendant then immediately left the scene without attempting to harm anyone else. We find that there was insufficient evidence presented that Defendant specifically intended to kill or cause great bodily harm to more than one person.

In State v. Andrews, 452 So.2d 687 (La.1984), the defendant was convicted of first degree murder under La.R.S. 14:30(A)(3), due to an intent to kill or harm more than one person. The supreme court reduced the charge to second degree murder, finding that “no rational trier of fact could have concluded beyond a reasonable doubt that Andrews, by firing at Patrick, actively intended to kill both Patrick and Joel.” Id. at 689. Andrews had fought with both of the brothers earlier in the day. He obtained a gun and declared he was going to kill both of the brothers. He was able to find only Patrick, whom he shot and killed. He never |nfound the second brother before he was apprehended. The supreme court reduced the conviction, stating:

This court, pursuant to C.Cr.P. 821(E), has the power to modify the verdict and render a judgment of conviction on a lesser included responsive offense. Second degree murder is a responsive verdict to first degree murder. C.Cr.P. 814(A)(1). R.S. 14:30.1(1) defines second degree murder as “the killing of a human being ... [w]hen the offender has a specific intent to kill or inflict great bodily harm.” Second degree murder carries a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The record clearly supports a conviction on such a charge.
Accordingly, defendant’s conviction is modified to second degree murder (R.S. 14:30.1(1)).

Id.

In the instant case, based on the evidence presented, particularly the lack of evidence required to convict the Defendant of first degree murder, we vacate Defendant’s first degree murder conviction and sentence. However, the evidence in the record clearly and unequivocally establishes beyond a reasonable doubt that Defendant armed himself and drove purposefully to where he knew Ms. John would be picking up the children. He specifically opened fired on a man sitting in Ms. John’s car. The evidence further indicated that he placed the gun to the victim’s chest and fired the shot which resulted in the victim’s death. There was no evidence that the victim had a weapon or in any way acted aggressively towards Defendant. Defendant was the aggressor and was not acting in self-defense. We find the evidence, viewed in the light most favorable to the State, supports only a conviction of the lesser included responsive offense of second degree murder. Therefore, we modify the verdict of guilty of first degree murder, vacate the sentence therefor, and render a judgment of conviction on the lesser included responsive offense of second degree murder. State v. Ledet, 96-142 (La.App. 1 Cir. 11/8/96), 694 So.2d 336, writ denied, 96-3029 (La.9/19/97), 701 So.2d 163.

.ASSIGNMENT OF ERROR

(Excessive Sentence)

Having vacated Defendant’s conviction and sentence of first degree murder and having found him guilty of the responsive verdict of second degree murder, we must remand this matter to this trial court for resentencing on his second degree murder conviction. Consequently, Defendant’s assignment of error alleging excessive sentence is rendered moot.

DISPOSITION

We vacate Defendant’s first degree murder conviction and sentence. In accordance with La.Code Crim.P. art. 821(E), we render a judgment of .conviction on the lesser included responsive offense of second degree murder, a violation of La.R.S. 14:30.1(A)(1), and remand this matter to the trial court for resentencing on his second degree murder conviction.

FIRST DEGREE MURDER CONVICTION AND SENTENCE VACATED, SECOND DEGREE MURDER CONVICTION RENDERED, AND REMANDED FOR RESENTENCING.

      . This court is cognizant of the fact and notes that the sentences for non-capital first degree murder (La.R.S. 14:30(C)(2)) and second degree murder (La.R.S. 14:30.1(B)) are identical; however, we must remand the matter to the trial court for resentencing in order to preserve Defendant's right to file whatever post sentence motions he deems appropriate.


text:
    Rhonda A. LUQUETTE v. Clayborn SELF d/b/a Blockbuster Video.
    No. 12-112.
    Court of Appeal of Louisiana, Third Circuit.
    June 13, 2012.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, for Defendant/Appellant, for Clayborn Self d/b/a/ Blockbuster Video and Bridgefield Casualty Insurance Company.
    Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellee, for Rhonda A. Luquette.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this workers’ compensation case, the employer, Clayborn Self d/b/a Blockbuster Video, and its insurer, Bridgefield Casualty Insurance Company (collectively Blockbuster), appeal the judgment of the Office of Workers’ Compensation (OWC) denying their motion to modify a judgment awarding the employee, Rhonda A. Luquette, temporary total disability (TTD) benefits and subsequently denying its Motion for New Trial. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

While employed with Blockbuster, Ms. Luquette sustained a work-related injury resulting in surgery on her back in May 2004. Ms. Luquette was treated by Dr. Louis Blanda, the orthopedic surgeon who performed her back surgery, and Dr. Charles Bramlet, a general psychiatrist, for psychological issues and pain management purposes. In December 2004, the parties entered into a consent judgment awarding Ms. Luquette TTD benefits.

In October 2010, Blockbuster filed a disputed claim for compensation, seeking to have the 2004 consent judgment modified on the grounds that Ms. Luquette’s disability status was no longer temporary. Following a hearing, Blockbuster’s motion was denied by the workers compensation judge (WCJ). Blockbuster then filed a Motion for New Trial, which was likewise denied. Blockbuster appeals.

ASSIGNMENTS OF ERROR

On appeal, Blockbuster presents the following assignments of error for our review:

|21. The OWC committed manifest error when it failed to modify the consent judgment of August 15, 2004[] to reflect that Ms. Luquette’s condition was no longer temporary.
2. The OWC committed manifest error when it failed to grant the Motion for New Trial after denying the motion to modify the consent judgment when the ruling was clearly contrary to the law and evidence.

LAW AND DISCUSSION

A party may move to modify an existing judgment of the OWC pursuant to the authority of La.R.S. 23:1310.8(B), which provides as follows:

B. Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

Pursuant to La.R.S. 23:1310.8(B), Blockbuster sought to modify the consent judgment awarding Ms. Luquette TTD benefits on the grounds of a change in her condition. As the mover, the burden was upon Blockbuster to “prove by a preponderance of the evidence that [Ms. Lu-quette’s] disability has increased or diminished.” Doyal v. Vernon Parish Sch. Bd., 10-427, p. 2 (La.App. 3 Cir. 11/3/10), 52 So.3d 917, 920, writs denied, 11-305, 11-400 (La.4/8/11), 61 So.3d 685, 691 (quoting Lormand v. Rossclaire Constr., 01-515, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 675, 676). These factual findings of the WCJ “are entitled to great weight and will not be disturbed unless clearly wrong.” Id.

Ms. Luquette testified on her own behalf at the hearing on the motion to modify. According to Ms. Luquette, she continues to have significant physical and emotional problems. She testified that she has continuing problems with her back | sand both hips, as well as radiating pain down her left leg. She takes pain medication four times a day and medication to help her sleep. Ms. Luquette explained that she experiences “good and bad days.” On a good day, she does manage to do some household chores, but she is unable to do “any real cleaning.” On what she described as a bad day, Ms. Luquette states that she is “in bed most of the day” due to pain. It was her testimony that she has trouble with prolonged sitting and standing, and she has trouble walking.

Doctor Blanda’s deposition testimony was also introduced into evidence at the hearing. His opinion, based upon a recent functional capacity evaluation, is that, physically, Ms. Luquette is able to perform some like-duty work. However, Dr. Blan-da recognized that “there’s [sic] some other issues ... that go beyond the orthopedic problems that probably need to be considered[.]” He explained that although “she can do certain things[,]” what also needs to be considered is “whether she can continue to do that day in and day out because of psychological problems[.]” Dr. Blanda confirmed that he has never released Ms. Luquette to return to work.

The deposition testimony of Dr. Bramlet was also introduced. Dr. Bramlet testified that he has primarily treated Ms. Luquette for pain management, but he has also addressed some of her psychiatric problems. Consistent with Dr. Blanda’s testimony, Dr. Bramlet explained the necessity of factoring in Ms. Luquette’s psychological condition with her physical limitations. Dr. Bramlet agreed with Dr. Blanda that Ms. Luquette could do light-duty work from a physical standpoint alone; however, when coupled with the psychological component of her condition, he is of the opinion that she is not capable of returning to work. According to Dr. Bramlet, Ms. Luquette still has some significant psychological problems. Although Dr. Bramlet was willing to review light-duty work descriptions, he Umaintained that Ms. Luquette was unable to work, and he acknowledged the “mixed picture” that was presented.

Based upon the evidence of record, and considering no contradictory medical evidence, we do not find the factual findings of the WCJ to be clearly wrong. Therefore, we affirm the judgment of the OWC denying Blockbuster’s motion to modify the December 2004 consent judgment.

In its second assignment of error, Blockbuster asserts that the WCJ erred in failing to grant its Motion for New Trial. We disagree.

Louisiana Code of Civil Procedure Article 1972(1) provides that a new trial shall be granted “[w]hen the verdict or judgment appears clearly contrary to the law and evidence.” An appellate court reviews the grant or denial of a motion for new trial pursuant to the abuse of discretion standard of review. Harbor v. Christus St. Frances Cabrini Hosp., 06-593 (La.App. 3 Cir. 11/2/06), 943 So.2d 545.

Relative to the denial of its Motion for New Trial, Blockbuster advances the same arguments it raised in its first assignment of error and concludes that “there was ample evidence to show that Ms. Lu-quette’s condition should no longer be classified as temporary total disability.” Based upon our review of the record, for the reasons set forth above, we find no abuse of discretion in the WCJ’s denial of the Motion for New Trial.

DECREE

For the foregoing reasons, we affirm the judgment of the Office of Workers’ Compensation denying the motion to modify the December 2004 consent judgment filed by Clayborn Self d/b/a Blockbuster Video and Bridgefield Casualty Insurance Company awarding Rhonda A. Luquette temporary total disability benefits. The judgment denying their Motion for New Trial is likewise affirmed. All costs of |5these proceedings are assessed to Clayborn Self d/b/a Blockbuster Video and Bridgefield Casualty Insurance Company.

AFFIRMED.

      . Blockbuster's use of August 15, 2004, as the date of the consent judgment is an error as the disputed claim for compensation reflects a date of December 15, 2004, and the judgment on the motion to modify the judgment contains a date of December 14, 2004. The actual consent judgment is not part of the record.