text:
    EASTON PHARMACY, INC. v. Kelli BULLER.
    No. 11-585.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Chuck Randall West, West & Vidrine, Ville Platte, LA, for Defendant/Appellee, Kelli Buller.
    Jennifer E. Frederickson, Stemmans & Alley, PLLC, Baton Rouge, LA, for Plaintiff/Appellant, Easton Pharmacy, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

pin this workers’ compensation matter, the employer provided compensation benefits after the subject employee sustained injury in a work-related fall. However, the employer disputed the need for a lumbar fusion sought by the employee and for certain prescribed medications. It also alleged that the employee made misrepresentations in order to obtain compensation benefits in violation of La.R.S. 23:1208. In response, the employee sought penalties and attorney fees for the denial of the surgery and medication. The workers’ compensation judge found in favor of the employee, ordering the employer to provide the surgery and imposing penalties and attorney fees. The judge also denied the claim for La.R.S. 23:1208 sanctions. For the following reasons, we amended the amount of penalties award and affírm as amended.

Factual and Procedural Background

The record indicates that Kelli Buller was employed as a pharmacy technician at Eastin Pharmacy in August 2003, when she fell from a stool allegedly injuring her back. The employer began paying compensation benefits, including four surgical procedures. However, this dispute arose when Ms. Buller’s physician, Dr. George Williams, recommended an anterior lumbar interbody fusion at the L5-S1 level. Ms. Buller had previously undergone a fusion at the same level, but the surgery had ultimately resulted in a non-union of the area.

Following Dr. Williams’ recommendation of the fifth surgery, the employer sought review of the necessity of the procedure from Dr. Gregory Gidman, also an orthopedist. Dr. Gidman explained that the recommended surgery was a viable option if desired by Ms. Buller. However, he explained that his prognosis of the results of |2such a procedure was “guarded.” He explained that this was true in light of Ms. Buller’s poor results from the earlier surgeries.

Accordingly, the employer filed this matter in October 2009, disputing the necessity of the surgery. Later, the employer amended its claim, alleging that Ms. Buller violated La.R.S. 23:1208 by failing to disclose information regarding prior injuries. It also alleged that she exaggerated the physical limitations caused by the work-related injury.

Ms. Buller answered the claim, seeking approval of the anterior lumbar interbody fusion recommended by Dr. Williams and, later, approval of certain medications. Ms. Buller also pursued an award of penalties and attorney fees due to the denial of the surgery.

The workers’ compensation judge ultimately ordered that the employer provide the recommended surgery and the medication claimed by Ms. Buller, finding these items reasonable and necessary. The judgment included an award of penalties in the amount of $8,000 and attorney fees in the amount of $10,000 due to the failure to approve surgery. The workers’ compensation judge also found that the employer failed to carry its burden of proof under La.R.S. 23:1208.

The employer appeals, assigning the following as error:

1. The workers’ compensation judge committed error or manifest error in finding that claimant did not violate La. R.S. 23:1208.
2. The workers’ compensation judge committed error or manifest error in finding that the anterior lumbar inter-body fusion recommended by Dr. George Raymond Williams is medically necessary and awarding same.
3. The workers’ compensation judge committed error or manifest error in finding that the prescription in dispute are related to the accident at issue and awarding same.
4. The workers’ compensation judge committed error or manifest error in finding that the employer was arbitrary and | ^capricious to deny the lumbar fusion, awarding penalties and attorney fees, and the amount thereof.

Discussion

Willful Misrepresentation of Facts

The employer questions the determination that Ms. Buller did not violate La.R.S. 23:1208 due to what it contends were misrepresentations regarding her physical limitations, disability, subsequent injuries, and prior medical or psychological conditions. The employer argues that, not only did Ms. Buller fail to reveal prior injuries and accidents, but that she exaggerated the limitations posed by her injury.

In this regard, La.R.S. 23:1208 provides, in part, that:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

In reasons for ruling, the workers’ compensation judge explained that it made “a specific finding of fact that Kelli Buller was a credible witness based upon viewing her testify in open court and despite any inconsistencies alleged by the employer. This credibility serves as a basis for the Court’s Judgment, including but not limited to the denial of the fraud allegations.” On appellate review, a workers’ compensation judge’s determination as to whether an employee forfeited his or her right to benefits under La.R.S. 23:1208 is a factual question, which will not be reversed in the absence of manifest error. Armand v. Denton-James, L.L.C., 08-920 (La.App. 3 Cir. 2/4/09), 2 So.3d 1272.

UAlthough it is unquestioned that Ms. Buller failed to disclose certain previous conditions, either to her physicians or at her pre-hearing deposition, the instances complained of by the employer were not of a nature so as to require a determination that they were willfully made in order to obtain benefits. Instead, based on both the questioning and Ms. Buller’s explanations, the workers’ compensation judge could have permissibly determined that Ms. Buller failed to appreciate the medical or technical aspects behind the questions as posed by either counsel or her physicians.

Certainly Ms. Buller did not disclose, at various times, that she had previously received treatment for back pain. Notably, in 1999, Ms. Buller received steroid injections in the lumbar region due to back pain and an MRI taken at that time revealed a herniation at the L5-S1 level. However, and while Ms. Buller testified that she thought she had told her physicians of her earlier back complaints, she further testified that she reported what she was told, i.e., that the 1999 MRI did not disclose a condition with her back. On this point, a report from Ms. Buller’s orthopedic surgeon indicated that the disc bulge revealed on the 1999 MRI did not evidence nerve root compressions and that he was doubtful that this was the cause of her back complaints. Also, Dr. Williams explained that the 1999 MRI substantially differed from those resulting from her 2003 work-related accident. Further, Ms. Buller stated that the pain she experienced when being treated in 1999 differed from the pain experienced from the subject accident.

The employer also asserts that Ms. Bul-ler denied having been previously treated for any type of psychological disorder or mental condition before the accident at issue. Yet, the employer is able to point to earlier records indicating that Ms. Bul-ler was treated with a number of medications for depression. At the hearing, Ms. Buller acknowledged these past occurrences of depression and that she had not revealed the condition when asked during her deposition whether she had ever received treatment |5for a “psychological or mental condition.” Ms. Buller stated simply that she did not think her earlier depression qualified as a “mental illness.” Further, Ms. Buller, did, in fact, reveal her prior treatment when she was treated in 2004 for pain management issues by Dr. Steven Staires.

Further, a portion of Ms. Buller’s claim involved prescriptions issued for reflux allegedly caused by her pain medication. However, the employer questions Ms. Bul-ler’s denial in her deposition that she “hadn’t had a problem with stomach medication, before[.]” But, the employer observes that Ms. Buller had been issued a number of prescriptions for Prevacid and Phenargin before this accident. Ms. Bul-ler stated that she had not revealed this treatment at her deposition because she had forgotten.

Moreover, the employer also relies on the fact that Ms. Buller denied involvement in an accident subsequent to the 2003 work-related fall. She was, however, involved in an automobile accident in 2005. At the hearing, Ms. Buller admitted being a passenger in a vehicle involved in an accident and that she was taken to the emergency room afterwards. She explained that she did not inform her physician about the accident on her subsequent visit because she had forgotten about it and, furthermore, that the accident had not changed her symptoms. She stated that she did not make a claim for personal injuries after the 2005 accident.

Finally, the employer argues that Ms. Buller’s contention that the injury has limited her physical activities is contradicted by surveillance tape. While the employer contends that the surveillance tape reveals Ms. Buller engaging in activities outside of her limitations, the footage was submitted into evidence. It was within the workers’ compensation judge’s fact finding role to evaluate this evidence of Ms. Bul-ler’s movement. We find no manifest error in its conclusion that the evidence did not warrant a finding that Ms. Buller misrepresented her capabilities.

|RIn sum, we find no merit in the employer’s contention regarding La.R.S. 23:1208. Although various inconsistencies existed in the multiple-year progression of this suit, the evidence regarding these alleged misrepresentation was not so compelling as to require a reversal of the determination that any such misrepresentations were willful for the purpose of obtaining benefits.

Necessity of Surgery

The employer next questions the order that it provide an anterior lumbar interbody fusion at the L5-S1 level, a procedure it argues is not medically necessary. The employer observes that Dr. Gidman expressed doubt regarding a positive outcome from the procedure and that the physician who performed an independent medical examination, also opined that the fusion was not a “medical necessity.”

Louisiana Revised Statutes 23:1203(A) requires that, in all cases covered by the workers’ compensation provisions, an employer “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal[.]” A workers’ compensation judge’s determination as to the medical necessity of claimed treatment is a question of fact subject to the manifest error standard of review. Cajun Welding & Machine Co. v. Deville, 03-0548 (La. App. 3 Cir. 11/5/03), 858 So.2d 875.

Our review of the record reveals support for the order of the recommended procedure. The employer’s focus on the physicians’ opinion regarding the “medical necessity” of the procedure lacks sufficient-acknowledgement of the larger context of the discussion of the surgery. The medical evidence and testimony indicates that Ms. Buller’s prior fusion at the L5-S1 level resulted in a non-union. There -was speculation about the “viability” of a positive result given her prior poor results. However, both Dr. Gidman and the physician performing the IME suggested that the 17surgery recommended by Dr. Williams would be appropriate if chosen by the claimant. In fact, the IME physician’s statement in his September 10, 2010 reveals that:

I agree that this lady has a nonunion at the L5-S1 site of the previously instrumented posterior L5-S1 fusion. No bone masses were noted between the transverse process of the L4 and 5 and the CAT scan indicates some lucency around the SI pedicle screws. I do not think that it is a medical necessity that she undergo the fusion. I think that it is her decision as to whether she accepts the nonunion with chronic discomfort or consider the recommended anterior in-terbody fusion. I do consider the anterior interbody fusion to be a medical necessity to obtain a solid fusion between the L5-S1 vertebral bodies. I agree with Dr. Williams in that this procedure does have some substantial risks compared to the posterior fusion and that if she were to obtain a solid fusion she has a substantial chance of reducing the posterior midline pain. A solid fusion offers her the potential of increasing her physical capabilities. On the other hand, if she does develop a nonunion (after the anterior interbody fusion) she would continue with posteri- or lumbar area pain.

Neither did Dr. Gidman suggest merely that the surgery was not medically necessary. Taken in context, Dr. Gidman explained that he had given a guarded prognosis for the fusion in light of the prior failed treatment. He testified that given Ms. Buller’s situation of likely having “a loose screw in the back,” she would have two options for future treatment. Either “you could leave her alone” and “accept the condition as is,” or “if it causes a lot of pain,” she could proceed with the re-fusion. Dr. Gidman stated that such a procedure would be “a big deal,” but those are “your two choices.” He explained that it was possible that Ms. Buller would have a significant decrease in her pain after the recommended procedure, but that it was not probable.

While the physicians relied upon by the employer were reserved in their expectations of the surgery recommended by Dr. Williams, we do not find that their opinions, taken in context, undercut the workers’ compensation judge’s determination regarding the necessity of the lumbar fusion.

This assignment lacks merit.

IsMedication

The employer also questions whether the workers’ compensation judge erred in awarding anti-depression medication prescribed to Ms. Buller. It contends that Ms. Buller failed to prove that the need for the medication was caused by the work-related accident in light of previous treatment for depression, as discussed above.

While the claim regarding causation as it relates to the depression medication is not abundantly supported, we do not disturb the workers’ compensation judge’s award. Notably, the medication was prescribed by a physician managing Ms. Bul-ler’s pain due to her work-related accident. Ms. Buller testified that, although she had previously been on anti-depression medication, she felt her depression resulted from her work-related accident. She explained that after each of the four back surgeries following her accident, her pain had returned. Ms. Buller testified that the medication was required because “since the accident, [her] life is not what it used to be, and to take the edge off of life.” She denied that anyone had told her that the depression medication prescription was due to any other reason.

Thus, we find no manifest error in the determination that the depression medication as prescribed “is reasonable and necessary.”

Penalties and Attorney Fees

Finally, the employer questions the determination that its denial of the anteri- or lumbar interbody fusion was arbitrary and capricious, a finding underlying the award of penalties and attorney fees. The employer also questions the quantum of the $8,000 penalty awarded. It asserts that, if a penalty is appropriate, the penalty should have been assessed pursuant to La.R.S. 23:1201(F), which limits the applicable penalty to $2,000, rather than pursuant to La.R.S. 23:1201(1), which permits a penalty of up to $8,000. While we find no manifest error in the decision to impose penalties and attorney fees for the failure to authorize the lumbar fusion, we conclude that the 19workers’ compensation judge erred in the manner in which penalties were awarded. We amend the judgment accordingly.

In this case, the workers’ compensation judge concluded that the employer’s “termination” of benefits, i.e., the failure to approve the recommended back surgery, was arbitrary and capricious. This terminology appears to order an award of penalties and attorney fees under La.R.S. 23:1201(I)(emphasis added), which provides that:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found hable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(C) shall be applicable to claims arising under this Chapter.

However, in this case, it is clear that the failure to authorize the surgery was not a discontinuance of benefits. Instead, the employer failed to provide a required benefit. Thus, the penalties and attorney fees were awardable under La.R.S. 23:1201(F). This paragraph provides for the imposition of penalties and attorney fees “for failure to provide payment in accordance” with the compensation provided for in that section. Paragraph (F) establishes that a penalty awarded thereunder may be assessed:

in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars.

The above-prescribed penalty is not warranted if the claim is reasonably controverted. La.R.S. 23:1201(F)(2). Thus, the applicable penalty was awardable under Paragraph [inF, and should have been limited to $2,000 for the claim regarding the failure to provide the fusion surgery. We amend the penalty award in this regard.

Subject to this amendment, we affirm the award of penalties and attorney fees insofar as the record supports a determination that the failure to approve the surgery was not reasonably controverted. The employer seemingly denied the surgery based on fortuitous language from Dr. Gidman indicating that his prognosis for the recommended surgery was “very guarded.” Yet, reference to Dr. Gidmaris larger report indicated that the surgery was a “viable surgical option” to offer Ms. Buller. In his subsequent deposition, Dr. Gidman suggested that although improvement in Ms. Buller’s condition was not_ probable if she chose the fusion, it was possible. Again, he concluded that the choice as to how to proceed was one open to Ms. Buller.

In light of the employer’s continued refusal to authorize the recommended surgery despite knowledge that it was discussed as an option for treatment by both Dr. Gidman and the physician performing the IME, we find no manifest error in the decision to impose a penalty. As stated above, however, we amend that penalty to reflect a total of $2,000 for the failure to approve surgery.

DECREE

For the foregoing reasons, that portion of the workers’ compensation judgment is amended to reflect a penalty in the amount of $2,000 rather than a penalty of $8,000. That portion of the judgment is recast as follows:

lnIT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the refusal to provide the anterior lumbar interbody fusion at L5/S1 recommended by Dr. George Raymond Williams was not reasonably controverted, thus entitling claimant to an award of $2,000.00 in penalties for the failure to approve surgery, and an award of $10,000.00 in attorney fees.

We otherwise affirm the judgment as amended. All costs of this proceeding are assessed to the appellants, Eastin Pharmacy, Inc. and Retailers Casualty Insurance Company.

AFFIRMED AS AMENDED.

      . The record lists the employer as both "Eas-tin” and "Easton." In this discussion, we use the former spelling insofar as this usage appears on both the claim form and in the judgment under review.

      . We do not find it appropriate to amend the judgment to include an additional $2,000 award for failure to approve payment of the depression medication as the judgment reflects merely that: ‘'[tjhe termination of compensation benefits was arbitrary and capricious, thus entitling claimant to an award of $8,000.00 in penalties for the failure to approve surgery.”

      . The judgment indicates that the workers’ compensation judge determined that the employer's actions were "arbitrary and capricious” whereas La.R.S. 23:1201(F) provides for a penalty unless the failure to provide benefits was "reasonably controverted.” However, " '[u]nreasonably controverting a claim ... requires action of a less egregious nature than that required for arbitrary and capricious behavior[.]’ " Green v. Nat. Oilwell Vareo, 10-1041, p. 16 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 364 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 8 (La.12/1/98), 721 So.2d 885, 890).


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Tredise M. BENJAMIN v. Derrick LAMBING, et al.
    No. 11-649.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    James Edward Diaz, Jr., John E. Ortego & Associates, Lafayette, LA, for Defendants/Appellants, State Farm Mutual Automobile Insurance Company (as liability insurer of) and Derrick Lambing.
    John T. Bennett, John T. Bennett Law Offices, Marksville, LA, for Plaintiff/Appel-lee, Tredise M. Benjamin.
    Larry A. Stewart, Stafford, Stewart & Potter, Aexandria, LA, for Defendant/Ap.pellant, State Farm Mutual Automobile Insurance Company (as uninsured motorist insurer of Tredise Benjamin).
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| derrick Lambing, his automobile liability insurer, State Farm Mutual Automobile Insurance Company, and State Farm as the plaintiffs uninsured motorist carrier appeal the trial court’s judgment in favor of Tredise Benjamin, which found Lamb-' ing 100% at fault for a motor vehicle accident that occurred on December 14, 2009, in Marksville, Louisiana. That judgment awarded Benjamin $21,926.28 plus judicial interest and all costs of court. For the reasons that follow, we reverse.

FACTS

December 14, 2009 was a rainy day in Marksville. Shortly after 5:00 p.m., Lambing, in his 1999 Toyota pickup, was driving north on Tunica Drive. As he approached the intersection of Tunica and Acton, one corner of which is occupied by a Shell convenience store, Lambing’s truck was in the inside lane. Another pickup occupied the outside lane. The intersection of Tunica and Acton is controlled by a traffic light, which Lambing testified was green for north- and south-bound Tunica drive traffic. He entered the intersection at about 35 miles per hour. Lambing testified that he noticed a vehicle appear in his path as it turned left onto Tunica from the Shell parking lot. Lambing hit his brakes but was unable to avoid hitting the car, driven by Benjamin. At the point of collision, according to Lambing, Benjamin’s vehicle had not straightened up.

Benjamin testified that she was attempting to exit the Shell parking lot. She described traffic as heavy, and that cars were stopped in the south-bound lanes of Tunica Drive. Drivers waved her into traffic. According to Benjamin, she pulled into the north-bound inside lane. As she pulled into traffic, Benjamin looked back over her right shoulder and saw no vehicles approaching her from behind. She traveled about 50 feet, beyond the Shell station parking lot, before she was struck from behind by Lambing. “I felt this big bump and I got hit directly from behind.” |2A1so according to Benjamin, by the time she had traveled this short distance she had reached a speed of between 25 and 30 miles per hour.

Lambing’s girlfriend, Shawn Smith, occupied the vehicle immediately behind his. She testified that Benjamin pulled across the south-bound lanes and looked as though she would hesitate, but instead pulled directly into Lambing’s way. When the two vehicles collided, the force knocked Lambing’s truck to the right. Smith thought Benjamin’s vehicle was going slow enough that she could have stopped before entering Lambing’s lane.

Lambing testified that he stopped his vehicle and exited it. He approached Benjamin and asked how she was doing. He testified that Benjamin told him, “It ain’t my fault. They was waving me through.” He also testified that she stated that she knew he could not have seen her. Benjamin, on the other hand, testified that she remained in her vehicle after the collision. Lambing approached her and apologized to her, claiming that he simply did not see her.

Officer Trent Young of the Marksville Police Department testified as the investigating officer. When he arrived, he noted the positions of the vehicles, both fully within the inside, north-bound lane. Officer Young took photographs of the scene and the damage to the vehicles. He testified that Lambing stated that he had stopped at the red light and after it turned green he proceeded north when Benjamin pulled out in front of him. Lambing admitted hitting Benjamin from behind. Officer Young noted damage to the rear of Benjamin’s vehicle from the center point to the right rear corner. Officer Young testified that there was damage to the center rear of Benjamin’s vehicle because Benjamin was unable to open the trunk to retrieve a child safety seat. The damage to the front of Lambing’s truck extended from the center to the front left corner, based upon the fact that the bumper sagged slightly from the left corner toward the middle.

|sThe photos taken by Officer Young were introduced at trial. Two depict the final positions of the vehicles after impact. Two depict the damage to Benjamin’s car and place the impact at the extreme right rear corner of the bumper and left rear fender. We further note that, while Officer Young indicated that there was damage to the center rear of Benjamin’s vehicle because she was unable to open her trunk, the trunk lid is quite definitely buckled from the side. There is no damage to the center rear of Benjamin’s ear. The damage to Lambing’s truck is confined to the corner turning signal and left front fender The bumper sags only at the left front corner. The photographs quite vividly contradict Officer Young’s testimony. Officer Young admitted that he had indicated on his accident report that there was damage to the rear driver’s side of Benjamin’s car, while there in fact was none.

In addition to the two radically contrasting accounts of the actual collision, there was a disagreement over whether Lambing had a passenger in his truck. Benjamin testified that as she sat in her car, she glanced in her rearview mirror and saw a woman and a boy in the truck. Lambing testified that he was being followed by his girlfriend, Ms. Smith, who had her son, Michael, with her. Officer Young testified that Lambing told him Michael was a passenger in the truck. Lambing denied this.

The trial court also heard the testimony of Vernon Tekel, Jr., a traffic engineer and accident reconstruction expert. Initially, Tekel had been provided with the following assumptions: that Lambing had stopped at the traffic signal at Tunica and Acton, and proceeded through after the light turned green; that Benjamin had entered the Shell station parking lot at its northern-most point; that she had exited at the southern-most exit after being allowed into traffic by vehicles in the south-bound lanes; and, that the collision had occurred at a point on Tunica Drive no further than the property line of the Shell station. The testimony he heard at trial differed in several respects. First, Lambing testified at trial that |4the light was green and he was traveling at 35 miles per hour. Benjamin and Officer Young testified that the point of impact was beyond the area of the Shell station lot, whereas Officer Young’s report indicated that the impact occurred between the southern and northern exits of the station.

Tekel opined that if Benjamin had indeed pulled out from the southern exit and traveled to the edge of the Shell station lot, assuming she had not accelerated excessively, when she entered the northbound lane Lambing would have been 500 feet away. He found this scenario curious based upon the property damage depicted in the photographs, which depicted damage only to the right rear corner of Benjamin’s car and only the left front corner of Lambing’s truck. For this to happen, assuming Benjamin was completely within the inside north-bound lane, Lambing would have had to encroach into the outside north-bound lane. But, had the impact occurred closer to the southern exit of the lot, Lambing would have been in the intersection as Benjamin pulled out. Under that scenario, the accident more probably than not occurred as Benjamin was still executing her turn. Lambing would not have had a reasonable opportunity to avoid the collision. The final resting points of the vehicles wholly within the inside lane of Tunica Drive, coupled with the points of impact on the vehicles, were more consistent with Lambing’s account of the accident than Benjamin’s.

The trial court rendered oral reasons for judgment. The trial court found Benjamin’s testimony consistent with what she related to emergency room personnel, and therefore credible. It reasoned that Smith’s testimony was not credible because she testified in too great detail about what she saw. The trial court accepted Officer Young’s testimony about the damage that he saw to the vehicle, which indicated to the trial court that the accident was more probably than not a simply rear impact instead of a corner-to-corner impact. The trial court found |5that Benjamin had established control of the northbound lane. Ten percent fault was allocated to Benjamin and 90 percent to Lambing.

ASSIGNMENTS OF ERROR

Lambing and State Farm, as his liability insurer, assign as error the trial’s allocation of fault and its application of the doctrine of preemption. State Farm, as Benjamin’s uninsured motorist carrier, asserts that the trial court’s judgment should be reviewed de novo and that the trial court’s finding of fault on Lambing was erroneous in the face of the physical evidence and the uncontradicted expert testimony of Tekel.

ANALYSIS

A trial court’s findings or allocation of fault are reviewed under the manifest error standard. For a full discussion of the manifest error standard, see Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). Unless we find that the record contains no reasonable support for the trial court’s findings, we are required to affirm. Id.

The physical evidence in the form of the photographs was afforded almost no weight by the trial court. As Tekel testified, the only way this accident could have occurred, assuming Benjamin had gained control of the inside lane of traffic, was for Lambing to have crossed from the outside lane to the inside, given the points of impact. Courts of appeal bear a constitutional obligation to review facts and law of decisions below. La. Const. art. V, § 10(B). As we have previously stated, “[I]t is our duty to reverse a decision of the trial judge if we find manifest error. Such judgment of the trial court should be reversed when it is against the clear weight and physical evidence.” Webb v. Southern Pacific R. Co., 617 So.2d 618 (La.App. 3 Cir.), writ denied, 625 So.2d 180 (1993).

Further, the trial court afforded no weight to Tekel’s testimony, which was uncontradicted. Absent circumstances in the record that cast suspicion on the | ^reliability of testimony and an expression of sound reasons for rejecting it, uncontra-dicted testimony should be taken as true to establish a fact for which it is offered. Jackson v. Capitol City Family Health Ctr., 04-2671 (La.App. 1 Cir. 12/22/05), 928 So.2d 129. And although even uncontra-dieted expert testimony is not binding on the trial court, it may not be lightly disregarded. Sanders v. Wysocki, 92-1190 (La. App. 4 Cir. 1/27/94), 631 So.2d 1330, writ denied, 94-0506 (La.4/22/94), 637 So.2d 156; Godfrey v. City of Baton Rouge, 10-2333 (La.App. 1 Cir. 6/10/11), 2011 WL 3242290 (unreported).

CONCLUSION

We find manifest error in the trial court’s factual findings. The trial court disregarded the physical evidence and ignored uneontradicted expert testimony that demonstrated that Lambing’s version of the accident was the only credible and creditable version. The judgment of the trial court is reversed. All costs of the appeal are taxed to plaintiff/appellee, Tre-dise Benjamin.

REVERSED.


author: THIBODEAUX, Chief Judge.

text:
    Robert G. NUGENT, et ux. v. J & A AUTO SUPPLY, INC., et al.
    No. 11-693.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Charles Gregory Gravel, Gravel, Cespiva & Wilkerson, Alexandria, LA, for Plaintiffs/Appellants, Robert G. Nugent and Marion Elaine Chandler Nugent.
    Sidney Wallis Degan, III, Degan, Blanchard & Nash, New Orleans, LA, Micah A. Gautreaux, Degan, Blanchard & Nash, Baton Rouge, LA, for Defendants/Appellees, Safeco Insurance Company and American Economy Insurance.
    Nan Maria Landry, Lafayette, LA, for Defendant/Appellee, J & A Auto Supply, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| Robert G. Nugent and Marion Elaine Chandler Nugent (Lessors), claim that the trial court erred by granting a summary judgment in favor of Safeco Insurance Company (Safeco). Lessors’ building was damaged in a fire while under lease to J & A Auto Supply, Inc. (J & A). The trial court found that there was no coverage under Safeco’s policy for losses the Lessors claimed. We reverse because there is a question of material fact as to the cause of the fire.

I.

ISSUE

We shall consider whether there is a genuine issue of material fact regarding the cause of the fire where: (1) because of the fire’s intensity and the resulting destruction of the evidence, the cause could not be established with certainty; and, the fire’s genesis was in the area where a person not licensed as an electrician installed electrical wires.

II.

FACTS

Lessors owned a building that they were renting to J & A at the time of the fire. James Morrison owned J & A and operated its auto supply business. At the time of the fire, an insurance policy issued by Safeco, with J & A as an insured, was in effect. Under the policy, J & A had both loss and liability coverage. The policy also contained an endorsement that included managers or lessors of the premises as additional insureds for liability purposes.

Morrison was not a licensed electrician, but, sometime after he rented the building from the Lessors, he installed electrical wiring in the building. This work was not inspected or approved by anyone. Morrison could not state with certainty |2what gauge wire he installed but admitted that an installation of a wrong gauge wire could lead to an overheating.

On April 27, 2008, a fire erupted in the rented building. The fire started in the area of the building where Morrison installed the electrical wiring. There were flammable substances near that area.

The insurance company conducted two investigations of the fire. A fire scene analyst conducted the first investigation. He could not determine the cause of the fire but could not rule out an electrical malfunction. The report stated that the stored fuel additives and paint thinners contributed to the intensity of the fire severely damaging the content of the building and making the evaluation very difficult.

An engineering examination of electrical equipment at the building was conducted next because an electrical failure was suspected of being the ignition source. The engineer similarly concluded that because of the numerous petroleum products inside the building, the fire reached “extremely high temperatures.” The wiring was burned, scattered around, and was missing. This “made it impossible to make a complete analysis of the electrical systems inside the store.” Thus, the engineer found no conclusive evidence as to how the fire began.

Safeco moved for summary judgment claiming that because Lessors were the additional insureds only on the liability portion of the insurance and not on the loss portion of the policy, they could not claim coverage under the loss provisions. Furthermore, because Lessors were not the ones being sued, they could not claim coverage under the liability portion of the insurance. Thus, Safeco argued, the only way for Lessors to establish coverage was to show J & A’s liability. Because the cause of the fire could not be established, Safeco averred that Lessors could not show that it was J & A’s negligence that caused the fire.

Lessors, on the other hand, argued that there was sufficient circumstantial evidence showing J & A’s liability for the summary judgment purposes. Furthermore, Rthey asserted that their loss was covered even without a showing of J & A’s negligence because as a Lessee, J & A had a contractual and a statutory obligation, under La.Civ.Code art. 2683, to return the leased premises in their original condition, excluding ordinary wear and tear. Safeco, on the other hand, argued that there was an exclusion in the policy of the contractually-assumed liability.

The trial court found no coverage for Lessors’ loss under Safeco’s policy. Lessors appealed. We now consider the appeal.

III.

STANDARD OF REVIEW

An appellate court reviews summary judgment de novo. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327.

IV.

LAW AND DISCUSSION

Despite the parties’ arguments to resolve this ease, we need not decide whether, absent negligence on the part of the Lessee, Lessee is nevertheless statutorily liable for damages to the leased property. Nor do we need to consider whether J & A contractually accepted an obligation to return the property the way it received it irrespective of the company’s negligence. Therefore, we do reach the question of whether Safeco sustained its burden of proof that an exception in its insurance policy, disguised as a definition, applies. This case is resolved by considering whether there is a genuine issue of material fact as to the cause of the fire.

|4Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “The burden of proof remains with the movant.” La.Code Civ.P. art. 966(C)(2). If the movant will not bear the burden of proof at trial, the movant need not negate all essential elements of the adverse party’s claim, action, or defense. Id. Instead, the movant must demonstrate that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Then, the adverse party must produce enough factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. There is no genuine issue of material fact if the adverse party fails to produce the factual support. Id.

The movant’s burden is an onerous one. Only when reasonable persons, after considering the evidence, could not disagree as to whether a genuine issue of material fact exists, the movant’s burden of persuasion is satisfied. See Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37. On the other hand, the adverse party’s burden is one of production, not persuasion: the adverse party must “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.... ” La.Code Civ.P. art. 966(C)(2) (emphasis added). As the legislature clearly stated, the burden of persuasion never shifts to the adverse party but “remains with the movant.” Id.

Here, Safeco did not carry its burden to show that there is an absence of factual support for one or more elements essential to the Lessors’ claim. Safeco argues that Lessors have no support for the causation element, i.e., that J & A’s negligence caused the fire. This assertion is inaccurate. The Lessors’ evidence sets forth the following specific facts. J & A’s owner, who is not a licensed electrician, installed electrical wires at the leased building. This | .^installation was not approved by any authority. The fire started in the area of the building where the wires were installed, and Morrison himself testified at his deposition that the installation of improper-gauge wires may lead to overheating. Furthermore, Morrison could not remember what gauge wire he installed, and, as Safeco’s experts articulated, the wires were destroyed in the fire and were missing.

Lessors point out that almost all the evidence was destroyed in the fire, making it very difficult to determine with any certainty what caused the fire. Nevertheless, they claim that they have enough circumstantial evidence, described above, to support the causation element at the summary judgment stage of the proceedings.

Ultimately it is Safeco’s burden to persuade that there is no genuine issue of material fact. Lessors need only satisfy their burden of producing evidence that sets forth specific facts that there is a genuine issue for trial. Based on these considerations, summary judgment was improper in this case.

V.

CONCLUSION

The trial court’s judgment granting a summary judgment in favor of Safeco Insurance Company is reversed. Costs of this appeal are assessed to Safeco Insurance Company.

REVERSED AND REMANDED.

      . The resolution of this question could be important because Lessors claim that there is an independent statutory obligation under La. Civ.Code art. 2683 to return the leased premises the way they were received, excepting ordinary wear and tear. If there is indeed this statutory obligation, then the exclusion of the contractually-accepted obligation to return property the way it was received may be inapplicable.


author: PICKETT, Judge.

text:
    Vial Rodney JOHNSON v. SAFEWAY INS. CO. OF LOUISIANA.
    No. 11-646.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Barry Warries Bolton, Attorney at Law, Bogalusa, LA, for Plaintiff-Appellant, Vial Rodney Johnson.
    Jeanne R. Perrin, Borne & Wilkes, Lafayette, LA, for Defendant-Appellee, Safeway Ins. Co. of Louisiana.

      Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

It The plaintiff, Vial Rodney Johnson, appeals a judgment of the trial court granting the motion for summary judgment filed by Safeway Insurance Company of Louisiana.

STATEMENT OF THE CASE

Johnson purchased car insurance from Safeway in 2002 and renewed the policy every six months. On January 13, 2010, he was injured in a car wreck. When the other driver’s liability insurance was insufficient to cover his damages, Johnson filed a claim on his uninsured/underinsured (UM) coverage with Safeway. Safeway denied the claim because Johnson had signed a waiver of UM coverage. Johnson filed suit against Safeway.

Following some discovery, both parties filed motions for summary judgment. Safeway claimed that it had on file a valid UM waiver signed by Johnson on August 20, 2005. Johnson claimed that when he insured two new vehicles with Safeway in September 2008, a new policy was created for which he did not waive UM coverage.

The trial court heard both motions on March 9, 2011. At the conclusion of the hearing, the trial court granted Safeway’s motion for summary judgment and denied Johnson’s motion. A judgment dismissing Johnson’s case with prejudice was signed on the same date. Johnson now appeals.

ASSIGNMENTS OF ERROR

On appeal, Johnson asserts four assignments of error:

1.The trial court erred when it concluded a finding of no genuine issue of material fact based solely upon
appellant’s prior history of signed rejection forms without considering that the addition of vehicles occurred at the beginning of a policy renewal period.

2. The trial court erred when it failed to consider the effect of appellant’s active policy at the time of the incident and the fact that he had added |2two additional, different vehicles to his policy without signing a new rejection form while the amount of the policy increased.

3. The trial court erred when it found that appellant had rejected uninsured motorist coverage.

4. The trial court was unreasonable in concluding that regardless of whether the policy amount increased, as long as an agent does not change the policy number, a vehicle is substituted even if deletions and additions of cars are made during separate renewal periods.

DISCUSSION

We review summary judgments de novo. Doerr v. Mobil Oil Corp., 00-947 (La.12/19/00), 774 So.2d 119. The reviewing court “asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750

The crux of Johnson’s argument is that when he insured two additional vehicles with Safeway in September 2008, he intended to create a new insurance policy. A new policy would require Johnson to execute a new UM waiver form. His argument ignores the plain text of La.R.S. 22:1295(l)(a)(ii) (emphasis added):

(ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An Rinsured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

In this case, the evidence is clear that Johnson signed a form, approved by the commissioner of insurance, rejecting UM coverage on five different occasions: September 24, 2004, September 30, 2004, February 14, 2005, May 31, 2005, and August 20, 2005. Each of these forms listed Johnson as the insured and the policy number as 1028462. Johnson substituted, added, or removed vehicles several times, but from September 24, 2004, to the date of the accident, all vehicles were insured by Safeway under the same policy number. While the number of vehicles changed, at no time did the limits of liability change. Therefore, the valid UM rejection form Johnson signed on August 20, 2005, was still valid when he added two new vehicles to the policy on September 12, 2008. Thus, on the date of the accident, there was a rebut-table presumption that the Safeway insurance policy did not include UM coverage. Johnson presented nothing to the court below to rebut that presumption. We find no genuine issue of material fact. This is exactly the situation covered by La.R.S. 22:1295. The cases cited by Johnson, which reference the statute before it was amended in 2000, are irrelevant to the disposition of this case.

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, Yial Rodney Johnson.

AFFIRMED.


author: EZELL, Judge.

text:
    Sherry JULIAN-ROBINSON v. LAFAYETTE PARISH SCHOOL BOARD.
    No. CA 11-712.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Brian Francis Blackwell, Blackwell & Associates, Baton Rouge, LA, for Plaintiff/Appellant, Sherry Julian-Robinson.
    Dawn L. Morris, Law Office of Dawn L. Morris, Lafayette, LA, for Defendant/Ap-pellee, Lafayette Parish School Board.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

|T Sherry Julian-Robinson appeals the decision of the trial court granting an exception of no cause of action in favor of the Lafayette Parish School Board (LPSB). The trial court held that Mrs. Julian-Robinson was not able to state a cause of action under La.R.S. 17:444 in her action seeking a writ of mandamus against the LPSB. We disagree and, for the following reasons, reverse and remand this matter back to the trial court below.

Mrs. Julian-Robinson is a tenured teacher in the Lafayette Parish school system. She was promoted to assistant principal of Live Oak Elementary in 2006 and has remained in that position ever since. Her initial promotional contract was for two years as required under La.R.S. 17:444. Her contract was renewed in 2008, again for the proper two-year time period. However, during the 2009-2010 school year, her superintendent recommended that her second renewal contract be for only one year, as a result of several areas listed as “need[ing] improvement” on her performance evaluation for that year. The LPSB accepted the superintendent’s recommendation, renewing her contract for only one year.

Mrs. Julian-Robinson subsequently filed a writ of mandamus, claiming that the LPSB was legally obligated to renew her contract for a minimum of two years under La.R.S. 17:444. In response, the LPSB filed an exception of no cause of action, claiming that La.R.S. 17:444 is so ambiguous that a writ of mandamus could not be ordered. The exception was granted. From that decision, Mrs. Julian-Robinson appeals.

Mrs. Julian-Robinson asserts three assignments of error on appeal. She claims that the trial court erred in granting LPSB’s exception of no cause of action; that the trial court erred in finding that La.R.S. 17:444(B)(4)(a)(i) did not apply to renewal contracts, but initial promotional contracts only; and that the trial court erred in failing |2to issue a writ of mandamus ordering the LPSB to issue her a renewal contract for a term of no less than two years.

Because the proper interpretation of a statute is necessarily a question of law, we apply a de novo standard of review. See Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-582 (La.11/29/06), 948 So.2d 1087.

A writ of “mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty that ought to be performed.” Bonvillian v. Dep’t of Ins., 04-332, p. 4 (La.App. 1 Cir. 2/16/05), 906 So.2d 596, 599, writ not considered, 05-776 (La.5/6/05), 901 So.2d 1081. Further:

A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. LSA-C.C.P. art. 3863. However, a writ of mandamus may only be issued in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. LSA-C.C.P. art. 3862. In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. Plaisance v. Davis, 2003-0767, p. 11 (La.App. 1st Cir.11/07/03), 868 So.2d 711, 718, writ denied, 2003-3362 (La.2/13/04), 867 So.2d 699.

Id. at 598. Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. Allen v. St. Tammany Parish Police Jury, 96-938 (La.App. 1 Cir. 2/14/97), 690 So.2d 150, 153, writ denied, 97-599 (La.4/18/97), 692 So.2d 455.

The trial court ruled that La.R.S. 17:444 was ambiguous as to the length of renewal contracts, thereby precluding it from issuing a writ of mandamus against LPSB in an area wherein it may be afforded discretion. We disagree.

Louisiana Revised Statutes 17:444 states in pertinent part (emphasis added):

(4)(a)(i) Except as provided otherwise by R.S. 17:54(B), relative to the maximum term of a superintendent of schools elected by a city or parish school board, the employment provided for in this Section shall be for a term of not less than two years, except when such employment is for a temporary position, nor more than four years, and said term shall be specified in a written contract, which shall contain performance objectives.

| aWhile the statute goes on to state that “[t]he board and the employee may enter into subsequent contracts of employment” and that “[t]the board shall negotiate and offer a new contract at the expiration of each existing contract,” that language in no way negates the prior dictate that all contracts shall be for a minimum of two years. While the LPSB may have discretion in negotiating contract lengths for terms between two and four years, that discretion simply does not extend to allow it to offer a contract for a term of less than two years. Any new, renewal, or other following contract should have been for two to four years as mandated by La.R.S. 17:444. See Smith v. Ouachita Parish Sch. Bd., 29, 873 (La.App. 2 Cir. 9/24/97), 702 So.2d 727, 733, writ denied, 97-2721 (La.1/16/98), 706 So.2d 978.

Accordingly, Mrs. Julian-Robinson has clearly stated a cause of action against LPSB and the trial court was incorrect in ruling otherwise. Therefore, we hereby reverse the decision of the trial court and remand this case for further proceedings in accordance with our rulings. For the above reasons, the ruling of the trial court is hereby reversed. These proceedings are remanded to the trial court. Costs of this appeal are assessed against the LPSB in the amount of $361.72.

REVERSED AND REMANDED.


author: LAMAR, Justice, for the Court: KING, Justice, dissenting:

text:
    Jeremy Dale DAVIS v. STATE of Mississippi.
    No. 2008-KA-01733-SCT.
    Supreme Court of Mississippi.
    Aug. 18, 2011.
    Rehearing Denied Nov. 3, 2011.

      Jeremy Dale Davis, appellant, pro se.
    Thomas M. Brahan, attorneys for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
   LAMAR, Justice, for the Court:

¶ 1. Jeremy Davis was convicted of aggravated assault on a law-enforcement officer, escape, burglary of a dwelling, and possession of a firearm by a felon. On appeal, his attorney filed a brief under Lindsey v. State, and this Court ordered additional briefing on the defendant’s Bat-son challenges. Davis and his attorney each filed briefs in which they provided only generalized assertions that the State had violated the Equal Protection Clause by exercising all six of its peremptory strikes against African-American jurors. After reviewing these briefs and the record, we find no error and uphold the trial court’s denial of each Batson challenge.

FACTS

¶ 2. At trial, Davis asserted that the State had engaged in a pattern and practice of excluding African-American jurors by using all six of its peremptory strikes to remove African Americans. In response, the State argued that it had tendered five African-American jurors, one of whom the defendant had struck, three who were on the petit jury, and one who was an alternate. The trial court found no prima facie showing of discrimination, but it permitted the State to offer its explanations for the strikes. The court specifically ruled:

I do not believe that the defense has made a prima facie showing of ... or pattern of the State excluding black jurors. However, if you would like to make a record on the ones you did exclude, I will be glad to hear those reasons. I will leave that up to you.

After the trial court’s ruling on the prima facie prong, the defendant offered no rebuttal. The trial court ruled the State had provided race-neutral reasons for the exclusion of the six jurors, but did not make an on-the-record finding as to each challenge. The trial court provided the following explanation of its ruling on the Batson challenges:

Again, the Court finds that the defendant failed to establish a prima facie pattern on behalf of the State in excluding black jurors. However, even assuming a prima facie showing was made by the defendant, the State has given racially-neutral reasons for the exclusion— for the exclusion of black jurors. A copy of the Juror information Sheet for Juror No. 10, Angelo Jo—or rather, Edward Anthony Nickson, Juror No. 10, will be made part of this record'for the purpose, sole purpose, of this hearing.

DISCUSSION

¶ 3. In Batson v. Kentucky, the United States Supreme Court found that the Equal Protection Clause prohibits a party from exercising peremptory strikes based on race. This protection extends to the striking of even one juror on account of race. A Batson challenge has three steps:

(1) the defendant must make out a pri-ma facie ease by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; (2) once the defendant has made out a pri-ma facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible, race-neutral justifications for the strikes; and (3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.

¶ 4. Once the State offers a race-neutral explanation and the trial court rules on the ultimate question of purposeful discrimination, the question of whether the defendant made a prima facie showing becomes moot. In this case, the trial court ruled on the ultimate question of purposeful racial discrimination, even though it initially found the defendant had failed to make a prima-facie case of discrimination. We will limit our analysis to the second and third steps of Batson.

¶ 5. Under the second step of Bat-son, the State must offer a race-neutral reason for the strike. A race-neutral reason does not have to be “persuasive, or even plausible; so long as the reasons are not inherently discriminatory.” In considering the State’s reasons, the trial court necessarily must evaluate the prosecutor’s demeanor, as this will be the best evidence of discriminatory intent.

¶ 6. In response to the race-neutral reason, the defendant “must be given an opportunity to rebut the reasons offered by the proponent” to show the reasons actually are pretextual. This Court has held the following can be evidence of pretext:

(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge;
(2) the failure to voir dire as to the characteristic cited; ... (3) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.

If the defendant fails to rebut the proffered reasons, the trial court must base its decision on the reasons given by the State. As the movant, the defendant has the ultimate burden to establish racial discrimination and must ensure that the appellate record supports its contention of reversible error.

¶ 7. This Court reviews the trial court’s Batson ruling “with great deference” and will not reverse unless it is “clearly erroneous or against the overwhelming weight of the evidence.” While the trial court should make on-the-record determinations of race-neutral reasons, this Court will not necessarily reverse and remand for its failure to do so. “[Wjhere a trial judge fails to elucidate such a specific explanation for each race neutral reason given, we will not remand the case for that Raison-related purpose alone. This Court is fully capable of balancing the Batson factors in cases[.]” However, the United States Supreme Court has held that when a party offers two race-neutral reasons for a peremptory strike, one of which is based on demeanor, the record must support one of the reasons if the trial court denies the challenge without making an on-the-record determination. Otherwise, the appellate court is unable to discern whether the trial court credited the demeanor-based reason. However, the Supreme Court subsequently rejected the argument that Snyder requires the trial court to reject a demeanor-based explanation for a peremptory challenge when the court failed to personally observe or recall the juror’s demeanor. It also noted that:

where the explanation for a peremptory challenge is based on a prospective juror’s demeanor, the judge should take into account [“‘all possible explanatory factors’ ” and] any observations of the juror that the judge was able to make during the voir dire. But Batson plainly did not go further and hold that a demeanor-based explanation must be rejected if the judge did not observe or cannot recall the juror’s demeanor.

¶ 8. With these standards in mind, we turn to the State’s arguments before the trial court in support of its peremptory strikes.

Batson Challenges

Leotis Randle Hubbard

¶ 9. The State argued that it had tried to strike Hubbard for cause, since it recently had prosecuted Hubbard’s granddaughter. The State further argued that, when it had asked the potential jurors during voir dire whether any family member had been prosecuted by the State, Hubbard had failed to respond. Hubbard responded in the affirmative only after the State specifically had questioned Hubbard about her granddaughter’s case. The State argued that Hubbard had lied by omission by failing to volunteer that her granddaughter recently had been prosecuted.

Edward Anthony Nickson

¶ 10. The State argued that Nickson had failed to fill out his jury questionnaire appropriately. The trial judge made the questionnaire an exhibit to the record. For name, Nickson had listed “Nickson A. Nickson” and had left his birth date blank. He also had marked “married” but had failed to list his spouse. He had listed his employer’s name as “Townhouse” but had failed to list his occupation. The State also stated that this juror had seemed “goofy” and “odd.”

Jacqueline Sharp McMillan

¶ 11. The State asserted that a number of law-enforcement officers had helped it pick the jury, and that the dispatcher of the Aberdeen Police Department was “pretty certain” that some of McMillan’s family members had been arrested by the Aberdeen police.

Patrick G. Lockett

¶ 12. The State argued that Lockett seemed “hostile” and refused to make eye-contact.

Lois Ann Taylor

¶ 13. The State asserted that it had not even realized that Taylor was African American, but it had struck her because an officer had informed it that Taylor’s husband had “pretty severe problems” and had been arrested a number of times.

Rachel Marie Moore

¶ 14. The State argued that it had learned Moore’s brother had been involved in a police shooting.

Analysis of Batson Challenges

¶ 15. While not necessarily dispos-itive, each of the State’s reasons has been upheld by this Court as being race-neutral. However, the trial court failed to make on-the-record determinations as to each challenge, and the State offered demeanor-based reasons for striking two jurors, Lockett and Nickson. So we must determine whether the requirements of Snyder have been violated.

¶ 16. While the State offered a demean- or-based reason as one of two explanations for striking Juror Nickson, the trial judge himself included the incomplete jury questionnaire as part of the record. Therefore, the record supports the nondemeanor-based, race-neutral reason for Juror Nick-son’s exclusion. Furthermore, the State offered only a demeanor-based reason for its strike of Juror Lockett, so the trial court must have credited this race-neutral reason. In accord with Snyder, the record supports the race-neutral reasons offered by the State for its strike of Jurors Lock-ett and Nickson.

¶ 17. Furthermore, “[t]his Court must consider the overall context of the reasons given for peremptory strikes.” Davis failed to meet his burden of proof and persuasion before the trial court and this Court. The record contains no evidence regarding the racial composition of the jury panels or the petit jury that could help determine whether the State’s reasons were actually pretextual. And Davis failed to offer any rebuttal to the State’s proffered reasons for striking the six jurors. We find nothing in the record which demonstrates that the trial court erred in accepting the State’s race-neutral reasons for striking each juror.

CONCLUSION

¶ 18. We uphold the trial court’s denial of Davis’s Batson challenges. Its Batson ruling was not clearly erroneous or against the overwhelming weight of the evidence. Therefore, Davis’s conviction and sentence are affirmed.

¶ 19. COUNT I: CONVICTION OF AGGRAVATED ASSAULT ON A POLICE OFFICER AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS A HABITUAL OFFENDER, AND PAYMENT OF A FINE OF $5,000.00, AFFIRMED. COUNT II: CONVICTION OF ESCAPE AND SENTENCE OF ONE (1) YEAR IN THE CUSTODY OF THE MONROE COUNTY SHERIFF, AFFIRMED. COUNT III: CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $10,000.00, AFFIRMED. COUNT IV: CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $5,000.00, AFFIRMED. SENTENCES IN COUNTS I, III AND IV SHALL NOT BE REDUCED OR SUSPENDED AND SHALL BE WITHOUT THE POSSIBILITY OF PAROLE OR PROBATION. ALL SENTENCES SHALL RUN CONSECUTIVELY.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH AND PIERCE, JJ„ CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.

KING, Justice, dissenting:

¶ 20. With appropriate respect for the majority, I am compelled to dissent.

¶ 21. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that the exercise of peremptory challenges against prospective jurors based upon race was constitutionally prohibited discrimination and violated a defendant’s right to a fair trial. Previously, the Supreme Court had held that all qualified persons are entitled to serve as jurors, and that exclusion from jury service based upon race was a denial of equal protection. Strauder v. West Virginia, 100 U.S. 303, 10 Otto 303, 25 L.Ed. 664 (1879) (abrogated on other grounds by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)).

¶ 22. I believe that these two legal principles are interrelated and of necessity must be considered together when considering the jury-selection process.

¶ 23. A criminal defendant, acting through counsel or acting pro se, has the right to raise an objection if he believes that the State has engaged in prohibited discrimination in the jury-selection process. Davis questioned the State’s use of peremptory challenges against Blacks. The State offered what are described as facially race-neutral reasons for the exercise of its peremptory challenges. One of the State’s strikes was exercised against an individual who was said to have inappropriately completed the juror-information card, and who was described as “goofy” and “odd.” No standard was articulated in the record by which to measure “goofy” or “odd.” A second strike was used against a prospective juror, Patrick Lockett, who was described as seemingly hostile and refusing to make eye-contact. The record contained no articulation of any specific seemingly hostile actions by this person. Nor, I would note, is there any requirement that a prospective juror make or maintain eye-contact with counsel.

¶ 24. Compounding the failure of the prosecution to articulate specific instances of the eomplained-of demeanor of prospective jurors is the failure of the trial court to review these matters independently and make appropriate on-the-record findings. As the Supreme Court noted in Snyder, “In addition, race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g. nervousness, inattention) making the trial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008).

¶ 25. Where the reasons for the strike involve either the demeanor of the attorney or the prospective juror, this Court cannot make that determination from the cold record. Id. at 479, 128 S.Ct. 1203 (stating that “nervousness cannot be shown from a cold transcript”); Gary v. State, 760 So.2d 743, 758(56) (Banks, P.J., dissenting) (Miss.2000). Instead, it must rely upon the on-the-record findings of the trial judge. Where the record contains no such findings, this Court should either remand for a Batson hearing or reverse for a new trial. Id. (citing Puckett v. State, 737 So.2d 322, 337 (36-38) (Miss.1999)). The record before this Court contains no such findings by the trial court.

¶ 26. Additionally, the full, stated reason for striking Lockett appears to be contradictory. The contradictions in the stated reasons for excluding Lockett should have, at the least, required the trial judge to view them independently and address on the record the question of pretext. The full statement by the prosecutor was:

Juror No. 18, Patrick G. Lockett, Ms. Emerson related to me upstairs, actually, I — when we were in discussions regarding making the first tender to Mr. Brahan, Mr. Lockett looked very good on paper, and I liked him just — he didn’t respond to any questions during voir dire, but I liked him from his form, and when I suggested that we tender him, Ms. Emerson had a concern, I believe, because she — essentially what she said was she picked up a bad vibe from him. She thought he seemed hostile in the way he was looking at her, responding to her, and she was — she attempted during voir dire to make eye contact with him. There were times when — and the Court has done voir dire a lot more times then anybody else in here has. There are times when you are doing voir dire and you essentially try to make contact with some jurors. You ask a question, you know, can everyone do that, can you follow the law as the judge gives it to you, what have you, and you basically have them nodding, and you are attempting to get eye contact. She continually attempted to do so with Mr. Lockett and was never able to do so, and that’s essentially what turned the wheels the other way in regards to Mr. Lockett. He was going to be tendered before ... essentially before Ms. Emerson related her concerns.

While it is true that, in some cases, this Court can review the cold trial court record and balance the Batson factors, that is not true in every case, and the prosecutor’s statements should not be embraced by this Court as an immutable article of faith.

¶ 27. By way of example, despite having read the voir dire several times, I have seen absolutely nothing in that record which validates the supposedly facially race-neutral reasons for excluding Patrick Lockett. Nothing in the record establishes that Lockett responded to Emerson in a hostile way. Nothing in the record establishes that Lockett refused to make eye-contact with Emerson. Nothing in the record establishes that Emerson continually attempted to make eye-contact with Lockett and he refused.

¶ 28. That these matters were not established is made clear by the statement of Emerson’s co-counsel Joyner, who despite being present in the courtroom and fully participating in the process, was totally unaware of the occurrence of any of these claimed actions by Lockett. Indeed, Joyner stated that he had desired to have Lockett on the jury until Emerson said that “she picked up a bad vibe from him.”

¶ 29. Where no on-the-record review on the question of pretext is conducted, these types of reasons, “goofy,” “odd,” “seemed hostile,” and failure to make eye-contact are an open invitation to engage in discriminatory conduct. Where this Court seemingly, mechanically approves such action, it places its imprimatur on that invitation to engage in discriminatory conduct.

¶ 30. The defendant, as happens all too often, raised the issue of Batson, but failed to question in any meaningful manner the supposedly race-neutral reasons offered by the State. However, the defendant’s failure should not serve as an excuse for the failure of the trial court to honor its responsibility to ensure that all parties to a judicial proceeding, including prospective jurors, are treated fairly. Although, as in this case, where the supposedly race-neutral reasons are matters of demeanor, there is little if any rebuttal that the defendant can offer. Indeed, in matters of demeanor, the only real issue is whether or not the trial judge observed the same conduct.

¶ 81. To allow the trial court to seemingly pay only lip service to its Batson obligation denies equal protection to the second party who has been victimized by impermissible discrimination, that is the prospective juror, who has been wrongfully excluded. Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 329, 90 S.Ct. 518, 523, 24 L.Ed.2d 549 (1970) (holding that “[pjeople excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion”). The defendant can object to the State’s actions. However, the prospective juror who has been wrongfully discriminated against has no right to object in that proceeding. But even worse, not being a part of the selection process, he generally will be unaware that the State discriminated against him. That person’s only line of protection from impermissible discrimination in the jury-selection process is the watchful eye of the trial judge, seeking to independently determine whether the proffered reasons are actually a pretext for impermissible discrimination.

¶ 32. When the prima facie requirement is satisfied under Batson, I would, without exception, mandate an on-the-record review by the trial judge for pretext, without regard to whether the defendant rebuts the State’s reasons.

¶ 33. Where, as in this case, the reasons given are matters of demeanor, which cannot be observed in the appellate record, and the trial court has failed to make an on-the-record review for pretext, this Court should reverse and remand for a new trial.

¶ 34. Accordingly, I dissent and would reverse and remand.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      .In Lindsey v. State, this Court set forth various procedures with which an attorney must comply when he or she represents an indigent criminal defendant and asserts there are no arguable issues for appellate consideration. Lindsey v. State, 939 So.2d 743, 748 (Miss. 2005).

      . Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . The record does not show the racial composition of the panels or the petit jury.

      . Batson, 476 U.S. at 85-86, 106 S.Ct. 1712. Batson has been extended to cover other protected classifications as well as challenges brought by the prosecution. Pitchford v. State, 45 So.3d 216, 225 n. 8 (Miss.2010).

      . Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008).

      . Pruitt v. State, 986 So.2d 940, 942-43 (Miss. 2008) (citing Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129, 138 (2005)).

      . Estate of Jones v. Phillips, 992 So.2d 1131, 1143 (Miss.2008).

      . Chamberlin v. State, 989 So.2d 320, 337 (Miss.2008).

      . Id.

      . Snyder, 552 U.S. at 477, 128 S.Ct. 1203.

      . Estate of Jones, 992 So.2d at 1144.

      . Pruitt, 986 So.2d at 944.

      . Pitchford v. State, 45 So.3d 216, 227 (Miss. 2010).

      . See Stewart v. State, 662 So.2d 552, 559 (Miss. 1995).

      . Estate of Jones, 992 So.2d at 1144.

      . Burnett v. Fulton, 854 So.2d 1010, 1016 (Miss.2003) (quoting Gary v. State, 760 So.2d 743, 748 (Miss.2000)).

      . Gary, 760 So.2d at 748.

      . Snyder, 552 U.S. at 479, 485, 128 S.Ct. 1203.

      . Id.

      . Thaler v. Haynes, — U.S. —, —, 130 S.Ct. 1171, 1174, 175 L.Ed.2d 1003 (2010).

      . Id. (quoting Batson, 476 U.S. at 95, 106 S.Ct. 1712).

      . Pruitt, 986 So.2d at 945 (cautioning that reasons found to be race-neutral in one case do not automatically render them race-neutral in any other case).

      . Gary v. State, 760 So.2d 743, 749 (Miss. 2000) (failure to complete jury questionnaire and failure to disclose information); Magee v. State, 720 So.2d 186, 188-89 (Miss.1998) (family member charged or convicted with a crime); Woodward v. State, 726 So.2d 524, 531 (Miss. 1997) (demeanor-based reason of hostility); Harper v. State, 635 So.2d 864, 868 (Miss. 1994) (demeanor-based reason of lack of eye-contact).

      . Burnett v. Fulton, 854 So.2d 1010, 1015 (Miss.2003).

      . Pitchford v. State, 45 So.3d 216, 228 n. 17 (Miss.2010) (noting that trial court reviews totality of circumstances, but this does not include those circumstances, facts, and arguments that the defendant fails to assert).