text:
    John Rene GALLET v. Crystal Suire GALLET.
    No. 11-1416.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Paige P. Campbell, Baton Rouge, LA, for Plaintiff/Appellant, John Rene Gallet.
    Nicholas Bellard, Bellard Law Offices, LLC, Crowley, LA, for Defendant/Appel-lee, Crystal Suire Gallet.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

hBy considered decree, the parties shared joint custody of their minor daughter, with the mother designated as the domiciliary parent. The father filed a petition seeking a change in custody and requesting that he be granted sole custody of the child, or, alternatively, joint custody with himself designated as domiciliary parent. He also sought review of various decisions made by the child’s mother with regard to health care services, among other things. The trial court ultimately denied the father’s requests in full. The father appeals. For the following reasons, we affirm.

Factual and Procedural Background

Gabrielle Gallet, born in 2002, is the only child of John Gallet and Crystal Gallet (now Crystal Breaux). In 2003, the divorcing couple agreed to joint custody of the minor child, with Ms. Breaux designated as the domiciliary parent. The trial court has denied. Mr. Gallet’s various requests to alter the custody arrangement in his favor. Due to the trial court’s repeated inquiry into the custody issue, however, the custody regime at issue resulted from a considered decree rendered in July 2008. That decree awarded the parties’ joint custody of Gabrielle, with Ms. Breaux maintaining status as the domiciliary parent.

The proceedings now under review were instituted in July 2010 when Mr. Gallet filed a “petition to modify custody, visitation, and restricted visitation.” He sought sole custody, arguing that Gabrielle would “suffer immediate and irreparable harm” if custody continued in the alternating week fashion previously designated. He 12alleged that numerous actions or inac-tions of Ms. Breaux warranted that he be awarded sole custody of Gabrielle. Alternatively, and in the event joint custody was maintained, Mr. Gallet sought designation as the domiciliary parent. Mr. Gallet later amended his petition to question Ms. Breaux’s decision to change Gabrielle’s primary care physician. He also asked the trial court to hold Ms. Breaux in contempt of court and to assign court costs to her.

After four days of testimony, the trial court denied Mr. Gallet’s requests. The trial court further ordered that Gabrielle continue treatment with her counselor for anxiety issues until discharge by that counselor. It also appointed a parenting coordinator pursuant to La.R.S. 9:358.1, et seq.

Mr. Gallet appeals, asserting that the trial court erred in 1) finding that he failed to meet his burden under the Bergeron standard and, therefore, in failing to award him sole custody or, at a minimum, designate him as the domiciliary parent; 2) denying the father’s requests regarding the child’s primary care physician and psychiatrist; 3) denying the father’s request that the mother be held in contempt; 4) ordering a parental coordinator; and in 5) casting the father with the costs of this proceeding.

Discussion

Burden of Proof

Mr. Gallet first contests the trial court’s determination that he failed to meet his burden of proving the necessity of the change in custody. He contends that this finding was in error in light of testimony from Gabrielle’s former psychiatrist and counselors. He asserts that this evidence warranted a determination that Ms. Breaux has failed to appreciate the anxiety suffered by their daughter and that the continued custody arrangement is, therefore, deleterious.

Mr. Gallet’s request to change the custody and domiciliary status previously designated in a considered decree required him to satisfy the burden of proof set forth |sin Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986), wherein the supreme court explained that:

When a trial court has made a considered decree of permanent custody the party seeking a change 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 decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

We are mindful that a trial court’s determination in custody matters is entitled to great weight and will not be disturbed absent an abuse of discretion. Id.; AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756.

The record indicates that the parties and their daughter have been seen by a variety of professionals who have attempted to facilitate the parties’ parenting of Gabrielle and to assist Gabrielle with problems ranging from anxiety to sleep disturbances. As pointed out and relied on by Mr. Gallet, Dr. Joni Orazio, Gabrielle’s former psychiatrist, explained to the court that she felt that Ms. Breaux failed to adequately acknowledge Gabrielle’s problems and that this failure could be maltreatment. Mr. Gallet also relies on testimony expressing concern as to Gabrielle’s challenges from social workers Lisa Lincoln and Jill Yates. Along with Dr. Orazio, and social worker Danna Halpin, this group formed a “treatment team” composed to assist the members of the family.

Mr. Gallet asserts that this testimony from these members of the treatment team reveals emotional harm that could result from the continued custody plan. However, the trial court, in detailed written reasons, resolutely discounted that evidence, finding, in particular, that Dr. Ora-zio had lost objectivity during the course of her treatment of Gabrielle as revealed through a number of her actions. Similarly, the trial court rejected Mr. Gallet’s allegations as to events or parenting decisions made by Ms. Breaux. The trial court instead concluded that Mr. Gallet had “either urged the minor Rchild to make false statements against [Ms. Breaux], or the child is manipulating the situation by making up false events while in the care of her mother to please her father and gain his attention.” While the trial court acknowledged that Gabrielle suffered from anxiety, it concluded that this condition was caused by her “having to constantly report everything that occurred in her mother’s home to her father, which she was encouraged to exaggerate.”

The trial court instead relied on the opinion of treatment team member Danna Halpin who expressed that Gabrielle’s anxiety stemmed from trouble between the parents’ households. Ms. Halpin denied that her therapy with Gabrielle revealed emotional abuse. Further, the trial court positively reported the testimony of Gabrielle’s social worker at the time of trial, Ron Butcher. Mr. Butcher testified that Gabrielle was not particularly anxious, that she was happy and inquisitive, and that he felt she was relaxed with her parents when she was with them alone. He explained that the case history indicated that the child became tense when with both parents together. Mr. Butcher denied that Gabrielle evidenced emotional abuse. Instead, he suggested that she may not need to continue in therapy much longer and that the parents should work to refocus their parenting efforts.

While the trial court largely focused on its rejection of Mr. Gallet’s argument regarding Gabrielle’s emotional health, it further referenced other areas in which it found the evidence lacking. It consistently discounted the numerous occurrences that Mr. Gallet asserted demonstrated that he would be the superior domiciliary parent and/or sole custodian of Gabrielle. Our review of this record reveals no abuse of discretion in the trial court’s determination as to the continued custody order.

In addition to the numerous credibility and factual findings that are left to the trial court as the finder of fact, recall that this case required that Mr. Gallet meet the Bergeron standard. While Mr. Gallet pointed out various decisions and actions by IfiMs. Breaux that he felt endangered Gabrielle, the trial court described the nature of these allegations as “relatively minor.” The record supports this appreciation of the evidence as well as the ultimate determination that these purported events were not “so deleterious to the child as to justify a modification of the custody de-creet.]” Bergeron, 492 So.2d at 1200. Neither did that evidence constitute “clear and convincing evidence that the harm likely to be caused by a change of environment [was] substantially outweighed by its advantages to the child.” Id.

This assignment lacks merit.

Change of Health Care Professionals

Mr. Gallet also asked the trial court to review what he contends were Ms. Breaux’s “unilateral decisionfs]” to change Gabrielle’s primary care physician and to terminate the services of Dr. Orazio and in maintaining the child’s counseling with Mr. Butcher. He contends that the trial court failed to appreciate the importance of the child’s continued treatment with his choice of health providers in light of the standard set forth for such decisions in the couple’s joint custody plan, rendered in July 2008.

Mr. Gallet directs this court to a portion of that plan, which provides, in part, that “[a]ll major decisions made by the domiciliary parent concerning the child shall be subject to review by the Court upon motion of the other parent.” Mr. Gallet also quotes the portion of the plan that provides that: “In accordance with La.R.S. 9:226, joint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority.”

While Mr. Gallet focuses on the above sentences of the custody plan, we set forth a larger portion of the plan, which more fully provides that:

liWhen the minor child is in the physical custody and control of one of the parties, said party shall have the right to seek emergency medical and dental care and treatment of the minor child without the consent of the other party. When the medical and dental care and treatment of the child is of a non-emergency nature, the child shall be treated by the medical and dental health professionals chosen by the domiciliary parent and shall not be changed by the non-domiciliary parent without the express, written consent of the domiciliary parent. In the event the parties do not agree to the medical and dental care and treatment of the child that is of a non-emergency nature, then the recommendations of the treating medical and/or dental health care provider shall control. If a party does not agree with the recommendations of the treating medical and/or dental health care provider, said party may only prevent the medical and dental care and treatment by filing a Rule to Show Cause with the Court. Each party shall have the right to obtain a second opinion for any medical and dental care and treatment of the minor child, which shall be at the sole cost of the party seeking the second opinion, unless the second opinion is sought by agreement of the parties.
In accordance with La.R.S. 9:335(B)(3), the domiciliary parent shall have the authority to make all decisions affecting the child unless this Joint Custody Plan provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the Court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
In accordance with La. R.S. 9:226, joint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority.

(Emphasis added.)

After referencing the above-portion of the plan that relates to medical and dental care, the trial court maintained Ms. Breaux’s decisions regarding the health care providers for Gabrielle. In doing so, the trial court detailed Ms. Breaux’s attempts to secure health care providers who were not subject to control by Mr. Gallet. With regard to the change in the primary health care provider, the trial court concluded that Ms. Breaux’s decision was reasonable in light of the new physician’s proximity to her home, along with other things. The trial court also remarked that: “From the evidence and testimony, the Court finds that [Ms. Breaux] did inform [Mr. | yGallet] of the change in physicians either by e-mail or telephone, but that he disagreed with [Ms. Breaux’s] decision as the domiciliary parent.”

The record supports the trial court’s appreciation of both the evidence and its application of that evidence to the joint custody plan. This assignment lacks merit.

Contempt of Court

Mr. Gallet urged the trial court to find Ms. Breaux in contempt of court for a number of her actions or inactions. The trial court rejected each of these claims. On appeal, Mr. Gallet contests only one of the actions which he again contends constituted constructive contempt of court pursuant to La.Code Civ.P. art. 224.

By a 2005 judgment, which resulted from a stipulation of the parties, Ms. Breaux was prohibited from allowing Clay Bodin, the father of her son, from being “in the presence of Gabrielle Paige Gallet for any period of time longer than is required to transfer her son to and from Mr. Bodin for visitation purposes.” Mr. Gallet contends that Ms. Breaux failed to abide by this order and points to evidence indicating that both Mr. Bodin and Gabrielle attended a birthday party for Ms. Breaux’s son.

In denying Mr. Gallet’s claim, the trial court found that:

[Ms. Breaux] denied that Mr. Bodin had been around the minor child at a particular birthday party which she believed was in 2008. She testified she had photographs of the party and that Gabi was not in any of them. Also, the birthday party was on the same day as [Mr. Gallet’s] birthday, and he had visitation with []Gabi on that date. However, when [Ms. Breaux] discussed this subject with Ms. LeBlane and Dr. Orazio, she did not claim that Gabi was not at the party. Therefore, the Court finds that the minor child and Mr. Bodin were at the birthday party. However, [Mr. Gallet], who has the burden of proof in this matter, put no evidence on to indicate how long the child was in Mr. Bo-din’s presence. The fact that they were at the same party does not prove that Mr. Bodin was in the presence of Gabi for a period of time longer than was necessary to transfer [Ms. Breaux’s] son to Mr. Bodin.

IsThis finding as to the ambiguous nature of the evidence surrounding the attendance at the party is supported by the evidence. Accordingly, we find no abuse of discretion in the trial court’s denial of this claim.

This assignment of error lacks merit.

Parental Coordinator

The trial court’s judgment included an order that the parties use a parental coordinator pursuant to La.R.S. 9:358.1, which provides that: “On motion of a party or on its own motion, the court may appoint a parenting coordinator in a child custody case for good cause shown if the court has previously entered a judgment establishing child custody, other than an ex parte order.” Mr. Gallet contends that, despite their years of attempts at counseling to facilitate co-parenting, “the purpose of the co-parenting failed mainly because [Ms. Breaux] stopped it unilaterally and continually failed to cooperate.” Mr. Gal-let asserts that, accordingly, “a parental coordinator pursuant to La.R.S. 9:358.1 is a waste of time and resources.”

Indeed, in its written reasons, the trial court determined “that continued therapy of the parties is useless.” However, after it detailed the difficulties it anticipated were ahead for the parties and Gabrielle in light of past conduct, it concluded that: “The best this Court can hope for is that Gabi gets counseling she needs and that the parties can accomplish some modicum of communication. Accordingly, in the Judgment issued in this matter on August 4, 2011, the Court appointed a parenting coordinator under 9:358.1 to assist in this regard.” The trial court also detailed the parameters it established for parental coordinator, which included establishing a means of communication for the parties to confer on major decisions, minor changes or clarifications as to schedules contained in the custody plan, health care management, Rand Gabrielle’s extracurricular activities. The court’s order also related to the establishment of uniform disciplinary strategies in both households and to the establishment of similar household routines.

In light of the trial court’s concerns and the parameters established in the appointment, we do not disturb the trial court’s appointment of the parental coordinator.

This assignment lacks merit.

Costs

Finally, Mr. Gallet requests that, in the event this court determines that a remand or reversal is required, the costs assigned to him below be reassessed to Ms. Breaux. In light of our above determinations, we find no error in the trial court’s assessment of costs to Mr. Gallet.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed to the appellant, John Rene Gallet.

AFFIRMED.

      . Notably, the trial court rejected Mr. Gallet's 2005 rule to change domiciliary status, among other things. The trial court instead determined that a change in domiciliary status was not in the best interest of the child and established a physical custody schedule. Furthermore, it ordered counseling for all involved. This determination was affirmed on appeal. See Gallet v. Gallet, 06-1594 (La.App. 3 Cir. 5/2/07), 955 So.2d 277.
      Subsequently, Mr. Gallet sought sole custody. Because the then-existing custody regime resulted from a considered decree, the trial court applied the Bergeron v. Bergeron, 492 So.2d 1193 (La.1986) criteria and determined that Mr. Gallet failed to meet that standard. This court affirmed that decision on appeal. See Gallet v. Gallet, 08-1347 (La.App. 3 Cir. 3/4/09), 10 So.3d 255.

      . Mr. Gallet contests only the assignment of the parental coordinator, not the parameters established as to the coordinator’s duties. We include these for discussion purposes.


source: Caselaw Access Project

author: BROWN, Chief Judge. CARAWAY, J.,

license: Public Domain

text:
    Robert CASKEY and Kathy Caskey, Plaintiffs-Appellees v. MERRICK CONSTRUCTION CO., INC., and the State of Louisiana through the Department of Transportation and Development, Defendants-Appellants.
    No. 46,886-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2012.

      Theus, Grisham, Davis & Leigh, Monroe, LA, by Phillip D. Myers, for Appellants.

      Johnson & Placke, L.L.P., West Monroe, LA, by Allan L. Placke, for Appellees.
    Before BROWN, CARAWAY and DREW, JJ.
   BROWN, Chief Judge.

11While driving home in the early morning hours of July 1, 2004, plaintiff, Robert Caskey, hit a tree in the road that had fallen from a road construction servitude adjacent to the roadway. Caskey and his wife Kathy filed suit against Merrick Construction Co., Inc., the contractor which had been removing trees from the location. A jury assessed Caskey with 79% fault and Merrick Construction with 21% fault and awarded damages. The trial court granted plaintiffs’ Motion for Judgment Notwithstanding the Verdict (“JNOV”) finding Caskey free from fault and assessing the damages to Merrick Construction. The jury’s low awards for damages were also increased. This appeal ensued. We affirm.

Facts

At approximately 11:00 p.m. on June 30, 2004, Robert Caskey drove from his home in Jonesboro to Monroe, Louisiana, to retrieve newspapers for his wife’s paper delivery job. Upon his return home at approximately 2:00 a.m., shortly after Caskey exited a curve on LA Highway 4 West, his truck struck a tree that had-fallen across both lanes of travel. Caskey testified that he was traveling at approximately 45 miles per hour with his bright lights activated when the collision occurred. Caskey noticed the tree when he was approximately eight feet from it. He recalled that his truck moved upward and he saw a limb as his vehicle “went into the fork of that tree.” The truck hit the limb again, “went back down” and “stopped.” Photographs of the truck depict that most of that damage was on the driver’s side windshield and roof. The driver’s side air bag deployed. Caskey was able to climb out of the window.

12Four Jackson Parish Sheriffs employees responded to the scene. Caskey was transported to a local hospital where he was treated and released. A storm had passed through the area on the evening of the accident. However, at the time of the accident the storm had ended.

The Louisiana Department of Transportation and Development (“DOTD”) had begun a project for the repair of bridges along Highway 4 when this accident occurred. To reconstruct the bridge for site 7, the DOTD purchased temporary construction servitudes from private individuals and contracted with Merrick Construction for the clearing and grubbing of the land. At the time of the accident Merrick Construction was in the process of clearing the servitude. Work on the bridge had not yet begun, and the detour road had not yet been built.

The tree which fell on the road was located within the DOTD construction servitude. The location was a wet and marshy ground. The tree was described as a water oak with a shallow root system and was estimated to be between 70 and 85 feet tall. The last clearing work that Merrick Construction had performed at the site was on June 17, 2004, and due to equipment repair the work had halted. A DOTD project manager had last inspected the site on June 14, 2004.

On August 20, 2004, Robert and Kathy Caskey filed suit against the DOTD and Merrick Construction. The DOTD was dismissed from the suit by summary judgment which was affirmed by this court in Caskey v. Merrick Construction Co., Inc., 41,662 (La.App.2d Cir.01/24/07), 949 So.2d 560, writ denied, 07-0576 (La.05/04/07), 956 So.2d 619. Jury trial | ¡¡proceeded against the contractor in April of 2010. The jury verdict assessed Caskey with 79% fault and Merrick Construction with 21% fault. The jury awarded Caskey general damages of $1,872.50, past, present and future medical expenses of $3,150 and loss of consortium damages of $472.52 to Kathy Caskey.

Thereafter, plaintiffs filed a motion for JNOV seeking an assessment of 100% fault to Merrick Construction and an increase in the damage awards. After considering the arguments of counsel, the trial court granted JNOV in favor of the Cas-keys, assigning Merrick Construction with 100% fault. The court increased the general damage award to $150,000, the medical expenses to $24,587.45 and Mrs. Cas-key’s loss of consortium award to $25,000. The trial court additionally awarded Cas-key loss of enjoyment and quality of life damages of $25,000. It is from this judgment that Merrick Construction has appealed.

Discussion

Liability

Defendant first argues that both the jury’s verdict and the trial judge’s JNOV ruling were manifestly erroneous as the evidence showed Merrick Construction to be free from fault. In making this argument, defendant asserts that the tree fell as the result of an act of God. Alternatively, defendant asserts that it is immune from liability by virtue of La. R.S. 9:2771.

Under Louisiana’s duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her [4conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages. Christy v. McCalla 11-0366 (La.12/06/11), 79 So.3d 293; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.04/03/02), 816 So.2d 270.

An act of God in the legal sense acts as a defense sufficient to excuse the defendant’s neglect of a duty and relieve him of liability for injury. Southern Air Transport v. Gulf Airways, 215 La. 366, 40 So.2d 787 (La.1949); see also Hanks v. Entergy Corp., 06-477 (La.12/18/06), 944 So.2d 564.

La. R.S. 9:2771 provides as follows:

No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.

Immunity statutes are strictly construed against the party claiming the immunity and must not be extended beyond their obvious meaning. Monteville v. Terrebonne Parish Consolidated Government, 567 So.2d 1097 (La.1990).

|fiThis statute departs from the more general standard that every construction contract be performed in a good, workmanlike manner, free from defects in materials and workmanship. Allstate En terprises, Inc. v. Brown, 39,467 (La.App.2d Cir.06/29/05), 907 So.2d 904. It provides a safe harbor to the contractor so long as plans and specifications are not provided by him. A contractor who strictly adheres to plans or specifications furnished to him is relieved of liability to third persons when the contractor has no reason to believe that alleged deficiencies contained in such plans and specifications would lead to a dangerous condition. Dumas v. Angus Chemical Co., 81,399 (La.App.2d Cir.01/13/99), 729 So.2d 624; Arnold v. Our Lady of the Lake Hospital, Inc., 562 So.2d 1056 (La.App. 1st Cir.1990).

At the trial of this matter, the jury reviewed photos of the fallen tree and work site and heard the testimony of forestry experts, the project managers and state inspectors.

Gordon Thomas, the DOTD project supervisor for the bridge work, confirmed that Merrick Construction was hired to clear and grub the construction servitude and that it had been given construction plans for the project. Thomas learned of the accident late in the morning of July 1, 2004, hours after the accident. He traveled to the site to take measurements and photographs. The measurements were made from the centerline of the road to the center of the hole left by the tree, for a distance of 55 feet. Thomas concluded that the tree that fell was located within the construction servitude. Its location was right at the beginning of the right-of-way area | fiwhere the eventual detour route for the existing roadway would start and act as a bypass during the bridge replacement.

Thomas recalled that the road and the servitude were wet because a storm had gone through the area the night before the accident. Thomas testified that he believed the tree had a shallow root system and that the area was low, wet and marshy. He identified certain photographs (some of which he took and others taken by the Caskeys’ son) of the location which were introduced into evidence. The photos reveal that recent dirt work and tree removal had occurred adjacent to the tree, leaving it on the eastern edge of where the detour route was to begin. From these photographs, Thomas testified that it “looked” like the area around the tree had been “worked over” by heavy equipment. Thomas identified a close-up photograph of the tree that fell and identified a mark on the tree where something had hit it. He opined that heavy equipment made the mark on the tree.

Thomas testified that at the time of his last inspection in June, the tree in question was still standing and at that time he did not believe that the tree was hazardous. Thomas considered that wind from the storm may have caused the tree to fall, but he agreed that the very old tree had withstood previous storms. He did not find any other trees along the servitude that had blown down. Finally, Thomas agreed that the removal of tree buffers, the location of a tree in a low marshy area and the striking of the tree by heavy equipment would all increase the risk of the tree falling.

Roderic Roy Rozas, Merrick Construction’s field project superintendent for site 7, testified that he learned that the tree was located 17within the construction servitude six years after the accident. He went to the location the morning of the accident when Thomas was there, but did not take any photographs or measurements. Rozas did not recall that the tree posed any threat before it fell. He did not believe that the tree in question was the only tree left on the servitude. Rozas stated that he had received no instruction from Thomas to remove the tree.

Rozas agreed that the gouge mark appeared to be made by heavy equipment. He explained that a track hoe was used to remove trees from the site because the location was very wet. With the track hoe, a Komatsu 800, the root system of the tree would be broken up about six inches from the base of the tree on three sides. The bucket of the track hoe would then be placed about halfway up the trunk of a tree and pushed against it, which would cause the tree to topple over. Rozas testified that the Komatsu 300 had received body damage so it had been sent in for repairs. The last work done on the site by Merrick Construction occurred on June 17, 2004.

Claude Hughes, plaintiffs’ forestry expert, determined that the tree which fell was an 85 foot tall, 70-year-old water oak. Hughes testified that the root system of the tree was very shallow because it was growing in a wet place. Hughes explained that in marshy areas, the operation of heavy equipment over soil can disturb the root system as close to the surface as 8 to 10 inches. Hughes stated that a tree of that size with a shallow root system would not require a lot of force to take it down. From his review of the photographs, Hughes testified that he believed that the roots of the felled tree had been scraped or damaged. The removal of the buffer trees on two 18sides also weakened the tree and made it more susceptible to falling over. Hughes believed that the storm produced no significant wind due to the fact that no other trees were blown down in the area. With the buffers gone and the tree’s shallow root system, Hughes did not believe that a strong wind would have been necessary to blow this tree down especially with its damaged roots. Hughes reviewed a photograph of the fallen tree and explained that he saw a sort of a square cut where the root ball was missing. In his opinion this was consistent with something cutting through part of the root system. Hughes also opined that an oak tree in a low, wet, marshy area with damaged roots and no surrounding buffer trees created a potential falling hazard to motorists using Highway 4. He testified that Merrick Construction should have certainly known about the hazard posed by such a tree.

John Adams testified as defendant’s expert in forestry and bottomland hardwood trees. Adams reviewed the photographs and depositions and twice traveled to the scene. Adams testified that in his 30 years’ experience he had seen many healthy trees uprooted with surrounding trees still standing. He explained that the reason healthy trees fall is wind throw. Adams testified that if he had gone out to the site on June 30, 2004, he would not have been able to predict that the tree would fall. Nor did he think that anyone could predict that a storm would cause the tree to fall. Adams testified that the gouge mark had nothing to do with the tree falling because the size of the gouge mark would not affect the tree’s root system. He admitted that a 36-ton piece of equipment could tear up the root system li)Of the tree, but it depended upon how much the roots were run over by the equipment. He was unable to determine if the equipment in question tore up the roots in this case. Adams agreed that if the roots of the tree were destroyed and the buffers were removed, the wind from a storm could blow the tree down. He could not say that the tree would fall because he had seen trees with disturbed roots last for 50 years. Adams opined that in this case the tree fell because of the windstorm.

The evidence shows that at the time of the accident the detour route in the servitude area was in its initial phase of construction with the ground having been recently disturbed by the heavy track hoe. The remains of brush and tree limbs were scattered around the base of the fallen tree. Merrick Construction had a duty to exercise caution in its clearing work around the tree so that the root system of the tree, which was extremely shallow, would not be damaged. The tree’s location near the existing highway, which had not yet been closed for the detour, enhanced the risk that any damage or trauma to the tree could cause a traffic hazard, especially considering the tree’s shallow root system and defendant’s removal of buffer trees from two sides of the tree.

The act of God defense involves a “but for” analysis stated by the Louisiana Supreme Court in Saden v. Kirby, 94-0854 (La.09/05/95), 660 So.2d 423. Clearly, violent storms or other events in nature can be recognized as the prevailing cause of damage. However, storm winds of a lesser degree may not act as a defense if the damage would not have occurred but for the defendant’s conduct or omission which combined with | inwind in causing the damage. Saden, supra; Brantley v. Tremont & Gulf Railway Co., 226 La. 176, 75 So.2d 236 (La.1954); see also Hanks, supra.

In finding Merrick Construction at fault, the jury and the trial judge could easily have determined that the winds in question on the night of the storm were not so extreme as to demonstrate an overpowering act of nature. No other trees in the area were shown to have fallen. The disputed fact issue concerned the damage to the tree’s root system and its exposure to more wind because of Merrick Construction’s clearing work around the tree’s base. We find that the factual conclusion that the tree root system had been weakened was not unreasonable or clearly wrong. In combination with the storm’s wind, Merrick Construction’s failure to exercise reasonable caution regarding the tree, caused the tree to fall and amounted to fault.

We further disagree with Merrick Construction’s assertion that the immunity statute, La. R.S. 9:2771, applies in this case. The skill and expertise required for Merrick’s employment of its work efforts around the tree did not involve a “work according to plans and specifications” furnished by the DOTD. We will not interpret this immunity statute so broadly as to abrogate defendant’s general duty to act reasonably in the employment of its skills on this construction site.

Grant of JNOV: Liability/Fault

Defendant asserted as an affirmative defense comparative fault on the part of Cas-key. In determining liability, the jury assessed Merrick Construction with 21% fault and Caskey with 79% fault. The trial judge |; Reversed that finding in its JNOV ruling and found no fault on the part of Caskey. Defendant has appealed from this ruling.

La. C.C.P. art. 1811 provides for the JNOV procedure. A trial court is authorized to grant a JNOV on the issue of liability or damages or both. La. C.C.P. art. 1811(F); Robinson v. Fontenot, 02-0704, 02-0733 (La.02/07/03), 837 So.2d 1280. The supreme court in Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94, noted that in Scott v. Hospital Service District No. 1 of St. Charles Parish, 496 So.2d 270 (La.1986), the court set forth the criteria in determining when a JNOV is proper. According to the court, JNOV is proper when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. See also, Wegener v. Lafayette Insurance Co., 10-0810, 10-0811 (La.03/15/11), 60 So.3d 1220; Lastrapes v. Progressive Security Insur ance Co., 10-0051 (La.11/30/10), 51 So.3d 659.

The standard for reviewing a JNOV is the manifest error standard. Martin v. Heritage Manor South Nursing Home, 00-1023 (La.04/03/01), 784 So.2d 627; Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84. A motion for JNOV presents the legal question of whether there is sufficient evidence to support a jury verdict. Holt v. Cannon Express Corp., 31,271 (La.App.2d Cir.12/11/98), 722 So.2d 433. In reviewing the JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. Martin, supra; Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991). The appellate court uses thejjgsame criteria as the trial court to determine if the trial court properly granted a JNOV, i.e., do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? After determining that the trial judge correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Martin, supra; Davis supra, Anderson, supra.

Individual drivers have a duty to operate, control, and use their automobiles reasonably, and to maintain a proper lookout for hazards which might pose an unreasonable risk of harm. Stone v. Bullard, 43,996 (La.App.2d Cir.01/28/09), 2 So.3d 1241. A driver may generally assume that the road is safe for travel and he is not required to anticipate unexpected obstructions in his lane to traffic which are, under the circumstances, difficult to discover. Wimberly v. McCoy Tree Surgery Co., 33,761 (La.App.2d Cir.08/25/00), 766 So.2d 729. A driver who uses a public state highway at night is not charged with the duty of guarding against an unexpected or unusual obstruction which he had no reason to suspect he would encounter and which was difficult to see. Davis v. Smith, 35,117 (La.App.2d Cir.10/02/01), 796 So.2d 765, writ denied, 01-2887 (La.01/25/02), 807 So.2d 250.

As noted above, in reviewing the record de novo, this court uses the same criteria used by the trial judge in granting JNOV to determine whether the trial judge erred in granting JNOV to the jury’s apportionment of fault. We find that the trial court properly granted plaintiffs’ motion for JNOV on |13the issue of fault, having concluded that there is no reasonable view of the evidence which permits the jury’s determination that Caskey was 79% at fault for the accident. See, Chisholm v. Clarendon National Insurance Co., 37,022 (La.App.2d Cir.07/09/03), 850 So.2d 1070, writ denied, 03-2608 (La.01/09/04), 862 So.2d 983.

The following is excerpted from the trial court’s written Reasons for Judgment in support of its JNOV grant:

The area where the accident occurred is located in rural Jackson Parish. There are woods on both sides of the road. There is no lighting in the area. Prior to the accident, a storm had occurred and it had been raining. The investigating officer described the lighting as “pitch black.” The accident occurred outside of a long curve in the road as one traveled to Jonesboro. Mr. Caskey testified that he was traveling 45 miles per hour (speed limit is 55), he had his lights on bright, and saw the tree about a car’s length away before he collided with it and he was unable to stop.
Mr. Caskey was quite candid in his testimony about his prior osteoarthritic condition. He acknowledged taking a Lor-tab at approximately 6:00 p.m. on the night of June 30, approximately seven and one-half to eight hours prior to the accident. He had taken the prescription medication for years and was not restricted by any physician from driving. There was no evidence he was driving erratically prior to the accident either on the trip to Monroe or on the return trip to Jonesboro, until he encountered the oak tree blocking the road. (Emphasis added).
The accident was investigated by Deputy George Jones of the Jackson Parish Sheriffs Office. The court finds that Deputy Jones is an experienced accident investigator. Deputy Jones testified that he received the call about the accident at approximately 2:00 a.m. on the morning of July 1. He described the lighting at the scene as “pitch black.” He observed the tree in the road and the Caskey vehicle. He found that Robert Caskey had not committed any traffic violation. No traffic citations were issued. He observed Mr. Caskey and found that he was normal and that he was not operating the truck while impaired. Deputy Jones also testified that the conditions and visibility that night were such that he would have run into the tree himself if he had not received the call and known the tree was in the roadway. Deputy Jones was the only eyewitness to the conditions that existed that night to testify. The defendants called no witnesses \uto dispute either his or Robert Caskey’s testimony concerning the conditions on the night of the accident or the accident itself. (Emphasis added).

The trial court did not err in granting plaintiffs’ motion for a JNOV. There is absolutely no evidentiary support for Merrick Construction’s contention that Caskey caused or contributed to the accident. The testimony showed that the accident occurred at approximately 1:30 a.m. on a rural portion of a state highway. There was no lighting in the area. It had been rainy and stormy the night of the accident and the roadway was wet. The uncontradicted evidence showed that Robert Caskey exercised the appropriate degree of care expected of a driver under the particular conditions and potential hazards existing at the time.

As for defendant’s contention that Cas-key was impaired and that this condition caused or contributed to the accident, we likewise find no evidence to support this claim. Although he had taken a prescription-strength narcotic for a chronic osteo-arthritic condition approximately eight hours prior to the accident, there was no evidence that his driving was in any way impaired. Deputy Jones specifically stated that he observed Caskey and found him to be normal and not operating his vehicle under impaired conditions. As noted by this court in Smeby v. Williams, 37,845 (La.App.2d Cir.12/10/03), 862 So.2d 381, 382, the relevant inquiry in such a case is whether consumption of alcohol, or, as in this situation, a controlled substance, impaired plaintiffs driving. As in Smeby, there is no evidence to support the conclusion that Caskey was impaired at the time of the accident.

| KGrant of JNOV: Damages

Defendant has also appealed from the trial court’s grant of JNOV increasing the damages awarded to plaintiffs, Robert and Kathy Caskey.

A JNOV is the procedurally correct device for raising or lowering an unreasonable damage award. La. C.C.P. art. 1811; Fox v. Layton, 42,491 (La.App.2d Cir.10/17/07), 968 So.2d 302. When the trial court has determined that a JNOV is warranted because reasonable men could not differ on the fact that the award was either abusively high or abusively low, it must determine what is the proper amount of damages to be awarded. The trial court is to make a de novo award based upon its independent assessment of damages. Anderson, supra; Fox, supra.

If the appellate court determines that the trial court properly granted the JNOV, i.e., that reasonable men must find that the jury award was an abuse of discretion, the trial court’s damage assessments are reviewed under the standard set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). See Anderson, supra; Wilson v. National Union Fire Insurance Co. of La., 27,702 (La.App.2d Cir.12/06/95), 665 So.2d 1252.

Before an appellate court can disturb an award made by a trial court, the record must clearly show that the trier of fact abused its discretion in making its award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993); Coco, supra. Only after finding that the lower court abused its vast discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point that is reasonably within the discretion of the trial court. Coco, supra. As noted |1fiby the court in Coco, 341 So.2d at 335-36, “It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.... [I]t is impossible for an appellate court to judge what evidence in a particular case was given special weight by the finder of fact.”

We find that the trial court properly granted plaintiffs’ motion for JNOV on the issue of damages. The award by the jury in this case was abusively low.

As noted by the trial court, Dr. Rebecca Crouch, Caskey’s treating physician, was the only doctor who testified (via videotaped deposition). There was no medical testimony or evidence whatsoever offered by Merrick Construction concerning the injuries Caskey received as a result of the accident. Therefore, as found by the court, Dr. Crouch was in the best position of any of the witnesses to testify about Caskey’s medical condition before and after the July 2004 accident as well as the injuries caused by the incident.

Dr. Crouch stated she treated Robert Caskey for a number of years before his July 2004 accident for osteoarthritis, which is a degenerative bone and joint disease. Dr. Crouch also treated Caskey for injuries he sustained as a result of his July 1, 2004, accident beginning on the morning of the accident and for the next six years up through the trial. Dr. Crouch observed that Caskey had been a patient for a number of years before his accident, and that at the time of the incident he was currently in treatment for osteoarthritis. On July 1, 2004, after first being treated at the local | ^emergency room, Caskey presented to Dr. Crouch with initial complaints of neck and shoulder pain. However, by his second visit, he was reporting constant and heightened pain in his neck and lower back.

Dr. Crouch testified that before his accident, Caskey experienced few if any problems with his back other than his osteoarthritis. After his July 2004 accident, however, Dr. Crouch observed muscle spasms from T-10 to L-3 on the left side and from T-12 to L-3 on the right side of Caskey’s spine. . A positive straight leg raising test showed that Caskey was having a problem at the Ll-2 level of his lumbar spine.

When her patient did not have any improvement, Dr. Crouch referred him to the Jackson Parish Therapy Center for physical therapy, which he did from August 20, 2004, through November 2, 2004. An MRI performed on September 30, 2004, showed a herniated disc at Ll-2. Dr. Crouch opined that it was more probable than not that Caskey’s collision at a speed of approximately 45 mph caused his herniated disc.

Because his pain doubled in intensity following his accident, Dr. Crouch prescribed 3-A Lortabs daily to control Cas-key’s pain, whereas prior to the incident he was only taking 1-2 Lortabs daily. She also prescribed a muscle relaxer which he had not needed prior to the accident. For the first couple of years following the accident, Caskey required more frequent cortisone injections. According to Dr. Crouch, Caskey will be taking the increased dosage of pain medication for the rest of his life. Due to a serious |18heart condition and chronic lung disease, Caskey is not a candidate for back surgery which is the typical treatment for a ruptured disc.

Dr. Crouch testified that the accident severely aggravated Caskey’s underlying, pre-existing osteoarthritis. With an acceleration in the osteoarthritic condition precipitated by the accident, Caskey could be expected to have future problems with increased pain and inflammation. This pain has already reduced his mobility, which increases the possibility for complications from his heart and lung problems.

Defendant offered no medical evidence whatsoever to contradict the testimony of Dr. Crouch, Robert Caskey’s treating physician. Caskey’s outpatient record from 1997 shows that at that time, his problem was with a disc herniation at the S-l nerve root. The MRI done after the July 1, 2004, accident shows injury at Caskey’s Ll-2 level, which is nowhere near the S-l nerve root. Furthermore, while Dr. Crouch could not pinpoint the exact date of the rupture at Caskey’s Ll-2 just by looking at the MRI films, based upon his complaints and description of the accident, as well as x-rays and the MRI, it was Dr. Crouch’s opinion that this injury was more probably than not caused by the accident. She further opined that the accident caused severe aggravation to Caskey’s preexisting osteoarthritic condition. According to Dr. Couch, because of acceleration in the condition caused by the accident, Caskey would have problems with increased inflammation and pain in the future.

Robert Caskey testified that immediately after the accident, he started getting stiff and tightening up. He went by ambulance to the Jackson Parish |19Hospital, where x-rays were taken and he was referred to Dr. Crouch for a follow-up visit later that morning. She sent him to physical therapy for a couple of months which helped with the pain. He returned, however, to Dr. Crouch still experiencing constant low back pain. According to Caskey, the accident changed his life. His pain level is greater and he now has muscle spasms, something he never had prior to the accident. Caskey described the pain as being on his left side and leg and in his hip across his lower back. At times he has neck pain and headaches and sometimes he gets numbness in his fingers. He testified that he also experiences sciatic nerve pain. He takes muscle relaxers in addition to the painkillers he was already taking on a daily basis. He is unable to garden, fish, hunt, travel, or work on his car at the level he could enjoy before the accident. While he can still spend time with his six grandchildren, since the accident he cannot be active with them like he was before. Cas-key testified that his pain also prevents him from getting a good night’s sleep. He has periods of time when he is unable to dress himself. While he can bend with a lot of care, he can’t do so without feeling pain and has lost mobility. Caskey is able to shower, although he cannot take a bath. Caskey related that the frequency of sexual relations with his wife has decreased.

Kathy Caskey testified as of the time of trial, she and her husband Robert had been married 40 years. On the night of her husband’s accident she received a call from the Sheriffs Department telling her that her husband had been involved in an automobile accident. Her son drove her to the scene and she saw her husband’s truck. She spoke with Caskey who 1 20was dazed and went with him to the hospital. The day following the accident, Mrs. Cas-key recalled that her husband was in a lot of pain and he was stiff. Kathy Caskey confirmed that since the accident, her husband’s pain has continued to get worse, limiting his activities such as hunting, doing yard work and helping around the house. He sometimes has trouble sleeping, which causes her difficulty sleeping and prevents either of them from getting rest. Mrs. Caskey stated that before the accident, her husband had struggled with back pain but not the level of pain he experienced after the accident. Their sex life has been negatively affected in that her husband is in lots of pain and she stresses because she worries that sexual activity would hurt him or cause undue injury. Mrs. Caskey stated that he husband is not as playful with her or the grandchildren anymore either since the accident.

One injured through the fault of another is entitled to full indemnification for damages caused thereby. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70; State Farm Mutual Automobile Insurance Co. v. Berthelot, 98-1011 (La.04/13/99), 732 So.2d 1230. A defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Wainwright, supra. Although the damages caused are greater because of a prior condition of the victim which is aggravated by the tort, the tortfeasor is, nevertheless, responsible for the consequences of his tort. Britt v. City of Shreveport, 45,513 (La.App.2d Cir.11/03/10), 55 So.3d 76. Before recovery can be granted for aggravation of a pre-existing condition, a causative link between 12i the accident and the victim’s current status must also be established. Edwards v. LCR-M Corp., Inc., 41,125 (La.App.2d Cir.07/12/06), 936 So.2d 233.

(1) General Damages

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 So.2d 670, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompany an injury. McGee v. A C & S, Inc., 05-1036 (La.07/10/06), 933 So.2d 770. The elements of physical pain and suffering and associated mental anguish are conceptually related and to a large extent overlapping, and therefore difficult to precisely distinguish. Harris v. Delta Development Partnership, 07-2418 (La.App. 1st Cir.08/21/08), 994 So.2d 69.

Also included in general damages can be an award for loss of enjoyment or quality of life. Miller v. Lammico, 07-1352 (La.01/16/08), 973 So.2d 693; Britt, supra. These damages refer to the detrimental alterations of a person’s ability to participate in the activities or pleasures of life that were formerly enjoyed. McGee, supra.

| a2After carefully considering the evidence relating to Caskey’s injuries and their effect on his life, we cannot say that the trial court’s award of $150,000 for pain, suffering, mental anguish and distress and disability and $25,000 for loss of enjoyment or quality of life constitutes an abuse of its vast discretion.

(2) Loss of Consortium

In general, a claim for loss of consortium has seven elements: (1) loss of love and affection, (2) loss of society and companionship, (3) impairment of sexual relations, (4) loss of performance of material services, (5) loss of financial support, (6) loss of aid and assistance, and (7) loss of fidelity. To be compensable, it is not necessary for a claim for consortium to include damages from each type of loss. Britt, supra; Crownover v. City of Shreveport, 43,521 (La.App.2d Cir.09/17/08), 996 So.2d 315. Proof of any one of these elements is sufficient to support an award of loss of consortium damages. McNeill v. Landstar Ranger, Inc., 43,362 (La.App.2d Cir.06/11/08), 986 So.2d 905, writ denied, 08-1558 (La.10/10/08), 993 So.2d 1287.

In the instant case, the trial court noted that Robert and Kathy Caskey had been married for 40 years as of the time of trial. Both testified to an active sex life prior to the accident, and that since the incident, their sex life was basically nonexistent. The court observed that after the accident, Caskey could no longer mow his yard or take care of the garden, change the oil in their vehicles or help with the shopping. Caskey was not able to get a good night’s sleep and would often sleep in a separate room. Kathy Caskey Instated that the injuries her husband received in the accident had caused a significant change in their lifestyle.

The trial court’s award of $25,000 is supported by the evidence and is not an abuse of discretion.

(3) Past, Present, and Future Medical Expenses

Under Louisiana law, a tort victim may recover past (from injury to trial) and future (posttrial) medical expenses caused by tortious conduct. Menard v. Lafayette Ins. Co., 09-1869 (La.03/16/10), 31 So.3d 996; Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 7.02[1], 7-5 (Michie 2009). A plaintiff bears the burden of proving special damages by a preponderance of the evidence. In meeting this burden of proof on the issue of future medical expenses, the plaintiff must show that, more probably than not, that these expenses will be incurred and must present medical testimony that they are indicated and the probable cost of these expenses. Daigle v. City of Shreveport, 46,429 (La.App.2d Cir.10/05/11), 78 So.3d 753, writ denied, 11-2472 (La.02/03/12), 79 So.3d 1027. In the instant case, we find the trial court’s award of damages to be reasonable. The money awarded for Caskey’s past medical expenses, $14,745.45, is accurate considering the evidence of the bills submitted by plaintiffs for the ambulance and treatment the morning of the accident, physical therapy, an MRI, Dr. Crouch’s treatment, and prescription medication.

As for future medical expenses, Dr. Crouch testified that Caskey will continue to take increased pain medication as a result of the accident. ^Considering that Caskey will have to take pain medication for the rest of his life, that the cost of his medication in 2009 was $1,406, and that one-half of that amount was $703, the court found Caskey to have a reduced life expectancy of 14 rather than 20 years based upon his pre-existing conditions of osteoarthritis, heart disease and lung problems and awarded $9,842 (14 times $703) for future medical expenses for pain medication for 14 years. We find no abuse of the trial court’s discretion in this award.

Conclusion

For the foregoing reasons, the trial court’s judgment is AFFIRMED. Costs of this appeal are assessed to defendant-appellant, Merrick Construction Co., Inc.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

hi respectfully dissent from the majority’s ruling.

In this case, the jury found the plaintiff Caskey partially at fault for not seeing the tree in the road. The judiciary has now found no fault. The jury viewed the plaintiff as suffering from a long history of a disabling disc condition before the accident. The trial court and the majority found that a ruptured disc occurred in the accident.

The jury’s verdict rests on those two factual rulings which the trial judge and the majority have now determined that reasonable people could not have rendered. In order for the jury’s verdict to be erased by the trial judge, that is indeed the test of his authority for the JNOV ruling. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991); Daye v. General Motors Corp., 29,118 (La.App.2d Cir.5/21/97), 712 So.2d 120, rev'd on other grounds, 97-1653 (La.9/9/98), 720 So.2d 654; Jackson v. A.L. & W. Moore Trucking, 609 So.2d 1064, 1071 (La.App. 2d Cir.1992). On the other hand, if the jury received evidence of “such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions” from the trial judge’s JNOV rulings, then the JNOV was improper. Anderson, supra at 832.

In determining whether the trial judge erred in granting the JNOV, the appellate court’s standard of review is de novo in that the court must again review all facts in the light most favorable to the jury’s conclusions which the trial judge overturned. Daye, supra. The motion for JNOV presented the trial- judge a legal question of whether there was sufficient evidence to ^support the jury’s verdict. That same legal question must be reviewed again by the appellate court by determining whether the jury’s verdict is supported by competent evidence and is not wholly unreasonable. Id. Just as the trial judge in considering the motion for JNOV may not substitute or elevate his views on credibility or the inferences from the evidence over other reasonable choices of the evidence which the jury had to weigh, our appellate review of the JNOV, giving no deference to the trial judge’s factual conclusions, considers the evidence anew (de novo) resolving all reasonable inferences, factual disputes and credibility evaluations in the light most favorable to the jury’s verdict in the determination of whether reasonable people could have reached that verdict. Id.

The first fact issue concerns Caskey’s contributory fault in the accident. Was the jury’s verdict that Caskey was partially at fault in the accident one which reasonable people could have not rendered? Importantly, any judicial reaction to the jury’s odd assessment of 79% of the fault against Caskey is not appropriate. The apportionment of fault is not the threshold inquiry. The question is whether Caskey can be considered partially at fault in the accident regardless of his percentage of fault. I find that a reasonable view of the evidence supports a conclusion of contributory fault.

A most important fact admitted by Cas-key is that he only first saw the tree 8 feet from striking it and made no reaction. As Caskey’s vehicle approached the fallen tree, the rural roadway was dark and it was possibly | gaining. Nevertheless, there was no fog hindering visibility and, with the brunt of the storm having passed, the rain was not described by any witness as a heavy downpour. Caskey’s report of his speed at 45 miles per hour is also not in question. Thus, under these conditions, it is reasonable to conclude that without any other factor, Caskey should have seen the tree and its leaves and branches before his vehicle was only 8 feet from striking it.

Caskey’s argument to this court discusses a curve in the road even though his testimony at trial did not place any emphasis on the sudden appearance of the tree as he was rounding the curve. While the photos of the site show a curve beyond the fallen tree, the distance to the curve indicates that Caskey’s vehicle would have been directly approaching the tree for a much greater distance than 8 feet. I recognize that the depth perception issue surrounding a photo requires an actual measurement for accuracy. Yet, there was no evidence presented by Caskey of the measurement of the distance from the fallen tree to the curve, and the indication of the distance gained from the photos favors a view that Caskey’s vehicle was approaching the tree straight on for some distance with his bright lights illuminated. Also, the DOTD’s map of the construction site shows Highway 4 extending eastward without depicting a curve for an unspecific distance from where the servitude began and the tree fell. The jury therefore could reasonably conclude that Caskey had exited the curve and should have seen the tree from a much greater distance than 8 14feet and been able to have reacted and slowed the vehicle. Such inattentiveness, possibly connected with Caskey’s medications, was weighed by the jury and determined to amount to contributory fault by Caskey.

Next, there is a vast difference between the jury’s award of $1,872.50 in general damages and the JNOV awards of the trial judge of $175,000 (pain and suffering and loss of enjoyment of life). This is explained by the second critical fact dispute which concerns the specific injury which plaintiff suffered. The trial court specifically found that Caskey suffered a herniated disc in the accident, a new and severe injury. Merrick presented evidence of Caskey’s long history of degenerative lumbar disc disease, his previous diagnosis of the herniated disc condition, and his prior disability. The jury obviously found that no disc injury occurred in the accident. Under the previously cited JNOV law, the question for resolution of this disputed issue of fact is whether reasonable people could have arrived at a verdict that no disc herniation resulted from the accident.

The 58-year-old plaintiff has been disabled since 1983 and receiving supplemental social security benefits. Caskey testified that he began to have symptoms of osteoarthritis in 1995 and started seeing Dr. Rebecca Crouch. Caskey admitted that in 1995, before he began treatment with Dr. Crouch, he had been diagnosed with a herniated disc. By December of 2001, because Caskey had established a pattern of refilling his prescriptions so | Bquickly, Dr. Crouch refused to issue any further refills of the narcotics. Dr. Crouch testified that she believed Caskey was getting addicted to the Lorcet. She talked with Caskey about taking the medication as ordered as well as pain management.

In contradiction and asserted impeachment of Dr. Crouch’s conclusion regarding the occurrence of the disc herniation, Merrick offered the following written reports from Caskey’s medical records:

(i) April 2, 2008 letter from Dr. Crouch to Caskey’s attorney in which she discussed Caskey’s pre-existing osteoarthritis and previous back x-ray of 2001. She also stated that post-accident x-rays showed the narrowed space at L1-L2. She stated that “it [was] possible that the damage to the disc could have occurred then. However, this disc degeneration could have also occurred over the 3 years in-between.” In a closing summary to the letter, Dr. Crouch concluded that “no definite statement regarding the timing of the disc herniation whether pre-injury or post-injury can be made.”
(ii) May 12, 1997 letter from Dr. Scott Wiggins, Caskey’s cardiologist, in which Dr. Wiggins informs another physician that Caskey “state[d] he has chronic low back pain, for which he is seeing you, and that he may end up requiring back surgery in the future for a ‘slipped disc.’ ”
(iii)December 15, 1997 Louisiana State University Medical Center Outpatient Clinic Record which indicated MRI results as “mild broad band disk herniation which contacts but does not deform thecal sac and SI nerve root changes.”

From this evidence, the jury could arrive at the contradictory verdict that Cas-key had the herniated disc condition before the accident and that the accident served to aggravate his existing disabling condition. Thus, as in the recent Supreme Court ruling in Guillory v. Lee, 09-0075 (La.6/26/09), 16 So.3d 1104, where the court of appeal improperly had replaced the jury’s view of the disc injury for its own, the reinstatement of the jury’s ruling for an aggravation of plaintiffs existing disability is proper. While 11 ¿would agree that the jury’s low quantum award was an abuse of its discretion, such conclusion does not justify the amendment of the jury’s verdict with a finding of a completely different injury.

      . On cross-examination Dr. Crouch testified about Caskey’s long history of back problems. However, she stated that there were no x-rays taken prior to his accident which showed a disc herniation or degeneration (actually what the x-rays would have shown was a narrowing of the disc space which would indicate a herniated or degenerated disc) at Ll-2.

      . Caskey gave no testimony about rain. But, other witnesses reported rain after the accident.

      . This issue is different from the question of the amount of damages for pain and suffering which has a different standard of review by both the trial judge in a JNOV review and the appellate court. Again, any judicial reaction to the extremely low and odd quantum figure of $1,872.50 for pain and suffering does not allow the judiciary to find an injury completely different from what the jury reasonably determined.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. John Henry CAMPBELL, Appellant.
    No. 46,888-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2012.
    Rehearing Denied April 5, 2012.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    John Henry Campbell, Pro se.
    Charles R. Scott II, District Attorney, Brian H. Barber, Brady D. O’Callaghan, Suzanne M. Owen, Kodie Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   CARAWAY, J.

| T John Henry Campbell was found guilty by a unanimous jury of aggravated second degree battery. Campbell was subsequently adjudicated a fourth felony offender and sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence. This appeal followed. His appellate counsel has filed a motion to withdraw, together with an An-ders brief in support of the motion. Campbell filed a pro se brief alleging insufficiency of the evidence, improper admission of other crimes evidence, pretrial discovery violations and a jury deliberation error. For the following reasons, Campbell’s conviction and sentence are affirmed.

Facts

John Henry Campbell was charged by amended bill of information on August 23, 2010, with one count of aggravated second degree battery arising from allegations that Campbell burned his girlfriend multiple times with an iron. On August 24, 2010, Campbell’s jury trial commenced.

The first witness was Shreveport Police Officer Aisha Barns, who testified that she was the first police officer to respond to a domestic violence call at 5316 Avon Avenue in Shreveport, Louisiana, on November 20, 2009. When she arrived at the scene, Officer Barns immediately approached a black male, who had just exited his vehicle, read him his rights and passed custody of the man to Officer Brad Sotak and Corporal Richard McDonald for questioning. Officer Barns then spoke with theRyictim, Nakiel Hunter, and observed that she had suffered severe burns on her face and arms caused by a clothing iron which was introduced into evidence.

Corporal Richard McDonald testified that he was called to the scene and took photographs of Hunter’s injuries which were introduced into evidence. The pictures revealed burns on Hunter’s arms and face and a mark on Hunter’s neck that appeared to come from strangulation.

Officer Brad Sotak testified that upon his arrival at the scene, he discovered the iron used to burn Hunter, and noted it was still warm when he picked it up. Officer Sotak testified that his patrol car was equipped with audio and video capabilities. He transported Campbell to the police station in his patrol vehicle which recorded a conversation between the two. The video was introduced into evidence.

The video and audio portions of the recording showed Officer Sotak retrieve the iron and comment that it was still warm. Then, as Officer Sotak entered his vehicle to transport Campbell, he asked another officer whether Campbell had been read his rights. Both the other officer and Campbell stated that he had. Campbell then protested his innocence and stated that Hunter had burned herself with the iron. He also told Officer Sotak that he had used the iron the previous day. He claimed that he choked Hunter, who is bipolar, so that she would stop burning herself with the iron. Campbell also explained that Hunter was upset because she had recently discovered that Campbell was sleeping with another woman. Officer So-tak testified that Campbell told him he did not have any scars on his person.

IsNakiel Hunter testified she was living at 5316 Avon Avenue in Shreveport with Campbell and her two children on November 20, 2009. Hunter stated that at approximately 6:30 a.m., Campbell told her son to go make his bed. Hunter told Campbell to make the bed and her children to wait for the school bus. Campbell responded that he was the provider for the family and could tell her children what to do. He then left the room and Hunter continued ironing her uniform for work. She heard loud noises coming from the other room and thought Campbell was breaking things. Approximately five minutes later, Campbell returned to the room where Hunter was ironing and began calling her insulting names. According to Hunter, Campbell pushed her onto the sofa and began choking her. Campbell then grabbed the iron and again told Hunter that she and her children had to listen to him. Hunter testified that Campbell took the iron and held her down by the throat and burned her with it. Hunter stated she did not have the strength to fight back and Campbell was able to burn her face and arms. Hunter tried to escape out the back door, but Campbell shoved her in the bathroom, pushed her in the bathtub and tried to put her head in the toilet. Hunter somehow escaped the bathroom and got to a phone to call her sister, but Campbell threw the phone and broke it. Hunter finally managed to leave the house and ran down the street to a neighbor’s house where she called 911.

Hunter testified that Campbell tried to follow her in his car, but police arrived and he returned to the house where police found him. Police took photographs of Hunter’s burns and the redness on her neck, which she | identified in court from the photographs admitted into evidence. Hunter testified that Campbell also burned her left breast and thigh with the iron and showed the jury the resulting scars. Hunter admitted that she suffers from bipolar disorder and had not taken medication for her illness since 2006, but stated that she had never physically injured herself and did not burn herself that day.

Hunter testified that she received several letters from Campbell after the incident and identified four letters admitted into evidence. Hunter recognized a letter postmarked November 30, 2009, wherein Campbell told Hunter, “it was all about you from the beginning.” Next, Hunter identified a December 15, 2009 letter wherein Campbell stated that “[w]e are both in the wrong, Baby, because I’m wrong for putting my hands on you and you are wrong for the way you talk to me.” Hunter identified a letter postmarked January 4, 2010, wherein Campbell told her, “[y]ou told me that you was going to make me an appointment for anger management class.” Hunter conceded that she told Campbell prior to the incident she would make him an appointment for anger management. Finally, Hunter identified a letter from Campbell postmarked March 22, 2009, wherein Campbell referred to Hunter as his wife. Following Hunter’s testimony, the state rested.

The defense called Campbell as its sole witness. Campbell admitted to previously being convicted of illegal use of weapons on March 5, 1996, distribution of a schedule II controlled dangerous substance on September 21, 1998, criminal trespass on April 16, 2004, and unauthorized entry of an inhabited dwelling on February 27, 2006. Campbell testified he had lived lswith Hunter since September of 2007 and that she often accused him of cheating and acted irrationally due to her bipolar disorder. Campbell also stated that Hunter would sometimes hit herself and call herself “stupid.” He stated that she also told him once that she thought about killing herself.

Campbell testified that on the morning of November 20, 2009, Hunter accused him of cheating on her with a former eoworker. Campbell stated that Hunter told him “if I can’t have you ain’t nobody have you” and proceeded to burn her face with the iron. Campbell testified that he jumped on top of her and began choking her in an attempt to get the iron from her. Campbell stated he was still on probation and was afraid he would get blamed. After the incident, Hunter left to go down the street and Campbell followed her to make sure she did not tell anyone that he had burned her. Campbell denied burning Hunter.

Campbell could not explain how Hunter burned both of her arms if she was holding the iron with one hand. He admitted that he never asked about Hunter’s welfare after he was arrested and stated that he believed that Hunter concocted the plan to injure herself to send him to prison for life.

After considering the evidence and testimony, the jury returned a unanimous verdict of guilty of aggravated second degree battery.

On November 17, 2010, Campbell was adjudicated a fourth felony habitual offender. The trial court vacated Campbell’s previously imposed sentence, and resentenced Campbell to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence because |fihe was a fourth felony offender with a predicate offense for a crime of violence and a drug conviction. This appeal followed.

Discussion

Campbell’s appellate counsel filed an Anders brief which alleged the existence of no non-frivolous issues for appeal and sought the withdrawal of counsel. Campbell was afforded and took the opportunity to file a brief. Upon review of Campbell’s arguments, this court issued an order to counsel to brief arguably non-frivolous issues raised in Campbell’s brief relating to other crimes evidence which was not disclosed during pretrial discovery. Thereafter, counsel filed a brief addressing the pretrial discovery issue, urging reversal of Campbell’s conviction. Thus we address the merits of the appeal.

In his pro se brief, Campbell first argues insufficiency of the evidence to convict because the jury failed to consider that Hunter burned herself with the iron in an effort to send Campbell to jail for life so that he could not be with another woman. In support of his claim, Campbell points to his testimony and the fact that Hunter admitted to suffering from bipolar disorder.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Moton, 46,607 (La.App.2d Cir.9/21/11), 73 So.3d 503, 508; State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Moore, 44,429 (La.App.2d Cir.8/26/09), 20 So.3d 1137, writ denied, 09-2166 (La.4/9/10), 31 So.3d 378; State v. Robbins, 43,129 (La.App.2d Cir.3/19/08), 979 So.2d 630. When the conviction is based on | ¡^circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. La. R.S. 15:438.

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 06-2514 (La.5/4/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490. See also, State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So.2d 468, writ denied, 98-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999). The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Aggravated second degree battery is defined as a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury. La. R.S. 14:34.7. Serious bodily injury is defined as bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty, or a substantial risk of death. Id.

The evidence adduced at trial, when viewed in a light most favorable to the state, was sufficient to convict Campbell of aggravated second degree battery. Hunter’s testimony provided direct evidence of the fact that Campbell intentionally burned her with an iron. Likewise, photographs showing that Hunter was burned on both arms belie Campbell’s claim that she burned herself. Furthermore, the testimony of the police officers and the photographs of Hunter’s injuries provided additional proof that she suffered obvious disfigurement and pain as a result of the burns. Thus, the jury’s choice of Hunter’s testimony, thereby rejecting Campbell’s assertions, was reasonably supported by the evidence. The jury’s credibility | ^determination is entitled to great weight and will not be reconsidered by this Court on appeal. Accordingly, this assignment is without merit.

In his pro se brief, Campbell contends that the trial court erred in allowing the state to introduce the December 15, 2009 and January 4, 2010 letters into evidence. He contends that the subject letters contain evidence of other crimes and bad acts where he told Hunter, “[w]e are both in the wrong, Baby, because I’m wrong for putting my hands on you and you are wrong for the way you talk to me” and “[y]ou told me that you was going to make me an appointment for anger management class.” Campbell argues that the trial court should have conducted a Prieur hearing before allowing the letters to be introduced into evidence.

As noted above, the state sought to introduce the letters into evidence during Hunter’s testimony. The trial court removed the jury and heard the preliminary arguments of counsel. The defense objected on the grounds of surprise because the letters were never produced in discovery and “bordered” on others crimes evidence. The state claimed that it had informed the defense of the existence of the letters, but was not planning on using them until the defense asked Hunter if she had tried to reconcile with Campbell. Thus, the state sought to introduce the letters to show that it was Campbell who sought to reconcile with Hunter, not vice versa, as Campbell claimed. Further, the state argued that in discovery, the defense had been given the opportunity to view any and all statements.

InUpon defense counsel’s suggestion, the court allowed a short break to review the letters and to allow the defense to do the same. The court at that time ruled that defense counsel was notified that there were letters and that there was “no surprise about the letters.” Following review of the letters by the defense, the state indicated its intent to introduce only four into evidence and the defense agreed to allow the November 30, 2009, January 4, and March 22, 2010 letters into evidence after conceding that they were relevant to the issue of reconciliation.

Nevertheless, the defense objected to the introduction of the December 15, 2009 letter, wherein Campbell stated, “I was wrong to put my hands on you,” on the grounds that it should have been disclosed as a “confession or a statement of admission that should have been made available under Article 716 of the Code of Criminal Procedure.” The state again contended that the letter had been available for inspection any time by defense counsel through pretrial discovery.

After reviewing the subject letter, the trial court determined that Campbell’s statement about putting his hands on Hunter was in reference to his choking her, and therefore was not evidence of other crimes, but an admission that he had already conceded as part of his defense. Thus, the court overruled the defendant’s objection.

The record includes Campbell’s discovery request to the state wherein he requests that the state “inform the Defendant, in writing, of the existence of and to permit the defendant to inspect and copy, photograph or | ^otherwise reproduce any relevant written or recorded confession or statement of any nature of the defendant” in the possession of the state. The state’s discovery response to Campbell informed the defendant that the state “intends to introduce at trial any statements made by the defendant and/or co-defendants, including res gestae statements, which are referred to in the attached reports. If any exists, the state has enclosed copies of any written or recorded statements made by the defendant.” The discovery response also included general permission for the examination of all items of evidence by Campbell.

Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the “substantial risk of grave prejudice to the defendant.” Prieur, 277 So.2d at 128. However, the state may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404(B)(1). The state must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. Prieur, 277 So.2d at 130. Even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant’s defense. State v. Martin, 377 So.2d 259, 263 (La.1979); Prieur, 277 So.2d at 130.

Although a defendant’s crimes, wrongs or prior bad acts may be relevant and otherwise admissible under La. C.E. art. 404(B), the court must Instill balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. La. C.E. art. 403. Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id. See also, Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997).

Article 404(B) specifically provides that “the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial,” which reflects the Prieur ruling. However, not every violation of pretrial procedures, including Prieur violations, requires reversal of a conviction. Before a defendant can complain of such a violation, he must show prejudice. Prieur speaks of the “substantial risk of grave prejudice” to a defendant arising out of inadmissible or surprise admission of other crimes evidence, but does not presume that prejudice. State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007); State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996); State v. Moton, supra.

The erroneous admission of other crimes evidence due to the state’s failure to give the defense proper notice, or for any other reason, is subject to the harmless error rule because the erroneous introduction of other crimes evidence is a trial error, i.e., an error which occurs during the case’s | ^presentation to the trier of fact, which may be quantitatively assessed in the context of the other evidence. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102. An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. State v. Robertson, 06-1537 (La.1/16/08), 988 So.2d 166.

We find no error in the trial court’s ruling that the letters contained no prejudicial reference to other crimes evidence. The language referring to Hunter’s scheduling Campbell for anger management classes cannot be regarded as evidence of other crimes, wrongs or acts. Likewise in context, Campbell’s comments regarding putting his hands on Hunter relate to Campbell’s defense regarding the crime at hand as the trial court noted and therefore are not a reference to “other” crimes, wrongs or bad acts. Thus, Campbell’s complaint has no merit.

In a supplemental brief, appellate counsel for Campbell argues that Campbell’s statement about his putting his hands on Hunter was in the nature of a confession or statement of admission which was not disclosed in discovery in violation of La.C.Cr.P. art. 716. Campbell contends that this nondisclosure lulled the defense into the false belief that the state did not have the letters so as to surprise and prejudice Campbell’s defense.

La.C.Cr.P. art. 716 provides as follows:

Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control, or knowledge of the district attorney.

The provisions of La.C.Cr.P. art 768 read:

11fiUnIess the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

La.C.Cr.P. art. 729.5 discusses the failure to comply with discovery as follows:

A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.
B. In addition to the sanctions authorized in Part A hereof, if at any time prior or subsequent to final disposition the court finds that either the state through the district attorney or assistant district attorney or the defendant or his counsel has willfully failed to comply with this Chapter or with an order issued pursuant to this Chapter, such failure shall be deemed to be a constructive contempt of court.

The rules of discovery are intended to eliminate unwarranted prejudice arising from surprise testimony to permit the defense to meet the state’s case, and to allow proper assessment of the strength of its evidence in preparing a defense. State v. Harris, 00-3459 (La.2/26/02), 812 So.2d 612; State v. Statum, 390 So.2d 886, 889-90 (La.1980), cert. denied, 450 U.S. 969, 101 S.Ct. 1489, 67 L.Ed.2d 619 (1981). The failure of the state to comply with discovery rules does not bring automatic reversal; rather, prejudice must be shown. State v. Harris, supra; State v. Sanders, supra; State v. Schrader, 518 So.2d 1024, 1031-32 (La.1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990). When the defendant is lulled into misapprehension of the strength of the state’s case through the failure of the prosecution to timely or fully disclose and the defendant suffers prejudice, |lfibasic unfairness results which constitutes reversible error. State v. Harris, supra; State v. Allen, 94-2262 (La.11/13/95), 663 So.2d 686; State v. Mitchell, 412 So.2d 1042, 1044 (La.1982); State v. Carter, 43,304 (La.App.2d Cir.6/18/08), 987 So.2d 364, writ denied, 08-2752 (La.9/25/09), 18 So.3d 86.

Although a mistrial is among the sanctions which the trial court could have chosen if it had viewed the circumstances in this case as a discovery violation, a mistrial is a drastic remedy and, except in instances in which the mistrial is mandatory, is warranted only when a trial court error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Comeaux, 514 So.2d 84, 96 (La.1987).

Moreover, as provided in La. C.Cr.P. art. 729.5, the article which details the arsenal of sanctions available for discovery violations, no particular remedy is mandated. State v. Harris, supra. The effects of a discovery violation may be remedied by effective cross-examination. State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Carter, supra; State v. James, 38,353 (La.App.2d Cir.5/12/04), 873 So.2d 858.

We find no error in the trial court’s admission of the subject letter into evidence. In accordance with La.C.Cr.P. art. 729.5, the court ordered immediate disclosure of the letter to the defense which was given ample time to review the evidence prior to its admission into evidence. Thus, any claimed surprise was eliminated. Upon its admission into evidence, Campbell was afforded full cross-examination of Hunter. Finally, the information contained in the letter did not contradict Campbell’s defense 117which always included his admission that he choked or touched Hunter in order to stop her from burning herself. Accordingly, Campbell has failed to demonstrate substantial prejudice in the admission of the letter into evidence. This assignment of error has no merit.

In his final pro se argument, Campbell claims that the trial court erred in allowing the jury to retain a copy of the jury charge to be used during the deliberations without first reading same in open court and for the record in accordance with La.C.Cr.P. art. 801. Article 801 requires the trial court to read the jury charges to the jury following closing arguments and before deliberation.

The record shows that following closing arguments, the trial court gave the jury a copy of the jury charges and read the charges aloud. The charges were then taken from the jury and a single copy of the charges (by agreement by both parties), along with the verdict form, were given back to the jury in the deliberation room. Campbell contends that the trial court erred in allowing the jury to retain a copy of the jury charges without first reading the charges in open court for the record.

In relevant part, La.C.Cr.P. art. 801(A) and (B)(1) provide:

A. The court shall charge the jury after the presentation of all evidence and arguments. The court shall reduce its charge to writing if it is requested to do so by either a defendant or the state prior to the swearing of the first witness at the trial on the merits. The court’s written charge shall be read to the jury. The court shall deliver a copy thereof to the defendant and to the state prior to reading it to the jury.
B. (1) After such written charge is read to the jury, a copy of the written charge shall be delivered to the jury if such delivery is consented to by both the defendant and the state in open court but not in the presence of the jury.

|1sWe discern no reversible error by the trial court in allowing the jury to retain a copy of the jury charges in deliberations. The action of the trial court was statutorily sanctioned by La.C.Cr.P. art. 801(B)(1) upon the parties’ agreement. Additionally, in contradiction to Campbell’s claim, the record reveals that the trial court read the jury charges in open court in accordance with La.C.Cr.P. art. 801(A). We find no merit to this claim.

Upon error patent review, we note that the trial court informed Campbell that he had three years from the finality of his conviction and sentence within which to file post-conviction relief, instead of the two-year period, in accordance with La. C.Cr.P. art. 930.8. By this opinion, Campbell is advised that he has two years from the date his conviction and sentence become final within which to file post-conviction relief.

Decree

For the foregoing reasons, Campbell’s conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and MOORE, JJ.

Rehearing denied.

      . The brief was filed in accordance with the cases of: Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

      . On September 30, 2010, Campbell had been sentenced to 15 years at hard labor on the aggravated second degree battery conviction.

      . This type of hearing was first sanctioned in State v. Prieur, 277 So.2d 126 (La.1973).