author: KEATY, Judge.

text:
    Kenneth Dale KELLY, et ux. v. BOISE BUILDING SOLUTIONS, et al.
    No. 11-1116.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      Jerold Edward Knoll, Jr., Attorney at Law, Marksville, LA, Amos H. Davis, Attorney at Law, Baton Rouge, LA, for Plaintiffs/Appellees, Kenneth Dale Kelly, Jackie Denise Kelly.
    W. Michael Adams, Scott R. Wolf, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, Keith M. Pyburn, Larry Sorohan, Fisher & Phillips LLP, New Orleans, LA, for Defendants/Appellants, Boise Cascade, L.L.C., Old Republic Insurance Company.
    John A. Brittain, Attorney at Law, Natchitoches, LA, for Defendant/Appellant, Dwayne Myers.
    Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| Hhis appeal stems from an incident between co-workers at their place of employment in which one of the workers was severely injured. For the following reasons, we hold that the trial court did not err in granting a motion for directed verdict in favor of the injured employee based on its finding that his co-worker committed an intentional tort upon him while in the course and scope of their employment. We further find that the trial court did not err in refusing to grant the defendants’ request that they be given an offset against the amount they owe pursuant to the judgment for any future workers’ compensation payments that they may pay to the injured employee. Thus, we affirm.

FACTS AND PROCEDURAL HISTORY

Kenneth Dale Kelly was a forklift operator employed by Boise Cascade, L.L.C. (Boise) at its engineered wood products facility in Lena, Louisiana. On August 28, 2007, Kelly was sitting at a desk in the Boise shipping office with his feet propped up on a drawer when his co-worker, Dwayne Myers, moved toward him and, despite his protestations, put his hands on Kelly. Thereafter, the chair toppled over and Kelly fell to the floor injuring his back, which had previously been operated on in 2000 and 2002. As a result of his injuries, Kelly filed suit against Myers and Boise.

The matter proceeded to a five-day jury trial on December 13, 2010. After plaintiffs rested their case, the defendants moved for a directed verdict, contending that plaintiffs failed to prove by a preponderance of the evidence that Myers’ actions amounted to an intentional act or that Myers’ actions occurred during the 12course and scope of his employment with Boise. The trial court denied the defendants’ motion on the basis that reasonable minds could differ regarding whether Myers acted intentionally and whether Boise should be held vicariously liable for Myers’ actions. The defendants then presented their defense to Kelly’s claims, after which they rested their case and re-urged their motion for directed verdict. The trial court denied the defendants motion for the same reasons that it had rejected their original motion.

Thereafter, plaintiffs moved for a directed verdict arguing that reasonable minds could not reach any conclusion other than that plaintiffs had proven that: 1) Myers committed the intentional tort of battery upon Kelly; 2) the battery occurred within the course and scope of Myers’ employment with Boise; 3) Kelly was not guilty of comparative fault for having caused or contributed to the accident, and 4) Kelly was injured as a result of Myer’s conduct. The trial court granted plaintiffs’ motion as regarding the first two issues and the remaining issues were submitted to the jury.

The jury determined that Kelly was injured in the August 28, 2007 accident and that Kelly was at fault in causing his own injuries. Fault was apportioned 30% to Kelly and 70% to Myers. The jury assessed Kelly’s total damages at $944,940.00 and his wife’s loss of consortium damages at $50,000.00. In a written judgment dated March 1, 2011, judgment was rendered in favor of plaintiffs and against Myers, Boise, and Old Republic, in solido, for the amounts awarded by the jury, plus interest and costs.

Plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) seeking an increase in their awards for general and special damages, especially in |3those categories where no damages were awarded, such as for past medical expenses, past lost wages, past and future mental anguish, loss of enjoyment of life, and physical disability. The defendants opposed the motion, contending that the jury’s verdict should stand given the conflicting evidence adduced at trial and the great discretion afforded to a jury when assessing damages. Alternatively, the defendants submitted that if the trial court were to grant plaintiffs’ motion and award plaintiffs any amounts for past medical expenses or past lost wages, then the defendants would be entitled to a credit based on the amounts that Boise had previously paid to or on behalf of Kelly for medical and indemnity benefits. After a hearing, the trial court granted the motion in part, amending the jury’s award of zero for past medical expenses and past lost wages to $62,017.30 and $129,667.07 respectively, and granting Boise a credit against those awards for the workers’ compensation medical and indemnity benefits it paid to Kelly through the date of the verdict; plaintiffs’ JNOV was denied in all other respects. The effect was to award Kelly an additional $48,748.50 in past lost wages, raising the judgment in plaintiffs’ favor to $993,688.50.

Boise, Old Republic, and Myers now appeal, asserting that: 1) the trial court erred in directing a verdict that an alleged intentional battery committed by Myers could be deemed in the course and scope of his employment with Boise for purposes of respondeat superior; 2) the trial court erred by making the first LeBrane factor dispositive of whether Boise could be liable for Myers’ battery upon Kelly; 3) the trial court erred in directing a verdict that a battery occurred; 4) the trial court erred in directing a verdict that Myers’ actions were intentional acts|4for purposes of evaluating workers’ compensation exclusivity; 5) the trial court erred in failing to direct a verdict in Boise’s favor; and 6) the trial court erred in failing to grant Boise an offset for future workers’ compensation benefits against the tort judgment awarding Kelly damages for future medical expenses and future lost wages.

DISCUSSION

Plaintiffs ’ Answer to Appeal

Boise’s motion for suspensive appeal was filed and granted on May 19, 2011. Boise filed its appeal bond on May 26, 2011. Plaintiffs filed an answer to appeal in the trial court on June 2, 2011. The record was lodged in this court on September 12, 2011. Boise filed its appellant brief in this court on October 14, 2011. Plaintiffs filed a pleading entitled in part, “Original Brief of Appellees Kenneth Dale Kelly and Jackie Denise Kelly in Answer to Appeal Filed by Boise” in this court on November 14, 2011. In response, Boise filed a motion to strike plaintiffs’ answer to appeal. Thereafter, plaintiffs filed a memorandum in opposition to Boise’s motion to strike, along with a motion to supplement the record with the answer to appeal that they had previously filed in the trial court. Boise opposed plaintiffs’ motion to supplement. We referred both motions to the merits.

In its motion to strike, Boise relies on this court’s holding in Smoot v. Hernan dez, 08-1121 (La.App. 3 Cir. 3/4/09), 6 So.3d 352, a matter containing facts remarkably similar to those presented in this matter. In Smoot, we wrote:

The record reflects that the trial court granted Mr. Hernandez’s appeal on July 16, 2008, and the suspensive appeal bond was filed contemporaneously therewith. At that time, in accordance with La. Code Civ.P. art. 2088, the trial court became^ divested of jurisdiction over all matters on appeal. An Answer to Appeal was subsequently filed by Ms. Smoot in the trial court, i.e., the Twelfth Judicial District Court, on September 16, 2008. Although this filing |fiwas within fifteen days of the lodging of the record, the trial court no longer had jurisdiction. Thus, the Answer to Appeal filed on behalf of Ms. Smoot in the Twelfth Judicial District Court, although timely, was improvidently filed in the wrong tribunal. Therefore, the Answer to Appeal filed by Ms. Smoot in the trial court is not properly before this court.
Additionally, the Answer to Appeal and Opposition to Original Brief which was filed with this court on October 23, 2008 is deficient for two other reasons. First, as previously stated by this court, “[a] brief submitted by the appellee does not satisfy the requirement of [La.Code Civ.P. art. 2133.] (citation omitted).” Broussard v. Leger, 624 So.2d 1304,1307 (La.App. 3 Cir.1993), writ denied, 93-2762 (La.1/7/94), 631 So.2d 452 (quoting Sears, Roebuck & Co. v. Appel, 598 So.2d 582, 584 (La.App. 4 Cir.1992)). Although Ms. Smoot’s Answer to Appeal and Opposition to Original Brief states that Ms. Smoot was entitled to a modification of the general damage award, it was erroneously set forth in the brief and not a pleading. As such, it is insufficient to satisfy the requirements of an answer to appeal. Secondly, the Answer to Appeal and Opposition to Original Brief is deficient for its failure to satisfy the time requirements of La.Code Civ.P. art. 2133. This court has previously held that it will not consider an answer to appeal that is filed more than fifteen days after the return date or date of lodging, whichever is later. Martin v. G. & A Limited, I, 604 So.2d 1014 (La.App. 3 Cir.), writs denied, 607 So.2d 557 (La.1992). For the foregoing reasons, we find that Ms. Smoot’s answer to appeal seeking a modification of the general damages awarded by the trial court pursuant to the JNOV is not properly before this court and will not be considered.

Id. at 361-62. (Footnote omitted.)

We find no meaningful distinction between the instant matter and Smoot, we conclude that plaintiffs’ answer to appeal was not timely filed, and we will not consider their request for modification of the trial court’s judgment.

Law

We will address defendants’ first five assignments of error together because they are interrelated. As previously mentioned, plaintiffs moved for a directed verdict under La.Code Civ.P. art. 1810 at the close of the defendants’ ease. The trial court granted the motion in part, finding that reasonable minds could not reach any conclusion other than that Myers committed an intentional battery on Kelly within the course and scope of their employment with Boise.

IsA directed verdict is appropriately granted in the event that the “facts and inferences are so overwhelming in favor of the moving party that the court finds that reasonable men could not arrive at a contrary verdict.” Guste v. Nicholls Coll. Found., 564 So.2d 682, 689 (La.1990). On review, “an appellate court also considers whether the evidence submitted indicates that reasonable triers of fact would be unable to reach a different verdict.” McNabb v. Louisiana Medical Mutual Insurance, 03-0565 (La.App. 3 Cir. 11/5/03), 858 So.2d 808, 816-17. “However, if there is substantial evidence opposed to the motion, that is, evidence of such a quality and weight that reasonable and fair-minded men exercising impartial judgment might reach different conclusions, the motion should be denied, and the case should be submitted to the jury.” Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544/1545 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 478, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094. On review, an appellate court considers the evidence under the substantive law applicable to the non-moving party’s claim.

Gibson v. Digiglia, 07-1028, p. 3 (La.App. 3 Cir. 3/5/08), 980 So.2d 739, 742.

The substantive law applicable to plaintiffs’ claims involves the interplay of three areas of law: tort, vicarious liability, and workers’ compensation. In Caudle v. Betts, 512 So.2d 389, 390-91 (La.1987) (citations omitted) (footnote omitted), the supreme court explained:

The Louisiana Worker’s Compensation Act provides for compensation if an employee receives personal injury by accident arising out of and in the course of his employment. La.R.S. 23:1031. As a general rule, the rights and remedies granted to an employee therein are exclusive of all rights and remedies against his employer, any officer or principal of the employer, or any co-employee. La. R.S. 23:1032. However, an exception to this rule provides that nothing therein shall affect the liability of an employer, principal, officer, or co-employee resulting from an “intentional act”. Id.
In interpreting the statute, this court has held that compensation shall be an employee’s exclusive remedy against his employer for an unintentional injury covered by the act, but that nothing shall prevent an employee from recovering from his employer under general law for an intentional tort. Bazley v. Tortorich, 397 So.2d 475 (La.1981). We concluded that in drawing a line between intentional and unintentional acts the legislative aim was to make use of the well established division between intentional torts and negligence. Id. at 480.
In Bazley this court briefly explained the basic difference between an intentional tort and a negligent act but did not profess to set forth a complete exposition of either branch of tort law. Intentional tort law encompasses far more than could be explicated reasonably in a single opinion. Consequently, when an employee |7seeks to recover from his employer for an intentional tort, a court must apply the legal precepts of general tort law related to the particular intentional tort alleged in order to determine whether he has proved his cause of action and damages recoverable thereunder.
A harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact, is a battery. The intention need not be malicious nor need it be an intention to inflict actual damage. It is sufficient if the actor intends to inflict either a harmful or offensive contact without the other’s consent.

In Reeves v. Structural Preservation Systems, 97-1465 (La.App. 3 Cir. 6/3/98), 716 So.2d 58, reversed on other grounds, 98-1795 (La.3/12/99), 731 So.2d 208, this court further interpreted Bazley, noting:

An injury is intentional, i.e., the product of an intentional act, only when the person who acts either consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or knows that result is substantially certain to follow from his conduct, whatever his desire may be as to the result.

In Baumeister v. Plunkett, 95-2270, pp. 3-4 (La.5/21/96), 673 So.2d 994, 996-97, the supreme court stated:

[T]his Court has held that in order for an employer to be vicariously liable for the tortious acts of its employee the “tortious conduct of the [employee must be] so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” Barto v. Franchise Enterprises, Inc., 588 So.2d 1353, 1356 (La.App. 2d Cir.1991), writ denied, 591 So.2d 708 (1992) (quoting LeBrane v. Lewis, 292 So.2d 216, 217, 218 (La.1974)).
... [O]ur LeBrane v. Lewis decision considered the following factors in holding an employer liable for a supervisor’s actions in stabbing his fellow employee:
(1) whether the tortious act was primarily employment rooted;
(2) whether the violence was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
ls(4) whether it occurred during the hours of employment.
292 So.2d at 218. This does not mean that all four of these factors must be met before liability may be found.

The Incident

Both Kelly and Myers held the position of Production Tech Y (PTV) forklift operator at Boise. Their chief responsibilities were transporting wood in the facility throughout its processing and completing paperwork concerning Boise’s inventory. The forklifts contained CB radios which the operators used to communicate with each other when in their forklifts. Walkie-talkie’s were available for speaking to other Boise employees within the plant. The incident in question occurred on the morning of August 28, 2007, in Boise’s shipping office, where Kelly had gone after being notified that his forklift was malfunctioning. He was at a desk checking inventory on a computer screen, leaning back in a rolling chair with his feet propped up about six inches above the floor on one of the desk’s bottom left drawers. Two other PTVs, Tommy McCarty and Clay Barron, were also in the shipping office, and McCarty had called Myers and asked him to bring a cut sheet to the office.

Kelly testified that when Myers arrived at the office, he told Kelly to call Danny, another employee, to come help to complete the cut sheet. When Kelly refused, Myers’ expression changed and Kelly sensed that the situation was about to “get hairy.” Myers then asked Kelly if he was telling him “no,” to which Kelly replied in the affirmative. At that point, Myers began to approach Kelly, which caused Kelly to take his foot off the desk drawer and sit up on the front of his chair. Kelly then told Myers, “Dwayne, don’t. Don’t mess with me, Dwayne,” but Myers continued toward him. According to Kelly, Myers grabbed his right arm and preached up under his calf, picked him up out of the chair, and threw him to the concrete floor. Afterwards, Myers just stood there looking at him on the floor before leaving the office. Kelly remained on the floor for a few minutes because of the severe pain he was experiencing. Barron later helped him up into a chair, and he waited for his supervisor, Shad Roberts, to arrive so that he could report the accident to him.

Myers told a different story. He testified that he asked Kelly to call another employee because there was a CB radio close to him. When Kelly refused to offer him any help, Myers reached across Kelly to retrieve the CB radio from the desk in front of Kelly and, as he did so, he may have lightly brushed against Kelly. Kelly then “went all the way back” and Myers grabbed his legs “to prevent the chair from collapsing all the way over.” Kelly ended up on the ground, and, according to Myers, they all “kind-of laughed.” Myers asked Kelly if he was okay, and when Kelly did not answer, Myers realized that it was serious and he left the office because he was “behind and ... in a big rush.” Myers testified that it was common knowledge in the shipping department that Kelly suffered from back problems; however, he denied knowing that Kelly had two prior back surgeries.

After the incident, an investigation was conducted by Barry Robinson, the superintendent of Boise’s shipping office. Roberts, the supervisor of the shipping department, was present during • most of that investigation. According to Robinson, the communications between Myers and Kelly on the morning of the incident were work related and involved Boise business. In his. opinion, the incident went beyond horseplay. Robinson testified that he questioned Kelly, Myers, McCarty, and Barron about the incident. McCarty and Barron confirmed that as Myers approached Kelly, Kelly told Myers not to touch or “mess with” him, which, in Robinson’s opinion, added credence to the version of events that Kelly relayed to |inhim. The email report that Robinson created regarding the incident, dated August 30, 2007, was submitted at trial as Joint Exhibit 2. In the report, Robinson noted that Kelly told him that Myers had reached down and lifted up his leg off the floor while reaching for his chest, which caused him to lean back in the chair until it flipped with Kelly in it. Kelly told Robinson that Myers was joking around, as he often did. According to the report, Myers demonstrated on Robinson how the accident had occurred, grabbing his leg and pushing on his chest. Myers explained that as the chair began to fall over backwards, he attempted to slow it down and keep it from hitting the floor hard. After his investigation, Robinson determined that Myers’ actions were in violation of Boise’s policy regarding unauthorized touching. Robinson drafted a Last Chance Agreement (LCA) which Myers signed on September 4, 2007. The LCA noted that Myers had been suspended during Boise’s investigation of the matter because of his having been counseled by management in the past about similar issues. According to the LCA, Myers’ “poor judgment was a safety violation and ... caused an injury to a fellow employee,” and Myers admitted that “the performance incidents did occur.” The LCA provided that in lieu of being terminated, Myers was being given one last chance to continue his employment with Boise.

Within a day or so of the accident, Roberts completed a Supervisor’s Incident Investigation report, which was submitted at trial as Joint Exhibit 1. The report summarized the incident as follows: “Ken was sitting in office chair at desk when another employee grabbed him by the leg & shoulder — chair turned over backwards.... ” The report stated that “horseplay on the part of one employee” was the root cause of the incident. An attachment to the report signed by Robinson stated that he and Roberts had inspected the rolling desk chair from the incident. The chair was several years old and reclined when no one was sitting it. Robinson |nhad reclined in the chair to test its stability and “never felt the chair get unstable.” The attachment noted that the subject chair was replaced on September 14, 2007.

In granting plaintiffs’ motion for directed verdict, the trial court noted that the jurisprudence indicated that directed verdicts should only be issued sparingly and that the standard for granting a directed verdict was very high. Nevertheless, after listening to all of the evidence, the trial court determined that “even under Mr. Myer’s description of what happened, there was an intentional touching” to which Kelly was objecting and which amounted to a battery regardless of whether Myers intended to injure Kelly. The trial court explained that it was Myers’ intent to put his hands on Kelly, despite Kelly’s telling him not to, that put Myers’ actions “out of the realm of any type of negligence.” With regard to course and scope, the trial court concluded that there was no question but that the incident occurred in the workplace, during working hours, and that the precipitating event that caused the incident, i.e., Myers’ attempt to get help with completing the cut sheet, was clearly employment rooted.

When Myers approached him in the shipping office, Kelly was reclining in a rolling chair with his feet elevated. It was common knowledge in the shipping department that Kelly suffered from back problems. Thus, as explained by the trial court, it is irrelevant whether Myers touched Kelly softly or roughly, because the evidence overwhelming indicated that Myers touched Kelly in an offensive or harmful manner after being told not to, and, that as a result of that unauthorized touching, Kelly fell over in the chair rein-juring his back. Myers consciously desired to place his hands on Kelly against his will when he came at Kelly despite his protestation that he not be touched. The fact that Myers may not have intended to injure Kelly is of no moment in light of the fact that he intended to inflict a battery, however slight, upon Kelly, whom he knew had back problems and under 112circumstances that made it likely that Kelly could fall and be injured. Myers’ actions against Kelly are no less of an intentional tort simply because the two men were co-workers. We conclude that no reasonable trier of fact could decide that Myers did not commit an intentional tort against Kelly.

The evidence also overwhelmingly indicates that the incident arose as a result of Myers’ attempt to get the cut sheet completed and that the incident was “reasonably incidental to the performance of [Myers’] duties.” Baumeister, 678 So.2d at 1000. On the other hand, absolutely no evidence was offered that points to the conclusion that Myers’ actions were motivated by any “purely personal considerations entirely extraneous to [Boise’s] interest.” Id. at 997. By all accounts, before this incident occurred Myers and Kelly considered each other a friend, and there was not a hint of animosity between the two of them.

The defendants contend that they should not be liable to Kelly in tort because the battery did not benefit Boise’s business and because Myers’ actions violated Boise’s policy against unauthorized or offensive touching. We disagree. In Benoit v. Capitol Manufacturing Co., 617 So.2d 477 (La.1993), an employee of the defendant was injured when he got into a fight with a co-employee at work over whether the rear door to their work area should be opened or closed. In finding the employer liable to the injured employee for the battery to the plaintiff by his fellow employee, the supreme court noted that while the battery upon plaintiff did not benefit the defendant employer, neither did the supervisor’s knifing of the fired employee in LeBrane, 292 So.2d 216, benefit the employer in that case. Nonetheless, the employer in Benoit was held to have respon-deat superior liability for the tortious acts of its employee because the employee’s actions were “clearly ‘employment-rooted.’ ” Benoit, 617 So.2d at 479.

In addition, this court recently noted that:

| ^“Because the policy manual warns against acts of violence and harassment in the workplace, under the reasoning in Brumfield [v. Coastal Cargo Co., Inc., 99-2756 (La.App. 4 Cir. 6/28/00), 768 So.2d 634, writ denied, 00-2293 (La.10/27/00), 772 So.2d 658], the possibility of violence and harassment at work is a risk of harm fairly attributable to [the employer’s] business.”

Edmond v. Pathfinder Energy Servs., Inc., 11-151, pp. 9-10 (La.App. 3 Cir. 9/21/11), 73 So.3d 424, 429-30, writ denied, 11-2234 (La.12/16/11), 76 So.3d 1204. Here too, the fact that Boise corporate policy prohibited harassment and other unauthorized touching leads us to the inference that the possibility that its employees will engage in on-the-job horseplay “is a risk of harm fairly attributable to [Boise’s] business.” Id. We conclude that no reasonable trier of fact could find that Myers’ actions did not occur in the course and scope of his employment with Boise.

We further conclude that the trial court properly applied the LeBrane test in determining whether Boise should be held liable for Myers’ tortious actions. See LeBrane v. Lewis, 292 So.2d 216 (La.1974). Moreover, we find that the trial court did not apply undue weight to the first LeBrane factor because here, all of the Le-Brane factors pointed in favor of holding Boise vicariously liable for Myers’ actions against Kelly because the battery was “primarily employment-rooted” and “reasonably incidental to the performance of [Myers’] duties,” and because the battery “occurred on the employment premises and during the hours of employment.” Id. at 218.

After considering the testimony and evidence in light of the substantive law applicable to this matter, we are convinced that no reasonable trier of fact could arrive at a verdict other than one finding that Myers committed an intentional act upon Kelly within the course and scope of their employment with Boise. Thus, the trial court did not err in directing a verdict in favor of plaintiffs. Conversely, the |Htrial court did not err in failing to direct a verdict in Boise’s favor as the evidence simply did not support Boise’s claims that Myers did not act intentionally or that it should not be held vicariously liable for his actions. For the foregoing reasons, defendants’ first five assignments of error lack merit. Offset

The defendants contend that the trial court erred in failing to grant them an offset against the tort award for any future workers’ compensation payments that it will pay to Kelly, thus guaranteeing that he will receive a double recovery. They claim that their position is mandated by the binding Louisiana Supreme Court authority espoused in Gagnard v. Baldridge, 612 So.2d 732 (La.1993).

Plaintiffs point out that they have only filed suit against the defendants for tort damages. They have not sued Boise for workers’ compensation benefits and no judgment has been entered ordering Boise to pay future disability benefits or medical expenses. As a result, plaintiffs contend that there is no workers’ compensation judgment which can be offset or credited against the tort award made in this case. Finally, plaintiffs submit that “this court has already considered and rejected an argument similar to that” which Boise raises here in Reeves, 716 So.2d 58, 62 where we stated:

[T]he situation in Gagnard is different from that presented here. In Gagnard, the court was faced with the possibility of double recovery because the employer was also a tortfeasor and its general liability insurer failed to appeal. Struggling with this special circumstance and desiring not to afford the claimant double recovery, the supreme court granted the employer a credit for future compensation benefits against satisfaction of the liability judgment. Here, however, La. R.S. 23:1103 prevents double recovery against an employer whose obligation to pay the claimant is mandated solely by workers’ compensation law, as opposed to an obligation to pay that is grounded additionally in general tort law. La.R.S. 23:1103 allows the compensation carrier a credit for future compensation computed at 6% per annum, up to the 11samount of the tort judgment; and, it is not liable for payment until that judgment is used up. Therefore, since the employer is entitled to a credit for future payments by operation of law, no judgment providing so is necessary.

Here, in rejecting the defendants’ claim that they were due an offset, the trial court observed, “[y]ou can’t satisfy a fixed obligation, or a liquidated amount, with a promise of an expectation of a performance in the future, that’s not how a set-off works.” In so finding, the trial court noted that to allow the defendants to satisfy the tort judgment “over the next 20 years” when plaintiffs were awarded a money judgment that was immediately due and payable would “totally negate! ] the time value money aspect” of that judgment. The trial court also anticipated that problems could occur if defendants were awarded an offset and Kelly were to die before receiving the full value of the tort judgment awarded by the jury in this case.

Based on our prior holding in Reeves, 716 So.2d 58, we are of the opinion that the trial court did not err in refusing to grant the defendants an offset against the tort award for any future workers’ compensation payments that it will pay to Kelly in the future. As noted by the trial court, the defendants can institute a proceeding in the workers’ compensation arena to prevent plaintiffs from receiving any double recovery. The defendants’ sixth assignment of error lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in its entirety. Costs of this appeal are assessed to the defendants.

AFFIRMED.

      . The suit included a claim by Kelly’s wife, Jackie, for loss of consortium.

      . Old Republic Insurance Company (Old Republic), Boise’s liability insurer, was named as an additional defendant by way of a supplementing and amending petition. Therefore, when we refer to Boise in this opinion, we are sometimes referring to Old Republic as well.

      .The judgment contained a notation explaining that, pursuant to La.Civ.Code art. 2315(C), Kelly’s award of damages was not reduced by the percentage of fault assessed to him by the jury. An amended judgment was signed on March 9, 2011, to correct the statutory reference to that of La.Civ.Code art. 2323(C).

      . Although Myers appealed and filed an appellate brief separately from Boise and Old Republic, his assignments of error mirrored theirs.

      . See LeBrane v. Lewis, 292 So.2d 216 (La.1974) (employer of supervisor, who fired employee, followed him outside, and knifed him during a fight, held liable in tort to discharged employee).

      . According to Myers’ testimony, a "cut sheet” was a list of how much and what size(s) of wood were needed in the different areas of the plant.

      . As previously mentioned, Reeves was reversed on grounds unrelated to the issues presented in the instant case.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Robert Wayne LEGER.
    No. 11-1127.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      John Foster DeRosier, District Attorney, Fourteenth Judicial District Court, Karen C. McLellan, Carla Sigler, Assistant District Attorneys, Lake Charles, LA, for State-Appellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant-Appellant, Robert Wayne Leger.
    Robert Wayne Leger, Cottonport, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

| ¡FACTS

The following facts were set forth by the state at the guilty plea proceeding:

Your Honor, between January 1st of 2006 and May 11th of 2007, this defendant touched a juvenile, who’s [sic] initials are T.J., his date of birth is August 11th, 1991. At the time he would have been 15 years of age. Touched him on more than one occasion in his genital area. When the defendant was questioned, he revealed that during wrestling with the victim, he did touch him in his genital area, and that he would later masturbate after having touched the victim. And this did occur in Calcasieu Parish.

The defendant, Robert W. Leger, was charged by bill of indictment with three counts of sexual battery, violations of La. R.S. 14:43.1 under district court docket number 07-14444. On May 14, 2008, the defendant entered a guilty plea to one count of sexual battery. In exchange, the state dismissed the other two counts. The defendant and the state had a joint recommendation of twenty-five years at hard labor. The trial court imposed the twenty-five year hard labor sentence without benefit of probation, parole, or suspension of sentence.

Two years later, the defendant filed a motion seeking to correct an illegal sentence. A hearing was held on June 18, 2010. The trial court corrected the illegal sentence to ten years at hard labor without benefit of probation, parole, or suspension of sentence.

On September 21, 2010, the state filed a habitual offender bill under district court docket number 10-29804 charging the defendant as a second offender. On November 10, 2010, a hearing was held at which the trial court adjudicated the defendant a second offender. The trial court sentenced him to twenty years.

On December 6, 2010, the defendant filed a Motion for Reconsideration of Sentence alleging his sentence was vindictive and excessive, the state breached the plea agreement, and he was not afforded a Pre-sentence Investigation Report (PSI). |aThe trial court denied the motion as untimely. The defendant sought review by this court, and this court held in pertinent part:

WRIT NOT CONSIDERED, IN PART; WRIT GRANTED AND MADE PEREMPTORY, IN PART: Relator seeks relief from a ruling in the trial court denying his motion to reconsider sentence. In his pleadings filed in the trial court, he did not present or argue that he was entitled to a reconsideration of sentence. The issues he presents to this court cannot be raised in a motion to reconsider sentence and are appropriately raised in an appeal. Accordingly, Relator’s request for relief for reconsideration of sentence is not considered.
In the pleading filed in the trial court, Relator did give notice of appeal and request action by the court, including the granting of an appeal. The trial court failed to address the issues raised in the pleading titled “Notice of Appeal.” Accordingly, Relator’s writ application is granted, in part, and this matter is remanded for consideration of all issues raised therein.

State v. Leger, an unpublished writ bearing docket number 11-173 (La.App. 3 Cir. 5/25/11).

The defendant filed a motion seeking appeals under both district court docket numbers, 07-14444 and 10-29804, which are pending before the court. This appeal will address the issues under district court docket number 10-29804, the habitual offender proceeding.

ASSIGNMENT OF ERROR

The defendant asserts the following pro se assignment of error:

Did the District Court error [sic] in allowing the State to file a multiple bill over two years after Petitioner’s plea and then only after he exercised his right to legal redress on a motion to correct an illegal sentence which was granted by the Court.

The defendant, through his attorney, sets forth the following assignments of error:

1. The twenty (20) year sentence imposed in this case should be vacated and this case remanded for re-sentencing.
A. The trial court erred in denying Mr. Leger’s Pro Se Motion for Reconsideration of Sentence as untimely.
|oB. The trial court failed to comply with Louisiana Code of Criminal Procedure Article 894.1.
C. The trial court failed to vacate the ten-year sentence imposed for one count of sexual battery prior to imposing the enhanced sentence of twenty years as a second-felony offender pursuant to the Habitual Offender Law.
2. The trial court failed to properly advise Robert Leger of the time limitation for filing an application for post-conviction relief.

ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, all appeals are reviewed this court for errors patent on the face of the record. After reviewing the record, we find a procedural issue worth noting.

The defendant entered a guilty plea under district court docket number 07-14444. The state filed a habitual offender bill charging the defendant as a second offender under district court docket number 10-29804. A hearing was held on November 10, 2010. The transcript of the hearing indicates it was held under district court docket number 10-29804. At the conclusion of the hearing, the trial court imposed the habitual offender sentence. The minute entry of the November 10, 2010 proceeding does not include the sentence imposed. Therefore, we order the minute entry of the November 10, 2010 proceeding be amended to include the entire proceeding held that day as reflected by the November 10, 2010 transcript.

PRO SE ASSIGNMENT OF ERROR

The defendant contends that the trial court erred in allowing the state to file a multiple offender bill over two years after his plea and after he exercised his right to “legal redress” on a motion to correct an illegal sentence which was granted by the trial court. The defendant explains that the state filed the multiple offender bill two years after he entered a guilty plea, and the state did it to punish him for 14seeking correction of the illegal sentence. The transcript of the guilty plea proceeding indicates the state advised that it would dismiss two counts of sexual battery and recommend a sentence of twenty-five years in exchange for the defendant entering a guilty plea to one count of sexual battery. The trial court advised the defendant the penalty for the offense was twenty-five years to life. Additionally, the trial court informed the defendant in pertinent part: “I understand that a conviction or multiple convictions in this case may become [sic] the basis for the enhancement of the penalty I may be subject to in the event of another conviction, or convictions, under the current habitual offender jurisprudence.”

The state pointed out that the defendant was currently on parole in Texas for the crime of murder. The trial court imposed the recommended sentence of twenty-five years at hard labor. There was no mention that the state was filing a habitual offender bill to enhance the sexual battery sentence or planned to do so.

At the hearing on motion to correct illegal sentence held in June 2010, the parties acknowledged the defendant had been sentenced under the incorrect provision of La.R.S. 14:43.1; the proper sentence was zero to ten years. The following pertinent exchange occurred between the parties:

MR. DEPUY:
Your Honor can correct the sentence, but at the same time, the State would like to explore and look into whether we have grounds to file a habitual offender, and request Your Honor to sentence him as a habitual offender, because he has a prior conviction for murder—
THE COURT:
Well,—
MR. DEPUY:
—out of Texas.
1 ¿THE COURT:
—that would be reopening — that would be reopening the case, after he’s — what did he plead guilty to?
MR. LEGER:
For one count, Your Honor.
MR. DEPUY:
He pled guilty to one count of sexual battery, Your Honor.
THE COURT:
Well, how can we — how can we go back after sentencing and do the habitual offender aspect of it? I’m just — well, here’s — we do have the court records. Because he requested the minutes. Let me look at it.
MR. DEPUY:
Your Honor, the State has not been prejudiced with having the opportunity to file a habitual offender. Your know, if I do not — if I have waived that for some reason, then I’d like to be able to explore that before — nothing in my file indicates that the State agreed not to file a habitual offender.
THE COURT:
This was a — this is a joint recommendation as to the sentence?
MR. DEPUY:
By Mr. Wilson and by the Public Defenders’ Office.
THE COURT:
The events occurred January 1, 2006, and May 11, 2007.
MR. DEPUY:
Correct, Your Honor.
THE COURT:
Does that put him under the old law, or the new law, and is that an issue?
MR. DEPUY:
Well, the issue would be — it would not be an issue, because either way, the victim would not have been under 13 at the time; the lfivictim would have been under 15 at the time. Which, under the statute, obviously, he would have violated, and been guilty of sexual battery.
And the State’s concern that I would like to address to the Court is: if Your Honor were to impose a sentence under the range of zero to 10, the State would like to look into at least having whether I can explore filing a habitual offender, given there was a recommendation that was not proper. And I think Mr. Williams did represent Mr. Leger at the time.
THE COURT:
So you’re saying if I would correct the sentence to less than 10?
MR. DEPUY:
Your Honor would have the sentencing range of zero to 10.
THE COURT:
You’re agreeing to that?
MR. DEPUY:
No, I’m not agreeing to anything, Your Honor. But Your Honor would have to — would have to correct the sentence that was imposed.
MR. WILLIAMS:
Your Honor, I’ve just asked Mr. Leger who represented him when Ms. Wilson was prosecuting this. He indicated that I did. If this — and based on the statements made to you, in fact, that this is an illegal sentence, then the Court goes back and sentences him under the conviction that was put in place at the time, merely changing the range. Now, if we’re going to — if the D.A. wants to go back and consider whether they can habitualize him, then we just throw everything out and start from scratch. Your job with regards to the illegal sentence is to merely—
THE COURT:
What do you mean—
MR. WILLIAMS:
Now, if the D.A. wants to go back and consider habitualizing him, then that’s— that’s not proper at all.
17THE COURT:
Then the sentence is gone, the guilty plea is withdrawn; is that what you’re saying?
MR. WILLIAMS:
That’s what would have to happen. Your job, as correcting the illegal sentence, is to look to see — it should not have been 25, it should have been zero to 10, and to go back and correct it under that basis. Now, if the D.A. wants to consider habitualizing, then we have to go back from scratch, because in any sentence that any defense attorney would put forth in agreement would be to agree not to habitualize, okay. So, if they want to change the rules of the game, after both the prosecutor and the defense attorney did not catch this — if they want to change the rules of the game, then that starts the game all over.
THE COURT:
I tend to agree, but I want to give the State time to — there’s two issues: one, do they even disagree that the maximum sentence was 10 years. You have to— you have to take a position on that. And if you’re going to argue that the range was as much as 25, we need to know what the basis is. Okay?
MR. DEPUY:
Okay, Your Honor.
THE COURT:
I mean, to me, I’ve heard nothing to indicate anything other than we made a mistake as to the range of sentencing.
Then the second issue is, if you want to bring in a habitual offender, how do you do that? Do you start all over, or is there a process for the Court to allow that process to take place now, and to consider adding time to an otherwise illegal sentence?
MR. DEPUY:
Yes, Your Honor. And I’m not trying to be disingenuous with the Court. I don’t know that I have the ability to file a habitual offender. I’m just saying to the Court, you know, before Your Honor would — would decide to impose a sentence, I want to be able to look at the transcript, you know, and get that together.
THE COURT:
That’s why I’m giving you that opportunity,—
IrMR. DEPUY:
Okay.
THE COURT:
—and I’m telling you what the issues are, so that you can come back next month when I’m back on the Crim II bench in a couple of weeks—
MR. DEPUY:
Okay.
THE COURT:
—and let’s deal with this.
MR. DEPUY:
Okay, Your Honor.
THE COURT:
But those are the issues. One, I need — I need you to take a position on was this sentence legal, or illegal. And if it was legal, you need to tell me why.
MR. DEPUY:
Okay, Your Honor.
THE COURT:
Because, you know, I got the feeling it was probably illegal to sentence him to 25 years if the statute only had a maximum of 10.
MR. DEPUY:
Yes, Your Honor. And, again, I don’t know what the basis was for that 25 year—
THE COURT:
It’s in here. Here’s the record.
MR. DEPUY:
—so ...
|9THE COURT:
And if you want to—
MR. DEPUY:
I would like, just for the record, to request, officially, the transcript from that day for the sentencing—
THE COURT:
He’s already done that. It’s in the record.
MR. DEPUY:
The full transcript from the court reporter?
THE COURT:
Yes.
MR. DEPUY:
Oh, okay.
THE COURT:
So, let the record reflect I am providing you the record.
MR. DEPUY:
Yeah, I might be able to resolve it today, if I can look at it, Your Honor.
THE COURT:
I’m giving you the confidential record here in Open Court, so you can review it right now.
[Recess]
I ,nMR. DEPUY:
Your Honor, if I may call back up, for the record, Robert Leger, under Docket No 14444-07.
THE COURT:
All right.
MR. DEPUY:
He had filed a motion to correct an illegal sentence.
As we discussed before, Your Honor, the State’s conceding that the imposition of the sentence under that range was illegal, was incorrect.
THE COURT:
All right. So I’m going to correct that sentence, and it’s now a 10-year sentence, correct?
MR. DEPUY:
It’d be zero to 10 would be the sentencing range, Your Honor.
THE COURT:
I would impose a 10-year sentence then as the new corrected sentence, as the maximum; especially since the defendant had agreed to 25 years. So, the new sentence is 10 years.
And now the issue is whether or not the State can proceed with the habitual offender, either with that new sentence, or they want to pursue it whether we then vacate the old sentence and let him start over.
MR. WILLIAMS:
On the 10 years, Your Honor, would you add to the record that there would be credit for time served.
J^THE COURT:
Credit for time served. Now, the Prosecutor did show me the statutes that indicated they can do it even after a conviction. Did you show that to Mr. Williams?
MR. DEPUY:
Under 15:429.1, Subsection D. And just to clarify, I guess, for the record, Your Honor, this is — you’re imposing a sentence of 10 years without benefit, or just 10 years Department of Corrections?
MR. REGGIE:
What’s the charge?
MR. DEPUY:
Sexual battery. 14:43.1, for sexual battery. The habitual offender’s under 15:429.
MR. REGGIE:
It’s gotta be with or without hard labor, and it’s without benefits.
MR. WILLIAMS:
Your Honor, under the 43.1, shall be punished by imprisonment with or without hard labor, without benefit of parole, probation, or suspension of sentence for not more than 10 years. And I want to look — look at any other part of the statute that may address—
THE COURT:
So it’s without benefit.
MR. WILLIAMS:
That is correct, Your Honor, yes, sir. THE COURT:
All right.
| ii>MR. REGGIE:
Ralph, we’re going to take care of all that. I should have told you that. We need to finish this because we’ve got to get a — we’ve got to get a correct sentence imposed first, and then we’ll take care of that, all right. Thanks. I understand, and I need to make sure the Judge specifically says without those benefits, each of those three words, so the Third Circuit doesn’t send it back.
MR. WILLIAMS:
And it’s with or without hard labor. THE COURT:
With or without hard labor, and without benefit of probation, parole, or suspension of sentence.
MR. REGGIE:
Thank you, Judge.
THE COURT:
And 10 years.
MR. WILLIAMS:
Okay. Now — and—
THE COURT:
That’s the new sentence.
MR. WILLIAMS:
—and it would — you would have to make a distinction as to whether it is with or without; and, of course, my request is going to be without hard labor.
THE COURT:
I have to — I have to declare whether it’s with or without hard labor?
JjjMR. REGGIE:
Yes, sir.
MR. WILLIAMS:
Yes, sir.
THE COURT:
What’s the — what’s the argument on that? I understand your argument, he’s in a wheelchair.
MR. WILLIAMS:
Yes, sir.
THE COURT:
I don’t mean to take words out of your mouth, but it’s obvious.
MR. WILLIAMS:
Exactly, Judge.
THE COURT:
So, how does the State feel about that? I don’t know if he can do hard labor in a wheelchair. If you can—
MR. REGGIE:
Sure you can, Judge, we do it all the time. We did one in Judge Canaday’s courtroom, they just sentenced a guy to 10 years.
THE COURT:
I’ll order it with hard labor, to the extent that it can be done in a wheelchair.
MR. DEPUY:
And as indicated before, the State will look into whether it intends to file a habitual offender, Your Honor — a bill of information for a habitual offender.
THE COURT:
I don’t think you have to make that decision today. Based on what I read, you can do it at any time, and then I’ll— if the State objects — I mean, if the Defense objects to the State taking that action, then you can prepare whatever opposition, including the argument that |Hwe have to start over. You were sort of making that argument on the fly, but I—
MR. WILLIAMS:
Your Honor, I think the intent of the — of coming back with an illegal sentence is to address the illegal sentence, not give the State a second chance at the bite of the apple.
THE COURT:
No, sir. We’ve done that, Ralph.
MR. WILLIAMS:
Then I think that’s — I think that’s as far as the Court can go.
THE COURT:
We’re done as far as today, but the State believes — and I saw the language in the statute that indicates at any time, even after sentencing, the State can come back with a habitual offense motion.
MR. WILLIAMS:
That’s when it’s done, Judge. Generally, it’s done once the person is convicted, of course.
THE COURT:
Well, I mean, I thought it was as a part of the sentencing.
MR. WILLIAMS:
Yes.
THE COURT:
Okay. The statute says even after sentencing. That’s what he just showed me.
MR. WILLIAMS:
So the State gets a second bite at the apple with the—
THE COURT:
I’m just telling you what the law says. MR. WILLIAMS:
—with the sentence as illegal?
|1BTHE COURT:
We’re past the illegality issue; we’ve cured that.
MR. WILLIAMS:
Right.
THE COURT:
We now have a legal sentence in place.
MR. WILLIAMS:
Right.
THE COURT:
The State wants to then come back on a habitual offender motion. Then I think — based on what he just showed me, I think they can, but we’re not going to deal with that right now. If they want to file it, they can file it, we’re going to deal with it then. Okay.
MR. WILLIAMS:
Very well. I’ll reserve all rights on behalf of Mr. Leger.
THE COURT:
You have all rights; you’ve got them.

In September 2010, the state filed the habitual offender bill, a hearing was held, the trial court found the defendant to be a second offender, and he was sentenced to twenty years. The defendant filed a Motion to Reconsider Sentence arguing his sentence was vindictive and excessive and the state breached the plea agreement. As noted above, after the trial court denied it as untimely, the defendant sought a writ of review with this court. This court held the issues presented in the motion to reconsider sentence should be raised on appeal.

In order to properly preserve the issue of prosecutorial vindictiveness, the defendant should have filed a motion to quash the habitual offender bill or objected on that basis at the habitual offender proceeding.

11fiHowever, the defendant attempted to preserve it by filing the motion after the habitual offender sentence was imposed, and we will review the issue. See State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, writ denied, 02-481 (La.3/14/03), 839 So.2d 26, where the court, in dicta, may have been suggesting this issue may be raised in a motion to reconsider sentence.

In State v. Lewis, 461 So.2d 1250 (La.App. 1 Cir.1984), the court explained, in pertinent part:

The leading case on prosecutorial vindictiveness is Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Blackledge, the defendant was convicted of a misdemeanor by a North Carolina State court. After the defendant claimed his right to a trial de novo in a higher court, the prosecutor obtained a superseding indictment charging the defendant with a felony rather than a misdemeanor. Both the original misdemeanor (assault with a deadly weapon) and the subsequent felony (assault with a deadly weapon with intent to kill) charges were based on the same set of facts.

In Blackledge, 94 S.Ct. at 2102-3, the Court stated:

A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration, [citation omitted]
Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.
In applying Blackledge, the 5th Circuit Court of Appeals in Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978), noted that there is a broad ambit to prosecutorial discretion, most of which is not subject to judicial control. However, the court went on to state that a prosecutor’s discretion to reindict a defendant is constrained by the due process clause. Thus, once a prosecutor exercises his discretion to bring certain charges against a defendant neither he nor his successor may, without explanation, increase the number or severity of those charges in circumstances which suggest that the increase is in | ^retaliation for defendant’s assertion of statutory or constitutional rights.
The court in Hardwick stated that a prosecutor could negate allegations of vindictiveness by proof of mistake or oversight in his initial action, a different approach to prosecutorial duty by a successor prosecutor, or public demand for prosecution on additional crimes allegedly committed, a list the court noted was illustrative rather than exhaustive.
The most recent statement of the law on prosecutorial vindictiveness by the 5th Circuit Court of Appeals appears in U.S. v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir.1983) cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984). In that case, at 718 F.2d at 1365, the court stated:
If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor’s actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created. In trying the issue of vindictiveness, the prosecutor may offer proof of the sort suggested in Hardwick that as a matter of fact his actions were not vindictive. The burden of proof (by a preponderance of the evidence) remains on the defendant who raised the affirmative defense. If, on the other hand, the course of events provides no objective indication that would allay a reasonable apprehension by the defendant that the more serious charge was vindictive, i.e., inspired by a determination to “punish a pesky defendant for exercising his legal rights,” a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of the evidence that events occurring since the time of the original charge decision altered that initial exercise of the prosecutor’s discretion.
The procedural history in the instant case is rather straight forward. Defendant was initially indicted by a grand jury for manslaughter. More than a year later he pled guilty to manslaughter and was then sentenced to twenty-one years at hard labor. Defendant then sought to withdraw his guilty plea. Ultimately, he appealed to the Louisiana Supreme Court, and his case was remanded to the trial court where he was allowed to withdraw his guilty plea. A second 11Rindictment was then brought against defendant charging him with second degree murder.
The sequence of events as outlined above provides no “objective indication” as to the reason for the increase in the severity of the charges. Therefore, a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of evidence that events occurring since the time of the original charge decision altered the initial exercise of the prosecutor’s discretion. U.S. v. Krezdorn, 718 F.2d at 1365.
We remand this case to the trial court for a hearing to allow the district attorney an opportunity to rebut the presumption of vindictiveness.

Id. at 1252-53.

In United States v. Walker, 514 F.Supp. 294 (E.D.La.1981), the court held as follows:

In a series of cases following [North Carolina v.] Pearce[, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1979) ] and Blackledge[ v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) ], the Fifth Circuit has adopted a procedure for reviewing the government’s exercise of its charging discretion to determine whether the government has legitimately exercised its authority in a constitutionally forbidden manner. Because this test was designed to cover the multitude of situations of which Pearce and Black-ledge were only two particular instances, it is necessary to examine this rule.
2. The Fifth Circuit Rule
The rule in this circuit to assess the validity of the government’s exercise of its charging authority has developed over a series of cases attempting to accommodate the state’s constitutionally protected authority to prosecute Defendants for crime and the Defendant’s constitutional right as set forth in the Blackledge case. See Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.), on petition for rehearing and rehearing en banc, 561 F.2d 630 (1977) (per curiam), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); Jackson v. Walker, 585 F.2d 139 (5th Cir.1978); Miracle v. Estelle, 592 F.2d 1269 (5th Cir.1979); United States v. Thomas, 593 F.2d 615 (5th Cir.), modified on rehearing, 604 F.2d 450 (1979) (per curiam), appeal after remand, 617 F.2d 436 (1980); United States v. Shaw, 615 F.2d 251 (5th Cir. 1980) (per curiam). This test sets forth both the elements of proof of and defense to a claim of prosecutorial vindictiveness as well as the allocation of burdens and order of proof on this claim.
The Defendant bears the burden of establishing a prima facie case of prose-cutorial vindictiveness.... The defendant’s | ^establishment of a prima facie case of vindictiveness, in effect, creates a presumption that the government did act vindictively in bringing the second prosecution. The nature of this presumption varies according to the balance struck between the government’s interests in enforcing the law and allocating wide discretion to individual prosecutor’s to make charging decisions, and the Defendant’s interests in being free from both actual vindictiveness and the apprehension of vindictiveness as the consequence of challenging his original conviction. Where the Defendant’s interests outweigh the government’s interests, the presumption created by the Defendant’s establishment of a prima facie case is irrebuttable, and the Defendant is entitled to prevail based entirely upon his initial showing. This occurs where the government baldly escalates the original charge as in Blackledge. But where the balance weighs in favor of the government, as occurs where the escalation of the second charge was possible only because of events occurring between the first and second prosecutions or where the second charge accuses the Defendant of “different and distinct” offenses from the first charge, even despite a common origin in the same “spree of activity,” the government is entitled to rebut the presumption of vindictiveness by going forward to demonstrate legitimate, nonvindictive reasons for the second charge. In these situations, if the government fails to come forward with any such reasons or fails adequately to rebut the presumption of vindictiveness, the Defendant is entitled to a judgment in his favor based upon the presumption created by his establishment of a prima facie case. But if the government successfully carries its burden of rebutting the presumption, the Defendant must then demonstrate actual vindictive motivation by the government to prevail on his claim. Alternatively, where the government institutes a second prosecution against a Defendant who has had his first conviction set aside but who cannot establish a prima facie case because the second charge carries a less severe penalty than the first, the Defendant may still challenge the second prosecution as vindictive but must demonstrate actual vindictive motivation by the government.

Id. at 313-15 (footnotes omitted).

In State v. Tassin, 08-752 (La.App. 3 Cir. 11/5/08), 998 So.2d 278, writ denied, 08-2909 (La.9/18/09), 17 So.3d 385, the defendant challenged his habitual offender enhancement on the basis of prosecutorial vindictiveness, and it held, in pertinent part:

The defendant bears the burden of proving prosecutorial vindictiveness. State v. Darensbourg, 06-572 (La.App. 5 Cir. 12/27/06), 948 So.2d 1128. In determining whether there has been prosecutorial vindictiveness, the court examines the state’s actions in the context of the entire proceeding. Id. If, to a Unreasonable mind, the filing of the habitual offender bill can only be explained by a desire to deter or punish the defendant’s exercise of legal rights, the events in the case will create a presumption of vindictiveness. Id.
The district attorney has the discretionary power to charge a defendant under the habitual offender law just as he has the initial unlimited power to prosecute “whom, when, and how” he chooses. State v. Dorthey, 623 So.2d 1276, 1279 (La.1993); LSA-C.Cr.P. art. 61. The district attorney’s use of the habitual offender laws “provides an ancillary sentencing factor designed to serve important and legitimate societal purposes.” State v. Orange [State ex rel. State v. Orange ], 02-711 (La.App. 1 Cir. 4/11/03), 845 So.2d 570, 578, writs denied, 03-1352 (La.5/21/04), 874 So.2d 161, and 03-2195 (La.7/2/04), 877 So.2d 137. The use of the habitual offender law alone does not create a presumption of prosecutorial vindictiveness. Id.
State v. Dauzart, 07-15, p. 6 (La.App. 5 Cir. 5/15/07), 960 So.2d 1079, 1084-85.
The Defendant argues that in either case, the choice to seek enhancement against him when it has not been done to other habitual offenders leads to arbitrary results based upon the decision of a sole prosecutor.
The trial court did not rule on this claim at the habitual offender hearing or at the time of sentencing. However, the Defendant produced no evidence at the hearing or in brief to this court to suggest that the State filed the habitual offender bill of information for the purpose of deterring or punishing the exercise of his legal rights. Therefore, he failed to prove the State’s pursuit of the habitual offender bill against him was vindictive. Accordingly, this assignment of error lacks merit.

Id. at 293.

In State v. Wilson, 44,586 (La.App. 2 Cir. 10/28/09), 26 So.3d 210, writ denied, 09-2655 (La.1/28/11), 56 So.3d 973, the court found no vindictiveness, and it held in pertinent part:

A presumption of vindictive prosecution arises if the habitual offender bill can be explained only by a desire to punish or deter the exercise of legal rights. See State v. Tassin, 2008-752 (La.App. 3d Cir. 11/5/08), 998 So.2d 278, writ denied, 2008-2909 (La.9/18/09), 17 So.3d 385. The use of the habitual offender law alone does not create a presumption of prosecutorial vindictiveness.
If the prosecutor’s conduct is equally attributable to legitimate reasons, the defendant must prove actual vindictiveness. A mere opportunity for vindictiveness does not suffice. State v. Heard, 36,191 (La.App.2d Cir.7/17/02), 823 So.2d 454. A defendant has the burden of proving, by a preponderance of the evidence, the affirmative defense of prosecutorial vindictiveness. In that regard, the court will examine the state’s actions in the context of the entire proceedings.
Discussion
The defendant argues that the state’s choice to charge him as a habitual offender amounted to improper prosecuto-rial vindictiveness. He claims the habitual offender bill of information was filed solely due to the state’s suspicions that the defendant was involved in another unprosecuted crime many years before this present offense. The defendant argues that the trial court erred in denying his motion to compel answers to a bill of particulars regarding the motives for the filing of the habitual offender bill of information and in failing to grant his motion to quash the habitual offender bill of information due to prosecutorial vindictiveness. The defendant has failed to carry his burden of proof on this issue.
There is no showing of a presumption of vindictiveness because the decision in this case to file a habitual offender bill of information was not explained only by a desire to punish or deter the exercise of legal rights. Further, the record shows that the choice to charge the defendant as a habitual offender was based upon legitimate reasons. The defendant had prior convictions for attempted distribution of cocaine, attempted simple burglary, simple burglary, unauthorized entry of a place of business, and possession of stolen things. The Habitual Offender Law only provides for four prior felonies. Therefore, the defendant was adjudicated a fourth felony offender.
In addition, the defendant had an extensive criminal record containing many more arrests and convictions not used in adjudicating him a fourth felony offender. The record shows that the defendant was not only a proven habitual felony offender, but had a criminal history spanning 30 years. Due to the defendant’s proven record of recidivism, the state had legitimate reasons to file the habitual offender bill of information in this case.
The defendant has also failed to show actual vindictiveness. He makes the bare allegation that the habitual offender bill of information was filed solely due to his suspected involvement in a prior offense for which he had not been prosecuted. The defendant offered no evidence to prove this allegation. He made the bare allegation that he has been treated differently from similarly situated defendants, but has goffered no proof of this claim. Examining the state’s actions in the context of the entire proceedings, particularly in light of the fact that the defendant has a significant history of prior felonies, there is no showing of actual prosecutorial vindictiveness in this case. The trial court did not err in denying the motion to quash the bill of information or in failing to compel answers to the bill of particulars in this matter.

Id. at 220-21 (citations omitted).

Although not directly on point because it pertains to whether or not the trial court increased the defendant’s sentence due to vindictiveness, State v. Merrell, 511 So.2d 1234 (La.App. 2 Cir.1987), lends guidance on this issue. In Merrell, the court held, in pertinent part:

We conclude the trial judge erred in increasing defendant’s original sentence by ordering it to be served consecutive to any other sentence because the trial judge failed to articulate, for the record, any conduct on the part of defendant occurring subsequent to the original sentencing proceeding which would justify increasing the original sentence. There can be no doubt that the trial judge increased defendant’s original (legal) sentence which should have been twelve years upon resentencing, although he agreed defendant’s original sentence had been improperly enhanced by six years. Defendant’s original eighteen year sentence was ordered to run concurrently with his prior six year sentence and the twelve year sentence imposed upon re-sentencing, was ordered to run consecutive to any prior sentence. The trial judge, therefore, in resentencing defendant to serve a twelve year hard labor sentence to be served consecutive to his prior six year sentence, has reimposed, for all practical purposes, a prison term equal in length to the original eighteen year illegal sentence.
The trial judge, in resentencing defendant, relied upon the same factual information considered by the trial judge who imposed the original illegal sentence. Increasing defendant’s original sentence, without new and additional justification, therefore, violated defendant’s due process rights because it creates the appearance of vindictiveness against defendant for successfully attacking his sentencing. The sentence must be vacated and the case remanded for resentencing.

Id. at 1236-37 (citations omitted).

The present case is distinguishable from Tassin and Wilson and more in line with Lewis and Merrell. The record before this court indicates that over two years had elapsed between the time the defendant entered a guilty plea and was | ¡^sentenced to twenty-five years and the time the state filed the habitual offender bill. Although at the guilty plea hearing, the state informed the trial court that the defendant had been convicted of murder in Texas and was on parole, the state did not seek to enhance the defendant’s sentence under the habitual offender statutes at the guilty plea proceeding. In fact, the state, along with the defendant, recommended the defendant be sentenced to twenty-five years. The first mention of a habitual offender bill being filed was at the motion to correct illegal sentence. The record does not reflect an “objective indication” as to the reason for seeking enhancement of the sentence. Therefore, a presumption of vindictiveness applies which cannot be overcome unless the state proves by a preponderance of evidence that events occurring since the time of the original decision altered the initial exercise of the state’s discretion. Accordingly, this court is remanding this case to the trial court for a hearing to allow the state an opportunity to rebut the presumption of vindictiveness.

The trial court is instructed to (1) conduct an evidentiary hearing within thirty days and (2) lodge an appellate record, containing the transcript of the hearing, within fifteen days of the hearing. See State v. Clark, 97-1064 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, writ granted and case remanded in light of supplemental filing, 98-1180 (La.9/25/98), 726 So.2d 2, and State v. Fuslier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866. The remaining issues are pretermitted pending the evi-dentiary hearing and lodging of the new record in this court.

CONCLUSION

The matter is hereby remanded to the trial court for an evidentiary hearing on the issue of prosecutorial vindictiveness in accordance with the opinion. The eviden-tiary hearing is to be held within thirty days of issuance of this opinion.

_|^Following the Rearing, the trial court shall lodge an appellate record containing the transcript of the hearing, within fifteen days of the hearing.

The remaining issues are pretermitted.

REMANDED WITH INSTRUCTIONS.

      . The minute entry reflecting the November 10, 2010 sentencing was included in the record in 11-1126 and the minute clerk mistakenly captioned the proceeding under the incorrect docket number.

      . This was the incorrect penalty; the correct was zero to ten years. La.R.S. 14:43.1.