text:
    Katherine Trahan ASHWORTH v. Larry Leroy ASHWORTH.
    No. 10-215.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.
    Burleigh G. Doga, Attorney at Law, Crowley, LA, for Plaintiff/Appellee, Katherine Trahan Ashworth.
    Larry T. Richard, Attorney at Law, Rayne, LA, for Defendant/Appellant, Larry Leroy Ashworth.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   PAINTER, Judge.

h Larry Leroy Ashworth appeals the trial court’s finding that his ex-wife, Katherine Trahan Ashworth, was free from fault in the break up of their marriage. The trial court ruled that the remaining issue of whether Katherine was otherwise entitled to final spousal support was referred to an intake conference. We find that the judgment at issue is not a final appealable judgment and dismiss the appeal and remand the matter to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Katherine Trahan Ashworth and Larry Leroy Ashworth were married on August 29, 2000. No children were born of the marriage. The parties separated on or about October 31, 2007. Katherine filed a petition for divorce and partition of community property on September 30, 2008. On February 9, 2009, the parties entered into a joint stipulation whereby Larry agreed to pay Katherine $750.00 per month in interim spousal support and gave her exclusive use of the former matrimonial domicile until a partition of community property was made. The joint stipulation also found that Larry was in arrears in the total amount of $3,000.00, ordered Larry to continue paying the community expenses and liabilities that he had been paying prior to the intake conference, and gave Katherine the use of the 1986 Lincoln Town Car and Larry the use of the 2007 Ford Expedition. A judgment effecting the terms of the joint stipulation was signed on February 17, 2009.

Katherine filed a rule for divorce and to establish final spousal support on July 15, 2009. A judgment of divorce was signed August 19, 2009. Trial on the issue of final spousal support was held on September 14, 2009. The trial court found that Katherine was free from legal fault in the break up of the marriage, and the issue of entitlement to final spousal support was referred to an intake conference. A judgment to that effect was signed September 30, 2009. Larry now appeals that judgment, alleging two assignments of error: (1) the trial court erred in allowing Katherine to use hearsay testimony that her brother and her niece told her that Larry had been going to the house of someone named Erin and receiving sex for money; and (2) the Ltrial court erred in finding that Larry’s failure to ask Katherine to return to the matrimonial domicile was a basis for concluding that Katherine was not guilty of abandonment.

For the following reasons, we find that this appeal is premature as the judgment appealed is not a final judgment. Accordingly, we dismiss this appeal and remand the matter to the trial court for further proceedings.

DISCUSSION

In Charles v. Charles, 06-1142, pp. 1-3 (La.App. 3 Cir. 12/20/06), 945 So.2d 934, 935, this court stated:

The issue presented in the case sub judice was presented to the fifth circuit in Evans v. Evans, 02-691 (La.App. 5 Cir. 11/19/02), 833 So.2d 427. The court stated:
This Court has been presented with the same procedural problem in two prior cases, Brehm v. Brehm, 96-159 (La.App. 5th Cir.9/18/96), 686 So.2d 881 and Plauche v. Plauche, 95-979 (La.App. 5th Cir.3/13/96), 673 So.2d 1053. In both cases this Court held that an appeal of a ruling which determined fault but not an award of support or a final determination that support was not due was improper because such a ruling was a partial final judgment that was not appealable. La. C.C.P. art. 1915. We find those cases on point and dispositive of the instant case.
Plaintiff argues that this case is distinguishable because La. C.C. arts. Ill and 112 on periodic support have been amended subsequent to the rendition of the Brehm and Planche cases. While we recognize that the articles have been amended, we do not find that the amendment changes the legal principles applicable to the issue herein.
The relief sought by the Defendant is a monetary award of periodic support. While the ruling on fault touches on one issue in the support dispute, it is not a final appealable judgment because it does not grant a party all or part of the relief for which it prayed. The trial court must still make determinations regarding Defendant’s need and Plaintiffs ability to pay, as well as several other factors, including the ultimate monetary award. As pointed out in Planche, to hold otherwise would mean we could look forward to a second appeal on need, and third appeal on ability to pay and then a forth appeal on quantum. Judicial economy and the avoidance of piecemeal appeals remain guiding appellate principles. Plaintiff or Defendant will, of course, be entitled to full consideration of all issues involved in their litigation in an appeal of a final judgment Ron periodic support. Accordingly, this appeal is dismissed as premature and the case is remanded to the trial court for further proceedings.

Id. at 428.

We agree with the fifth circuit’s reasoning in Evans. As in Evans, the plaintiff in the instant case prays for an award of final periodic support, not for a declaration that she is free from fault in the dissolution of the marriage. While this issue is a necessary premise on which to base an award of final support, the ruling does not grant the plaintiff any relief requested in the petition. Since the ruling does decide an issue in the litigation, the judgment falls within the purview of La.Code Civ.P. art. 1915(B), which statute requires a designation of appealability before an appeal can be taken from the ruling.

For the reasons given in Evans, we find that a designation of this judgment as immediately appealable would not be appropriate in this instance, as this result would not be in the interest of judicial economy and would result in piecemeal appeals. Therefore, we hereby dismiss this appeal at defendant’s cost and remand this case to the trial court for further proceedings.

We find the reasoning in both Evans and Charles to be sound and applicable to this case. The trial court’s ruling which only finds Katherine to be free from fault is not a final appealable ruling. To render an opinion as to that ruling would not be in the interest of judicial economy as another appeal is sure to follow. This appeal is hereby dismissed, and the matter is remanded to the trial court.

DECREE

For the reasons given in Evans and Charles, we dismiss this appeal, with costs to be shared equally by the parties, and remand this case to the trial court for further proceedings.

APPEAL DISMISSED. CASE REMANDED.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. J.V.F.
    Nos. 10-151, 10-152.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, Louisiana, for Defendant/Appellant, J.V.F.

      Charles A. Riddle, III, District Attorney — Twelfth Judicial District, Miché Moreau, Assistant District Attorney, Marksville, Louisiana, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|!Defendant, J.V.F., appeals his convictions and sentences on two counts of aggravated rape and one count of attempted aggravated rape, alleging insufficiency of the evidence and excessive sentence. For the following reasons, we affirm Defendant’s convictions and sentences on the two counts of aggravated rape and vacate his conviction and sentence on the one count of attempted aggravated rape.

PROCEDURAL HISTORY

After a jury trial, Defendant was convicted of two counts of aggravated rape, in violation of La.R.S. 14:42, and one count of attempted aggravated rape, in violation of La.R.S. 14:42 and 14:27. The trial court ordered Defendant to serve life imprisonment for each count of aggravated rape and fifty years at hard labor for the attempt. The trial court designated that all three penalties run concurrently with each other and be served without benefit of parole, probation, or suspension of sentence. Defendant appeals.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

ASSIGNMENTS OF ERROR

In his appeal, Defendant assigns two errors: (1) insufficiency of the evidence; and, (2) excessiveness of the sentences.

FACTS AND DISCUSSION OF THE RECORD

Detective Earnest Desselle, with the Avoyelles Parish Sheriffs Office, was the first witness to testify at trial. Detective Desselle was assigned to Defendant’s case [¡.when R.C. and T.C. filed a complaint that their daughters, J.C., eight years of age, and O.C., six years of age, had possibly been molested. On the date the offenses were reported, another officer, Captain Brandon Horton, responded to an attempted suicide at Defendant’s residence in Avo-yelles Parish. Detective Desselle also went to Defendant’s residence, and medical attention was given to Defendant. Deputy Brent Reason also arrived at Defendant’s residence and retrieved Defendant’s suicide note as evidence, which read:

I won’t be bothering anyone any longer. I only loved too much. [R.F.] I love you and I don’t want to see you hurt anymore. Tell my church I’ll miss them[;] it is my fault to love anyone I know. If you really know me and you know I’m only full of love, not hurt [sic] I wouldn’t hurt anyone. I love you [R.F.]

After visiting the hospital to request an interview with Defendant, Defendant’s stepdaughter, C.J., contacted Detective Desselle and told him that Defendant had also molested her children, K.J., five years of age, and D.J., four years of age. C.J. and her family lived next door to Defendant; T.C. and O.C. had been staying with C.J. and her husband, D.J., Sr., for approximately four months leading up to the complaint.

Detective Desselle stated that, in accordance with procedure, he did not interview the children; instead, he referred them to the Rapides Children’s Advocacy Center. Although Detective Desselle was not present in the room, he and the victim coordinator for the Avoyelles Parish District Attorney’s Office observed and recorded the interviews from a separate room. The next step in the investigation involved medical examinations of the victims by the Avoyelles Parish Coroner’s Office.

Detective Desselle said that he watched all four of the children’s interviews at the advocacy center. The oldest child, J;C., reported that her “Paw Paw,” Defendant, had repeatedly offered her treats to suck his penis, but that she had always refused. Is O.C. stated that her Paw Paw, Defendant, would give her treats after putting his “pecker” in her mouth, in her “butt,” and in her “pie” (vaginal area). Defendant instructed O.C. not to tell her parents and told her that the “man juice” from his penis would make her run faster. K.J. denied that anything had happened to him, but D.J. reported that “PawPaw,” Defendant, had put his “pecker” into his “butt,” and it hurt.

Detective Desselle stated that all of the children were examined by Dr. Mayeaux the day following the interviews. Dr. Mayeaux found evidence of sexual abuse on O.C. and D.J. J.C. and O.C. first reported this activity to their aunt, S.R., in Lafayette, but D.J. did not report the offense until the interview at the advocacy center. From the interviews, it appeared that the abuse occurred either in Defendant’s house or in his backyard workshop. At the time of trial, Defendant was forty-seven years of age.

On cross-examination, Detective Des-selle related that he had first spoken to Defendant’s wife, R.F., while Defendant was in the hospital. Detective Desselle asked to speak to Defendant when he was released. During their discussion, R.F. indicated that she was upset about a physical altercation that occurred between Defendant and R.C. early that morning when R.C. and T.C. initially confronted Defendant with the allegations.

Detective Desselle stated that he needed to speak to R.F. again, after the advocacy center interviews, because one of the children reported that R.F. had walked in on one of the sexual encounters between Defendant and D.J. R.F. denied witnessing any such thing.

Six-year-old O.C. was the next witness to testify for the prosecution. O.C. stated that her parents were R.C. and T.C. and that she was staying with her aunt. [ 4 O.C. said she had a younger brother and an older sister, eight-year-old J.C. O.C. indicated that Defendant had touched her on her bottom and her private part while they were at his house. O.C. said that Defendant had used his hand and his “pecker” to touch her. Defendant asked her to touch his private part with her bottom and her private part. O.C. explained that Defendant’s private part went both inside and along the outside of her private part and mouth, and it felt “gooie.” Yellow stuff came out of his private part and went into her private part, her mouth, and her bottom. O.C. said that Defendant told her that the yellow stuff would make her stronger and run faster. O.C. added that when she did “everything,” Defendant would give her treats such as chips and ice cream. O.C. did not like Defendant.

Eight-year-old J.C. testified as the State’s third witness. J.C. is O.C.’s older sister, R.C. and T.C. are her parents, and J.C. has a younger brother. J.C. stated that Defendant had asked to touch her on her “thingy” and her “butt” while she was at his house. J.C. told him, “No,” but she never told anyone about this. Defendant also asked J.C. to touch his “thingy” with her mouth, and she gave him the same response.

Dr. L.J. Mayeaux, the coroner for Avo-yelles Parish, was the fourth witness for the prosecution. The trial court accepted Dr. Mayeaux as an expert in forensic medicine and family practice. Dr. Mayeaux examined the victims of all instances of sexual abuse in Avoyelles Parish. Dr. Mayeaux testified that the children were all related because T.C. was D.J., Sr.’s sister. Defendant was C.J.’s stepfather.

Dr. Mayeaux stated that he examined D.J. first. D.J. told Dr. Mayeaux that Defendant made him suck Defendant’s “pecker,” that Defendant also sucked D.J.’s “pecker,” and that Defendant had put his “pecker” in D.J.’s “butt” many times, which hurt. D.J. mentioned telling his grandmother that his “butt” hurt. D.J. stated that he |,^stayed with Defendant just about every day because R.F. worked five days a week. Medical examination showed that D.J. had hidden rectal tears and scars at the six o’clock and four o’clock areas. Based on the statements and physical examination, Dr. Mayeaux determined that D.J. had been sexually abused.

Dr. Mayeax also examined K.J. K.J. consistently denied that anything happened to him at Defendant’s house, although he stated that he saw Defendant kiss D.J. C.J. reported that KJ.’s behavior had worsened over the two years prior to the examination. Dr. Mayeaux recommended that K.J. be kept from Defendant’s household until this case was resolved.

Dr. Mayeaux reported his findings from O.C.’s examination. O.C. told him that Defendant made her suck his “pecker” every time she went to visit and that the grandmother was never there. Defendant would give her candy afterward. Defendant touched her private parts. He would put lotion on them or spit on them before putting his “pecker” in her private parts. O.C. saw the “man juice.” It would go into her mouth, and she would swallow it. Defendant also put his “pecker” inside her “butthole,” which hurt. T.C. told him that O.C.’s behavior and the quality of her school work had changed drastically. Dr. Mayeaux’s physical examination revealed that the hymen had been violated and that there was an old vaginal scar at the six o’clock area. O.C.’s rectum was “somewhat dilated,” but there were no tears or lacerations in those areas.

Dr. Mayeaux explained that, as part of his practice, he would assess the credibility of the person making the statements. Dr. Mayeaux stated that the boys were both non-perverse and non-programed. O.C. was a little chatterbox and answered his questions truthfully, giving vivid and correct information. Dr. Mayeaux | (¡reported that the vaginal dilation would have been caused by “local penetration over some time” and that the scar would have been caused by trauma. Dr. Mayeaux opined that the tears for both O.C. and D.J. were caused by the force of penetration. O.C.’s vaginal scar and rectal dilation would have both been caused by penetration. Based on his examination of and conversation with O.C., Dr. Mayeaux determined that O.C. had been sexually abused by oral, vaginal, and anal intercourse.

Dr. Mayeaux next discussed his examination of J.C. J.C. reported that Defendant had tried to make her suck his “cock.” Although he tried, she stated that Defendant did not make it into her crotch. J.C. further stated that Defendant never touched her, and he never put his “pecker” in her. Defendant would deny her candy when she would not comply, but the boys would share their candy with her. Dr. Mayeaux’s report shows that J.C. stated that Defendant “tried to make her suck his cock. He never made it into her mouth, but he did try.” J.C. stated that Defendant “was always” taking O.C. and D.J. into the house with him. Dr. Mayeaux’s physical examination of J.C. revealed no signs of vaginal or rectal trauma. Dr. Mayeaux found J.C. to be sincere. Overall, Dr. Mayeaux recommended that Defendant be arrested and charges filed against him.

After Dr. Mayeaux, S.R. was called to testify for the State. S.R. was a nurse (LPN), and, before that, she worked as a medical assistant for a pediatric clinic for indigents. S.R. is R.C.’s aunt. R.C. and his family moved in with her while R.C. looked for work. The children had always been close to S.R., so she visited with them while R.C. and T.C. unpacked and settled in. During the course of their conversation, O.C. told her aunt that boys did not have “wieners” because wieners were something that were put on a hotdog; instead, boys had “peckers.” When S.R. 17told O.C. that “pecker” was too strong a word for such a little girl to be using and suggested that O.C. refer to it as a wiener, O.C. replied that Defendant had told her it was a “pecker” and that she used to have to suck on one of them all the time. O.C. further stated that she was glad she went to live with S.R. because she would not have to do that any more.

S.R. testified that, after clarifying who Defendant was, she asked J.C. if she knew anything about what O.C. had said. J.C. did not say much, but O.C. repeated her statement and added that Defendant gave her candy as a reward for the activity. O.C. then asked her aunt not to say anything because she was not supposed to have told anyone and that she would get into trouble. O.C. stated that J.C. never had to do it because she refused when Defendant asked her, “Please.” O.C. related that J.C. said she would not do that for all of the candy in the world, so O.C. shared her candy with J.C. O.C. also told S.R. that Defendant had “man juice” and that she would be able to run faster if she drank it.

S.R. said she assured O.C. that she would not get in trouble for telling her. She asked O.C. if it was okay if they went and told R.C. about what had happened, because he needed to know. O.C. became “very scared” and asked if Defendant would know where they were living and if he could find them. After telling O.C. that Defendant would not be able to find her, S.R. had R.C. and the girls sit together and instructed the girls to tell R.C. everything they had told her. After R.C. discussed the matter with the girls and reassured them that they were not in trouble, R.C. asked J.C. why she had not reported what had been happening to her little sister. J.C. said she was scared.

S.R. stated that she did not know Defendant and that she had never met him. 18 At first, she did not know about whom the girls were talking. C.J. and D.J., Sr. are not related to S.R. S.R. related that, when R.C. first heard the news, he was shocked, very upset, and cried.

On cross-examination, S.R. stated that J.C. told her at a later date that O.C. did what Defendant asked all the time and that she thought the boys also did it because they had candy, too. They all shared their candy with J.C. because she would never participate. On redirect examination, S.R. stated that she could guarantee that the girls had not been coached.

Four-year-old D.J. testified that Defendant touched his “pecker” and his “butt.” D.J. stated that Defendant touched his “butt” with his private part and that Defendant touched his private part with his “butt.” D.J. also stated that Defendant’s private part went inside his “butt” and that Defendant would give him candy.

Ms. Shauntell Cooper, the director of the Rapides Children’s Advocacy Center, testified that she had interviewed D.J., O.C., J.C., and K.J. More information about Defendant’s interaction with D.J. was contained in the transcript of the interview at the Rapides Children’s Advocacy Center wherein D.J. stated that he liked Defendant because he gave him anything he wanted. He further stated that Defendant touched him on his “butt,” his head, his leg, and his “pecker.” D.J. said that he had his pants on when Defendant touched his “butt” and his “pecker,” that Defendant sucked on his “pecker” and touched the inside of his “butt” with a marker, and that it hurt. D.J. mentioned that, when this happened, “pooh pooh” got on Defendant’s hand and that this activity occurred “lots of times.”

Reverend Bobby Cazalot testified as the defense’s first witness. Defendant was a member of Reverend Cazalot’s church for five years. Defendant was active as a | nSunday school teacher for adults. Reverend Cazalot spent time with Defendant and observed his relationship with K.J. Reverend Cazalot noted that D.J. spent less time at Defendant’s residence than K.J. Reverend Cazalot was less familiar with O.C. and J.C., who attended church with Defendant approximately three times. Reverend Cazalot stated that Defendant was well-liked within the church, but that Defendant had some problems in the community outside of the church due to alcoholism. Defendant had been jailed after consuming alcohol and medication together. Reverend Cazalot stated that he had never seen anything improper between Defendant and the children other than a normal relationship.

Defendant’s wife, R.F., testified as the second witness for the defense. R.F. stated that her relationship with R.C. and T.C. was occasionally contentious and that she would “fuss” at T.C. because of their behavior toward the children relative to “fussing,” “cussing,” and hitting. R.F. said that R.C. and T.C. locked the children out of their home. When this would happen, D.J. and K.J. would go to R.F.’s house. R.F. testified that she had never seen Defendant behave inappropriately toward the children and that Defendant loved them.

R.F. explained that, the day she learned of the accusations, C.J. called her at work and informed her that R.C. and T.C. had beaten up Defendant. R.F. called Reverend Cazalot, and he took her home. Defendant was sitting down with blood all over his face when they arrived at R.F.’s home. R.F. called in a complaint to the police department, but the police never responded. Defendant went to the hospital for his injuries. R.F. stated that she spoke with Detective Desselle at the hospital, and she told him that R.C. and T.C. had beaten up Defendant. On a later date, R.F. spoke with Detective Desselle again. On that occasion, when he asked her if she had ever [ 1tiwalked in on Defendant being inappropriate with the children, she replied that she had not.

R.F. denied that Defendant tried to commit suicide. She stated that he took a couple of pills because he was in pain, but he was responsive when the ambulance arrived. R.F. acknowledged that Defendant had left a note, but she denied that it contained anything stating that he intended to kill himself.

Defendant was the final witness to testify at trial. Defendant acknowledged that he had been arrested twice for impersonating a police officer by using his firefighter accouterments, i.e., a dashboard light and his badge. Defendant stated that he has taken care of fourteen or fifteen children and that he was still in contact with them. Defendant met R.C. and T.C. through C.J. and D.J., Sr. Defendant claimed that he had seen C.J. beat the children and call them names. Defendant stated that he loved his grandchildren, that he took care of them, and that he felt as though his grandchildren loved him. Defendant also felt that he had a good relationship with C.J. and that she relied on him for advice and car repair.

Defendant asserted that T.C. had been in and out of rehabilitation for drug addiction and that she frequently stopped by his house and asked him to buy her some painkillers. Defendant said that he did not know that he was being accused of rape until he had gotten out of the hospital, when everyone thought he had tried to commit suicide. Defendant then stated that R.C. and T.C. had accused him of rape when they appeared on his doorstep early that morning, that they attacked him, that R.C. hit him, and that T.C. kicked him.

Defendant explained that, hours later, he was still shocked and hurt about the allegations. He wrote his wife a letter of apology and went to bed. Defendant Indaimed that he would give his life before ever hurting a child and that he only wanted good things for J.C., O.C., K.J., and D.J. Defendant stated that O.C.’s injuries could have come from riding the gate like it was a pony. Defendant theorized that the complaints against him were motivated by revenge because his wife had finally “put her foot down” about T.C. being high, locking the children out of the house, and not taking care of them. R.F. called her ex-husband, from whom C.J. had been renting the property next door, and reported T.C.’s behavior. As a result thereby, R.F.’s ex-husband told T.C. that she could not stay there anymore. Defendant also alleged that C.J. was angry at him because R.F. had arranged for Defendant to inherit her house.

Defendant testified that J.C. had received as many treats as the rest of the children. Defendant described J.C. as being quiet with sudden explosions of ill temper.

On cross-examination, Defendant said that J.C. had a bad attitude, but that O.C. had a good attitude. Defendant did not have any theory as to how D.J. sustained his injuries, but he maintained that O.C. had probably gotten hers from playing on the fence.

Defendant admitted that, in Evergreen, he had activated the red light in his car with the intention of stopping a vehicle and that he pled guilty to impersonating a police officer charge.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that “[t]he evidence presented at trial was insufficient to convict [him] of aggravated rape or attempted rape.” Defendant complains that there was no DNA evidence introduced at trial and that the victim testimony and physical evidence was insufficient to support his convictions. Defendant contends that his 112status as a Sunday school teacher made him more credible than the State’s witnesses. Defendant asserts that he adequately proved that the allegations against him were motivated by revenge because his relationship with the victims’ parents was antagonistic.

The Louisiana Supreme Court has set forth the standard of review for sufficiency of the evidence claims and has determined that the appellate court’s function does not include reevaluation of witness credibility:

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (citations omitted).

Therefore, even though Defendant contends that his status as a Sunday school teacher made him a more credible witness than the children, the factfinder in this case, i.e., the jury, determined otherwise; and, the evidence in the record supports the factfinder’s determination. The children’s reports of the activities occurring at Defendant’s home were consistent with each other and their prior reports. Additionally, each of the three children testifying at trial supported the accounts of the others. Likewise, Dr. Mayeaux, the medical examiner who examined the victims and dealt frequently with this type of case, testified that the children all appeared to be giving truthful reports. Ms. Cooper, the interviewer from the Rapides Children’s | ^Advocacy Center, who also had experience in this type of situation, similarly vouched for the children’s credibility. Additionally, S.R., the great-aunt of O.C. and J.C., testified that the children first reported the matter to her, that she witnessed the reactions of R.C. and T.C. when they heard about the incidents in question, and that R.C. and T.C. had been upset, shocked, and tearful. Finally, the jury was allowed an opportunity to make personal observations regarding the credibility of the children and Defendant. The jury verdict is amply supported by the evidence in the record.

Aggravated Rape:

The record, when viewed in the light most favorable to the prosecution, shows that Defendant engaged in both anal and oral sex with both O.C. and D.J. Additionally, Defendant engaged in vaginal intercourse with O.C. At the time of trial, Defendant was in his late forties, O.C. was six years old, and D.J. was four years old. The medical examinations of both children yielded data consistent with their accounts of the sexual abuse.

Aggravated rape occurs when “anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed ... [wjhen the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.” La.R.S. 14:42(A)(4).

This court has held that, in sex offense cases, the testimony of the minor victim is sufficient to support the conviction:

Absent internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony is sufficient to support a defendant’s conviction of a sex offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. Additionally, this court has affirmed | ^convictions, where the defendant was convicted of a sex offense, based solely on minor victims’ testimonies.

State v. Darbonne, 01-39, pp. 3-4 (La.App. 3 Cir. 6/6/01), 787 So.2d 576, 579, writ denied, 02-533 (La.1/31/03), 836 So.2d 64 (footnotes omitted). In Darbonne, this court found sufficient evidence to support Darbonne’s aggravated rape conviction based on the ten-year-old victim’s statement that the defendant, “play[ed] with him and st[u]ck his penis in his butt.” Id. at 582.

In State v. Viree, 95-176 (La.App. 3 Cir. 3/6/96), 670 So.2d 733, writ denied, 96-885 (La.9/20/96), 679 So.2d 431, the defendant’s ten and eleven-year-old daughters reported that he had sexual intercourse with them both during a weekend visitation. A medical examination supported their allegations. At trial, both girls testified about their individual ordeals and confirmed that they had each witnessed their father’s acts toward her sister. The defendant denied the allegations. This court found sufficient evidence to support the aggravated rape conviction.

In State v. Henry, 439 So.2d 1242, 1247 (La.App. 5 Cir.1983), aff'd, 449 So.2d 486 (La.1984), the court held that a juvenile victim’s testimony, when supported by a medical exam, is sufficient to support a defendant’s conviction for aggravated rape:

The testimony of the young victim, though phrased in childish terminology, was quite explicit on this point, and constitutes direct evidence. That, coupled with the doctor’s testimony regarding his findings of a tear in the child’s hymen and redness and swelling in the vaginal area, were sufficient for a rational jury to find appellant guilty beyond a reasonable doubt....

Therefore, we find, when the evidence is viewed in the light most favorable to the prosecution, a reasonable finder of fact could have found that the evidence introduced at trial established beyond a reasonable doubt that Defendant raped both | isO.C. and D.J., who were both under thirteen years of age at the time of the offense. Accordingly, there was sufficient evidence to support both of Defendant’s aggravated rape convictions.

Attempted Aggravated Rape:

The record indicates that Defendant tried to have J.C., aged eight at the time of trial, perform oral sex on him. Defendant asked J.C. to put her mouth on his penis and requested her permission to touch her private part and her buttocks. According to J.C., Defendant begged her to do this. He even asked, “Please.” Because of her refusal to comply with his request for sex, Defendant denied J.C. the treats (candy) that he gave to the other children. Other than Defendant’s verbal attempts at sexual involvement with J.C., the record is noticeably vague and void of any specific details in that regard.

Attempt requires a specific intent to commit a particular crime plus an act toward accomplishing that offense; however, acting and preparing are not the same thing:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

La.R.S. 14:27.

Unequivocally, Defendant’s propositioning of J.C. clearly indicated his intent to have sex with her if she was compliant. This determination is supported by his Inactions toward O.C. and D.J. Additionally, there is no doubt that this activity occurred while J.C. was under the age of thirteen because she was eight at the time of trial. Thus, the remaining issue is whether Defendant actually committed an act in furtherance of having sex with J.C. Specifically, the crucial issue is whether propositioning J.C. was sufficient to qualify as an attempt to have sex with her.

The second circuit has explained the difference between acting and preparing:

Attempt requires both the specific intent to commit a crime and an act for the purpose of, or an “overt act,” tending directly toward accomplishment of that crime. Specific intent to commit a. crime is an element of an attempted offense. The state has the burden of proving defendant’s specific intent to commit the charged crime. Conviction of an attempted offense must rest upon sufficient proof that the offender actively desired to cause the proscribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the purpose and tending directly toward the accomplishing of his object.
The delineation between mere preparation and an overt act has not been precisely defined. The state supreme court has explained that a defendant’s actions which are “mere preparation” and those which may be identified as acts “for the purpose of and tending directly toward” commission of a crime may be understood as existing on a continuum. The distinction between which of a defendant’s actions constitute an attempt, and which are mere preparation, is fact specific to each case; the trier of fact must determine where a defendant’s actions fall on the continuum.
An act need not be directly proximate to commission of a crime in order to be properly classified as an overt act. Further, an overt act need not be such that it will result in commission of the crime unless frustrated by extraneous circumstances.
Louisiana’s attempt statute rejects factual impossibility as a defense, stating “it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.” La. R.S. 14:27.

State v. Prine, 44,229, pp. 10-11 (La.App. 2 Cir. 5/20/09), 13 So.3d 758, 764, writ denied, 09-1361 (La.2/5/10), 27 So.3d 298 (citations omitted).

The two key elements of an attempt are (1) specific intent to commit the 117offense, and (2) an act toward accomplishing that offense. La.R.S. 14:27. Even when viewing the evidence in the record in a light most favorable to the prosecution as to the charge of attempted rape, the second mandatory element is not proven. There was no evidence establishing an act by Defendant toward accomplishing the offense in question. Defendant asked, actually begged, J.C. to engage in illicit sexual activity. The record clearly indicates that Defendant took no further action toward accomplishing his quest for sexual activity with an eight-year-old child. However sickening Defendant’s actions were, mere propositioning, without anything further, does not constitute an act toward accomplishing that offense and, therefore, does not constitute an attempt. Though it may constitute another crime, it does not constitute attempted aggravated rape. The State failed to prove an essential element of an attempt, i.e., “an act [by Defendant] for the purpose of and tending directly toward the accomplishing of his object. ...” La.R.S. 14:27(A). “Mere preparation to commit a crime shall not be sufficient to constitute an attempt....” La.R.S. 14:27(B). Solicitation alone is insufficient. Consequently, Defendant’s conviction of attempted aggravated rape is vacated.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant asserts that “[t]he sentence imposed by the trial court was excessive under the circumstances.” Defendant contends that the two life sentences for the aggravated rape convictions and the fifty-year sentence for the attempted aggravated rape conviction, all ordered to run concurrently, are excessive because the penalties are the maximum allowable by law. Defendant points out that there were no allegations that he used force or violence and that the allegations of abuse spanned months rather than years. Moreover, Defendant was a Sunday school teacher and a | ^faithful member of his church. In his motion to reconsider sentence, Defendant suggested that ten-year sentences would have been more appropriate.

This court has previously discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted).

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight,' “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted). “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in [La.Code Crim.P.] art. 894.1[;] the record must reflect that he adequately considered these | iaguidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983) (citations omitted).

Aggravated Rape:

“Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” La.R.S. 14:42(D)(1). Thus, the two sentences imposed for Defendant’s aggravated rape convictions were mandatory penalties.

This court has previously determined that life imprisonment for the aggravated rape of a child under thirteen is not excessive. See State v. J.D., 09-995 (La.App. 3 Cir. 3/10/10), 32 So.3d 1072 (citing State v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338, writ denied, State ex rel. Lantz v. State, 09-606 (La.12/18/09), 23 So.3d 936).

Accordingly, Defendant’s life sentences are not constitutionally excessive.

Attempted Aggravated Rape:

Considering that this court vacated Defendant’s conviction on the charge of attempted aggravated rape, this court need not address the issue of the trial court’s fifty-year sentence on that conviction as it has been rendered moot.

DISPOSITION

Defendant’s convictions and sentences for aggravated rape are affirmed. Defendant’s conviction and sentence for attempted aggravated rape are vacated.

AFFIRMED IN PART; VACATED IN PART.

      . In accordance with La.R.S. 46:1844(W), initials are being used to protect the victims’ identities.

      . The trial court denied this motion without a hearing.


author: SAUNDERS, Judge.

text:
    Jonathon GUILLORY v. PROGRESSIVE SECURITY INS. CO., et al.
    Nos. CA 09-1056, CA 09-1508.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Joseph Richard Pousson Jr., Plauche’, Smith & Nieset, Charles, LA, for Defendant Appellee, Progressive Security Ins. Co.
    Kelly Elizabeth Heinen, Attorney at Law, Lafayette, LA, for Intervenor Appel-lee New Hampshire Ins. Co. Cox Communications, Lafayette.
    Matthew Charles Nodier, Walsh & Bailey, Baton Rouge, LA, for Defendant Appellant, American Home Assurance Co.
    Richard Elliott Wilson, Cox, Cox & Filo, Lake Charles, LA, for Plaintiff Appellee, Jonathon Guillory.
    Claude P. Devall, Newman, Hoffoss & Devall, Lake Charles, LA, for Plaintiff Ap-pellee, Jonathon Guillory.
    Brendan P. Doherty, Gieger, Laborde & Laperouse, New Orleans, LA, for Defendant Appellant, American Home Assurance Co.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

| herein, we address whether the trial court was correct in granting summary judgment in favor of the Appellee on the issue of whether uninsured motorist coverage was validly rejected by the insured. For the following reasons, we find that there exists a genuine issue of material fact and that the matter is not appropriate for summary judgment.

FACTS AND PROCEDURAL HISTORY:

This appeal arises out of a Motion for Summary Judgment granted by the 14th Judicial District Court in favor of the Ap-pellee, Jonathon Guillory, and against the Appellant, American Home Assurance Company (AHAC). The decision addressed whether the Appellee was owed uninsured motorist coverage through its employer, Cox Communications (Cox), and found that coverage was owed based on the invalidity of a UM rejection form.

The Appellee was seriously injured in an automobile accident in November of 2005, when he was rear ended by another vehicle driven by Yvette Clark. Clark’s underlying insurance limits are only $10,000.00-insufficient to cover the substantial medical bills associated with Appellee’s injuries. Thus, the question becomes whether the Appellee was entitled to UM coverage through Cox’s policy.

AHAC issued an automobile liability insurance policy to Cox with a term of January 1, 2005, to January 1, 2006. The accident occurred during the effective date of this policy. The original policy issued by AHAC to Cox was signed in December of 2002, and covered a term of January 1, 2003, through January 1, 2004. This policy was renewed in 2004 and 2005 with no changes made to the policy limits. UM rejection forms were signed by Cox for both the 2008 policy and the 2005 policy. No policy number was listed on the 2005 form.

| ¡¡The Appellant asserts that if UM coverage was not validly rejected by a Cox representative in January of 2005, the rejection form completed in December of 2002 serves as a valid rejection of UM coverage on the 2005 policy. Appellee argues that both forms are invalid.

Both Appellant and Appellee filed motions for summary judgment. The trial court granted the Appellee’s motion. The trial court found that the Appellant was unable to prove that a valid UM rejection form existed at the time of the signing of the form by the Appellee. The Appellant subsequently filed a motion for new trial so that the trial court could reconsider the Appellee’s motion for summary judgment. The trial court denied the motion for new trial and again entered a judgment in favor of the Appellee. The Appellant now appeals the summary judgment in favor of the Appellee and requests a summary judgment in its own favor.

APPELLANT’S ASSIGNMENT OF ERROR:

The trial court erred in granting summary judgment in favor of the Appellee in light of the fact that Cox knowingly, voluntarily, correctly, and completely rejected UM coverage, and summary judgment should be rendered in favor of the Appellant, dismissing Appellee’s claim with prejudice.

LAW AND DISCUSSION ON THE MERITS:

Standard of Review

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with | .^affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966.

Discussion

Appellant argues that Appellee validly rejected UM coverage for its 2005-2006 policy term. UM rejection forms were signed by Appellee for both the 2003-2004 and the 2005-2006 terms of the policy. The trial court found, and we agree, that the UM rejection form signed in 2005 was invalid in that it did not list a policy number. Both parties have centered their arguments on the validity of the form signed in December of 2002. This discussion will address the propriety of applying the 2003 rejection form to the 2005-2006 policy and whether the form was validly completed.

“Under Louisiana law, [UM] coverage is provided for by statute and embodies a strong public policy.” A.I.U. Ins. Co. v. Roberts, 404 So.2d 948, 949 (La.1981). “[T]he requirement of UM coverage is an implied amendment to any automobile liability policy ... as UM coverage will be read into the policy unless validly rejected.” Duncan v. U.S.A.A. Ins. Co., 06-363 p. 4 (La.11/29/06), 950 So.2d 544, 547. Louisiana Revised Statutes 22:1295(l)(a)(ii) sets out the requirements for effectuating a valid rejection of such coverage:

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 insured 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.

The Supreme Court of Louisiana in Duncan took the requirements a step further in stating that the insurance commissioner’s form requires six tasks, which are pertinent in rejecting UM coverage. Duncan, 950 So.2d 544.

Essentially, the prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

Id. at 551 (emphasis added).

In the current matter, there is little question that the insured, i.e. the Appellee, by way of its employer, intended to reject UM coverage. However, Louisiana law has been clear on the subject that the intent of the parties to reject UM coverage is secondary to a strict adherence to the regulations set out by the legislature and by the supreme court in Duncan. “The expression of a desire not to have UM coverage, however clear, does not necessarily constitute a valid rejection if the expression of rejection does not meet the formal requirements of law.” Cohn v. State Farm Mut. Auto. Ins. Co., 03-2820, p. 4 (La.App. 1 Cir. 02/11/05), 895 So.2d 600, 602, writ denied, 05-1000 (La.6/17/05), 904 So.2d 705.

| /With that in mind, we must look deeper and determine whether the 2003 rejection form is applicable to the current policy and whether it was in compliance with the formal requirements of law.

On the first issue, a simple reading of Rashall v. Pennington, 08-0001 (La.App 3 Cir. 4/30/08), 982 So.2d 301, writ denied, 08-1543 (La.10/10/08), 993 So.2d 1286, and La.R.S. 22:1295(l)(a)(ii) tells us that a validly completed UM rejection form remains effective for the life of the policy and that no new form need be completed unless a new policy is formed.

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.

Id.

The statute goes on to explain what constitutes a new policy such that a newly completed and signed UM rejection form would be necessary:

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.

Id.

In Rashall, an automobile accident occurred on January 28, 2005. The policy in effect on the date of the accident was a renewal policy covering the term of December 31, 2004, through December 31, 2005. When the policy had been renewed, a newly created UM rejection form was executed. However, the insured’s representative failed to date the form. The insured then attempted to make a claim on |fithe policy arguing that his invalid rejection of UM coverage on the renewal policy effectively revoked a prior valid rejection. This court rejected that argument and held that the prior effected valid rejection form continued rejection of UM coverage through the renewal policy absent an affirmative act by the insured to create a new policy or to select UM coverage on the form prescribed by the commissioner of insurance.

In the current matter, the parties and record are clear that no changes were made to limits of liability under the policy. Accordingly, no new policy was created between the Appellant and the Appellee between the signing of the 2003 form and the start of the 2005-2006 policy term. For that reason, this court finds that it is clear that the 2003 form, if validly completed and signed, would be applicable to the policy in place at the time of the accident at issue and would continue the waiver of UM coverage.

Our attention now turns to the validity of the 2003 UM rejection form. We note that in making its decision to grant summary judgment, the trial court addressed, in part, the fact that the 2003 form did not display the name of the insurer. On that point, the trial court relied on this court’s decision in the case of Gingles v. Dardenne, 08-448 (La.App. 3 Cir. 11/26/08), 998 So.2d 795, writ granted, judgment reversed by, 08-2995 (La.3/13/09), 4 So.3d 799. In Gingles, we found that a UM rejection form that did not contain the name of the insurer was an invalid waiver of UM coverage. That ruling was subsequently reversed by the supreme court. Gingles v. Dardenne, 08-2995 (La.3/13/09), 4 So.3d 799. Therefore, we will not address the absence of the insurer’s name on the form in this discussion.

As has been stated above, our legislature and our supreme court in Duncan 17have laid out the formal requirements which must be satisfied in order to validly reject or waive UM coverage. Among them is the requirement that the UM rejection form must display the insurance policy number.

It is the contention of the Appellee that the policy number was not present on the 2003 UM rejection form at the time that it was signed by the insured’s agent, Shelia Clinton, on December 31, 2002.

The Appellant denies that the policy number was not there. Furthermore, it asserts that even if the policy number was absent, it would only have been missing because the policy number wasn’t yet available. The supreme court, in Carter v. State Farm Mutual Automobile Insurance Co., 07-1294 (La.10/5/07), 964 So.2d 375, noted that the Commissioner of Insurance’s regulations allow for the omission of a policy number on a UM waiver form if that policy number does not exist at the time the form is completed. Linda Smith, an account executive for A.J. Gallagher (an insurance brokerage firm), who has handled the Cox account on behalf of the Appellant for the last fifteen years, stated in her deposition that the policy number for a UM rejection form signed on December 31 would have been available at the time of signing.

On this appeal from a grant of summary judgment, both parties are arguing, and the case turns upon, whether the policy number existed at the time the UM rejection form was signed by Shelia Clinton. As it stands, the record is devoid of information that would permit this court to make little more than an educated guess as to the policy number’s existence. For that reason, we find that there is clearly a genuine issue of material fact present in this matter.

At the time of the trial court’s ruling, summary judgment was a proper vehicle 18in that this court’s Gingles decision still stood. However, it seems that the change in the law has taken this case out of the realm of summary judgment. Accordingly, we reverse and remand the trial court’s ruling granting summary judgment in favor of the Appellee. Moreover, we reject the Appellant’s request that summary judgment be granted in its favor.

CONCLUSION:

For the foregoing reasons, we find that a genuine issue of material fact exists in the matter before us. Accordingly, we reverse and remand the trial court’s grant of summary judgment in favor of the Ap-pellee, and we reject the Appellant’s request for summary judgment in its favor. Costs of this appeal are assessed equally to the Appellant and Appellee.

REVERSED AND REMANDED.


author: AMY, Judge.

text:
    Scott Anthony PLAISANCE, et al. v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC., et al.
    No. 10-348.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Patrick M. Wartelle, Leake & Anders-son, L.L.P., Lafayette, LA, Counsel for Defendant/Respondent Our Lady of Lourdes Regional Medical Center, Inc.
    Ronald C. Richard, Richard Law Firm, L.L.C., Lake Charles, LA, Counsel for Plaintiffs/Applicants Scott Anthony Plai-sance, et al.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

hThe plaintiffs filed suit in district court against the defendant hospital, alleging it negligently credentialed and retained the surgeon who performed various medical procedures on one of the plaintiffs. The defendant hospital filed an exception of prematurity, asserting that the plaintiffs’ allegations were covered under the Louisiana Medical Malpractice Act, and thus, were required to first be reviewed by a medical review panel. The trial court sustained the defendant hospital’s exception. The plaintiffs appeal and file an application for supervisory writ. For the reasons that follow, we affirm.

Factual and Procedural Background

Scott Plaisance, his wife, Monique Plai-sance, individually and as legal representatives of their two minor children (collectively plaintiffs), filed suit in the Fifteenth Judicial District Court naming Our Lady of Lourdes Regional Medical Center (Lourdes), among others, as defendant, alleging Lourdes was responsible for the “[njegligent credentialing and/or retention” of surgeon Dr. Curtis L. Beauregard, who had performed three neurosurgical procedures on Scott Plaisance at Lourdes Hospital. The petition alleged, in part, that Lourdes was liable to the plaintiffs because “they were aware of Dr. Beauregard’s acts and behavior that occurred during the course of his treatment of Mr. Plaisance during April, May, and June of 2008 that should have prevented him from being allowed to retain privileges at Our Lady of Lourdes.” The petition further stated that the plaintiffs had also filed a “Petition for Medical Review Panel,” asserting a claim of medical malpractice in connection with Dr. Beauregard’s treatment.

In response to the plaintiffs’ suit, Lourdes filed an exception of prematurity asserting that the plaintiffs’ claim against it was covered under the definition of | ¡/‘malpractice” found in Louisiana’s Medical Malpractice Act (LMMA), and thus, the plaintiffs were required to submit their claims to a medical review panel before filing the instant suit in district court. La. R.S. 40:1299.41(A)(13); La.R.S. 40:1299.47. Following a hearing, the trial court sustained Lourdes’s exception of prematurity.

The plaintiffs appeal, asserting that the trial court erred in sustaining Lourdes’ exception in finding that “negligent ere-dentialing” constituted “malpractice” under the LMMA. La.R.S. 40:1299.41(A)(13).

Discussion

A medical malpractice claim against a private qualified health care provider is subject to dismissal in a district court on an exception of prematurity if that claim has not first been presented to a medical review panel. La.R.S. 40:1299.47(A); LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-08, 07-16 (La.9/5/07), 966 So.2d 519. The LMMA and its procedural requirements apply solely to malpractice claims as defined in La.R.S. 40:1299.41(A)(13), as follows:

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

| ¡¡The plaintiffs argue that the LMMA’s definition of malpractice does not contain the claim of “negligent credentialing” and thus, as the LMMA is to be strictly construed against coverage under the statute, their claim falls outside the limitations of the LMMA. See Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-451 (La.12/1/04), 888 So.2d 782 (wherein the supreme court explained coverage under the LMMA should be strictly construed because the limitations of the Medical Malpractice Act on the liability of qualified health care providers is special legislation in derogation of the rights of tort victims). Lourdes argues that the plaintiffs’ claims while styled as a “negligent credentialing” claim, is, in reality, a claim for negligent supervision which is specifically mentioned in the LMMA.

In determining whether the plaintiffs’ claims constitute malpractice under the LMMA, we must go further than a review of whether plaintiffs’ claims are titled “negligent credentialing” or “negligent supervision” and look instead to whether “the entirety of the conduct on which plaintiffs’] claim against Dr. [Beauregard] is based fits within the ambit of the statutory definition of ‘malpractice.’ ” Coleman v. Deno, 01-1517, 01-1519, 01-1521, p. 22 (La.1/25/02), 813 So.2d 308, 318. The Coleman court set forth six factors to assist in the determination of whether a claim constitutes malpractice under the LMMA:

[1] whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
[2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
[3] whether the pertinent act or omission involved assessment of the patient’s condition,
[4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
14[5] whether the injury would have occurred if the patient had not sought treatment, and
[6] whether the tort alleged was intentional.

Id. at 315-16.

Here, the exceptor, Lourdes, bears the burden of proving it is entitled to a medical review panel because the plaintiffs’ allegations fall under the LMMA. LaCoste, 966 So.2d 519. The record reveals that neither party presented evidence at the trial on the exception of prematurity. As such, this court “must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true.” Id. at 525; See also La.Code Civ.P. art. 930.

[1] Whether the particular wrong is “treatment related” or caused by a dereliction of professional skill

The plaintiffs assert, in brief, that the tortious act at issue is not “treatment related” because the decision by Lourdes to grant Dr. Beauregard credentials to operate in its hospital was made before the treatment of any patients. Lourdes, however, argues that the negligent credentialing claim, as stated in the plaintiffs’ petition, “focuses on what was done by the hospital after Dr. Beauregard received credentials.”

While the plaintiffs argue that the alleged misconduct occurred before the treatment of any patients, the petition’s allegations, which we must accept as true, allege Our Lady of Lourdes “were aware of Dr. Beauregard’s prior acts and behavior that should have prevented him from obtaining full privileges” in addition to misconduct directly related to Mr. Plai-sance’s treatment. The petition states that Lourdes is hable for the plaintiffs’ damages because “they were aware of Dr. Beauregard’s acts and behavior that occurred during the course of his treatment of |fiMr. Plaisance at Our Lady of Lourdes during April, May, and June of 2008 that should have prevented him from being allowed to retain privileges at Our Lady of Lourdes.” The plaintiffs’ “negligent credentialing” claim, as explained by them in the petition, encompasses not only the initial decision to provide Dr. Beauregard credentials but the subsequent decision to retain those credentials in light of what it alleges were multiple unsatisfactorily performed medical procedures. Accordingly, we find that the alleged misconduct relates to medical treatment or the dereliction of professional medical skill.

[2] Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached

The plaintiffs argue that expert medical evidence will not be needed to determine Lourdes’s appropriate standard of care because the standard of care “is based in the standards of hiring and reviewing applicants for credentialing.” While there may be merit in the plaintiffs’ argument that expert medical evidence may not be needed to review Lourdes’s hiring standards, as explained above, the misconduct alleged includes Lourdes response of retaining Dr. Beauregard in light of his alleged deficient performance of medical procedures. It follows that expert medical evidence would be required to determine whether Dr. Beauregard was qualified to perform the medical procedures, whether he committed malpractice, and whether that malpractice necessarily created a duty on the hospital to take action.

[3] Whether the pertinent act or omission involved assessment of the patient’s condition

This factor additionally weighs in favor of finding the plaintiffs’ allegations sound in malpractice. The plaintiffs’ claims involve evaluating Lourdes’s response | r4n light of his treatment of Mr. Plaisance which will necessarily involve the assessment of his condition.

/⅜7 Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform

The plaintiffs’ petition alleges that Lourdes was aware of certain negligent acts of Dr. Beauregard “yet failed to suspend or revoke [his] privileges.” Louisiana Revised Statutes 40:2114(E) provides that “[a] hospital shall establish rules, regulations, and procedures setting forth the nature, extent, and type of staff membership and clinical privileges, as well as the limitations placed by the hospital on said staff membership and clinical privileges for all health care providers practicing therein.” Thus, Lourdes’s action or inaction regarding Dr. Beauregard’s privileges is within the scope of activities a hospital is licensed to perform, and the fourth factor is satisfied. See Dinnat v. Texada, 09-665 (La.App. 3 Cir. 2/10/10), 30 So.3d 1139, writ denied, 10-540 (La.6/18/10), 38 So.3d 322.

[5] Whether the injury would have occurred if the patient had not sought treatment

The plaintiffs’ alleged injuries relate to Dr. Beauregard’s performance of medical procedures and thus would not have occurred if the patient had not sought treatment. Thus, the fifth factor is satisfied.

[6] Whether the tort alleged was intentional

This factor is inapplicable in the present case as the plaintiffs’ petition makes no allegations of an intentional tort. Id.

Having considered the plaintiffs’ allegations in the petition, the LMMA, and the six factor Coleman test, we find that the trial court correctly decided that the plaintiffs’ claim are covered as a malpractice claim under the LMMA.

| .DECREE

The judgment of the trial court sustaining the defendant’s, Our Lady of Lourdes Regional Medical Center, exception of prematurity is affirmed. All costs of these proceedings are assessed to the plaintiffs-appellants.

AFFIRMED.

      . Plaintiffs also sought review of the trial court’s judgment through a writ application; in the interest of judicial economy and justice, the ruling on the plaintiffs writ application is rendered simultaneously with this opinion. For the companion case to this appeal, see Scott Anthony Plaisance, et. al. v. Our Lady of Lourdes Regional Medical Center, et. al., CW 09-1502 (La.App. 3 Cir. 10/6/2010), 47 So.3d 23.

      . Neither party disputes that Lourdes is a qualified health care provider under La.R.S. 40:1299.41(A)(10).


text:
    Scott Anthony PLAISANCE, et al. v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC., et al.
    No. 09-1502.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.
    Patrick M. Wartelle, Leake & Anders-son, L.L.P., Lafayette, LA, for Defendant/Respondent, Our Lady of Lourdes Regional Medical Center, Inc.
    Ronald C. Richard, Richard Law Firm, L.L.C., Lake Charles, LA, for Plaintiffs/Applieants, Scott Anthony Plaisance, et al.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

For disposition of this consolidated matter, see Scott Anthony Plaisance, et. al. v. Our Lady of Lourdes Regional Medical Center, et. al., 10-348 (La.App. 3 Cir.10/6/10), 47 So.3d 17. All costs of these proceedings are assessed to the plaintiffs-relators.

AFFIRMED.


text:
    Andre GUILLORY v. ALLIED WASTE INDUSTRIES, INC. & AIG.
    No. 10-159.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Anthony Paul Palermo, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Defendant/Appellant, Allied Waste Industries, Inc. AIG Domestic Claims, Inc.
    Michael Bruce Holmes, Attorney at Law, Kinder, LA, for Plaintiff/Appellee, Andre Guillory.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

11 This is a workers’ compensation case. The employee, who was on light duty due to a prior accident, was driving a garbage truck so as to deliver the truck to a crew in Kinder, Louisiana, whose truck had broken down. The employee was driving this truck to the crew so that they could complete their collection route. Prior to reaching the crew in Kinder, the employee had an accident that caused him injuries.

During trial, the employee stated that he had worked since the accident sporadically doing odd-lot jobs. The workers’ compensation judge (WCJ) found, inter alia, that the employee was entitled to temporary, total disability (TTD) benefits, and that the employer and its insurer were arbitrary and capricious in denying the employee TTD benefits.

The employer raised two assignments of error. The first is that the WCJ erred in awarding the employee TTD benefits. We find merit in this assignment; however, the employee requested that, in the event we find the employer’s first assignment of error has merit, we amend the WCJ’s judgment to reflect that he was entitled to Supplemental Earnings Benefits (SEB). Given the status of the record before us, we grant the employee’s request and amend the WCJ’s judgment to reflect that he is entitled to SEB from the date of December 12, 2008. Further, we remand the case for a hearing to determine what, if any, offset the employer is entitled to receive due to the employee’s income from odd-lot employment. Finally, we find no abuse of the WCJ’s discretion in finding that the employer was arbitrary and capricious in failing to pay the employee any wage indemnity benefits. All other aspects of the WCJ’s judgment are affirmed.

FACTS AND PROCEDURAL HISTORY:

Andre Guillory (Guillory) was employed by Allied Waste Service (Allied) from | ¡>March of 2008 through December 18, 2008. Guillory was employed as a driver of a rear end loader garbage truck. Guil-lory experienced three accidental injuries that he claimed occurred during the course and scope of his employment. The dates of those accidents are November 6, 2008, November 11, 2008, and December 12, 2008.

Guillory did not seek treatment for his first injury. Following the second injury, Allied sent Guillory to Dr. Sunil Bharwani in Oakdale, Louisiana. On December 8, 2008, Dr. Bharwani diagnosed Guillory with a tear of the meniscus of his left knee and placed him on light duty. Allied accommodated Guillory’s limitations by allowing him to perform clerical work in the Oberlin, Louisiana office for two or three days.

On December 12, 2008, a fellow employee approached Guillory at the Oberlin office and informed Guillory that a garbage truck had broken down in Kinder and that a replacement truck needed to be delivered to the awaiting crew. Guillory agreed to drive the replacement truck to the crew. According to Guillory, prior to reaching the crew in Kinder, the replacement truck had a tire malfunction, causing Guillory to lose control of the truck. Guil-lory was in a one vehicle accident wherein the truck was rolled over. Guillory was transported from the scene by ambulance.

On December 17, 2008, Guillory was again examined by Dr. Bharwani and again placed on light duty. The next day, on December 18, 2008, Allied terminated Guillory. On January 8, 2009, Guillory had made written demand to Allied for indemnity benefits and payment of medical mileage and approval of medical examination. In a letter dated January 27, 2009, Allied, through its insurer, AIG, sent Guil-lory a letter that stated, “[ajfter completing the investigation of your claim, we find the facts presented do not appear to be covered under the Louisiana work comp |sact. Your injury does not appear to have arisen out of the course of employment.” Guillory has not ever received any indemnity benefits or wages from Allied since December 12, 2008. However, at no time in the course of the litigation does Allied give any explanation for its conclusion that “the facts presented do not appear to be covered under the Louisiana work comp act” nor any justification for its assertion that Guillory’s “injury does not appear to have arisen out of the course of employment.”

Guillory filed a disputed claim for compensation against Allied and AIG. A trial on the merits was held on October 14, 2009. In Guillory’s testimony, he stated that he had engaged in odd-lot employment since the accident.

On October 27, 2009, the WCJ rendered a judgment in favor of Guillory against Allied awarding him TTD benefits from December 13, 2008, a penalty of four thousand dollars for Allied’s arbitrary and capricious failure to pay Guillory wage indemnity benefits, a penalty of two thousand dollars for Allied’s arbitrary and capricious failure to pay Guillory’s mileage reimbursement claims, a penalty of two thousand dollars for Allied’s arbitrary and capricious failure to pay for a medical examination from Guillory’s choice of orthopedist, and an award of eighteen thousand, five hundred dollars representing attorney’s fees pursuant to La.R.S. 23:1201. Allied has appealed this judgment, alleging the following two assignments of error:

ASSIGNMENTS OF ERROR:

1. The WCJ erred in awarding Guillory temporary, total disability benefits.
2. The WCJ erred in finding Allied arbitrary and capricious in not paying Guillory temporary, total disability benefits.

ASSIGNMENT OF ERROR NUMBER ONE:

In its first assignment of error, Allied contends that the WCJ erred in awarding [ ¿Guillory temporary, total disability benefits due to Guillory’s testimony that he engaged in some form of employment after the work related injury. We find that Allied’s assignment has merit.

In the case before us, Allied posits a question of law as to whether the WCJ was legally correct in its application of La.R.S. 23:1221(1). When conducting an appellate review of such questions of law, appellate courts simply determine if the lower court was legally correct. Sanchez v. Louisiana Nursery, 09-1247 (La.App. 3 Cir. 4/7/10), 34 So.3d 1047.

Louisiana Revised Statutes 23:1221(1) (emphasis added) states that compensation for temporary, total disability benefits shall be paid:

(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.
(b) For purposes of Subparagraph (l)(a) of this Paragraph, compensation for temporary disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
(c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
(d) An award of benefits based on temporary total disability shall cease |swhen the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.

In the case before us, Guillory testified as follows:

Q Now, since the accident, December 12th of 2008, have you been able to do some work?
A Yes.
Q What have you been able to do?
A In fact — in June, my niece, who lost her husband last year, needed her house painted and she couldn’t afford to hire a contractor, so she was trying to help me out and she knows my situation and asked if I could help paint her house, so I told her me and my sons could start on it and try and paint it for her. Yes, we have been — I painted her house.
Q Did your niece pay you for this work?
A Yes.
Q Did you keep a record of how much she paid you?
A Yes.
Q As you sit here, do you know how much that total amount was that she paid for that job?
A $3,125.

Guillory further testified as to working at other jobs. The following is another excerpt of his testimony:

Q And other than paint the house, is there anything else that you have done?
A I drove a truck for Buster’s Craw-fish three times to haul crawfish, once to New Orleans and a couple times to Houston.
|(iQ And have you done anything else?
A Since I finished painting my niece’s house, a friend of mine who also knows my situation asked if I could help paint their bedroom, just the bedroom in their house.
Q Have you done any substitute teaching?
A I did. I did some substitute teaching like two or three days in February of this last — this year and again in March and a couple in April and in May.

Given this testimony coupled with the clear language of La.R.S. 23:1221(l)(b), we find that the WCJ was legally incorrect in awarding Guillory temporary, total disability benefits. Accordingly, we reverse the WCJ’s judgment solely on whether Guillo-ry is entitled to temporary, total disability benefits under La.R.S. 23:1221(l)(b).

Guillory has requested in brief that should this court find that the WCJ was legally incorrect in awarding him temporary, total disability benefits, that we amend the judgment of the WCJ to reflect that Supplemental Earnings Benefits (SEB) should have been awarded to him. To do so would require this court to conduct a de novo review of the record to determine whether Guillory proved below that he is entitled to SEB under La.R.S. 28:1221(3).

Louisiana Code of Civil Procedure Article 2164 states, in pertinent part, “[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” Our supreme court, in Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163, 165-66 (1975) (citations and footnotes omitted) stated:

While the trial court remains the original forum for resolving factual and legal issues, the Louisiana Constitution expressly extends the jurisdiction of appellate courts in civil cases to the review of facts as well as law.
Ji • • •
In addition to the constitutional authority, and consistent with it, there is a very practical consideration which encourages our appellate courts to exercise their jurisdiction to review factual findings: judicial economy. When the entire record is before the appellate court, remand for a new trial produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process. Although the appellate court does not gain the benefit of personally viewing the witnesses, it does have a complete record and the constitutional authority to decide.

The WCJ conducted a trial below that included exhibits, testimony, and witnesses presented. As such, we find that the record before us is complete, and we will look to that record to determine whether Guil-lory was entitled to SEB.

Louisiana Revised Statutes 23:1221(3) states, in pertinent part, that workers’ compensation is to be paid according to the following:

(3) Supplemental earnings benefits.
(a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.

Prior to trial, the parties stipulated to Guillory experiencing an accident giving rise to injury as defined by La.R.S. 23:1021, while in the course and scope of his employment on November 6, 2008, November 11, 2008, and December 12, 2008. The parties also stipulated that Guillory’s average weekly wage was $767.20, that Guillory was on light duty prior to the December 12, 2008 accident, and that Guil-lory |swas terminated on December 18, 2008. Finally, the parties stipulated that Guillory had made written demand to Allied for indemnity benefits and payment of medical mileage and approval of examination through correspondence on January 8, 2009, and that Guillory received no indemnity benefits or wages from Allied since December 12, 2008.

Given these stipulations, it is clear that Guillory is entitled to SEB. Therefore, we render that Allied pay Guillory all SEB that he is entitled to receive from the date of December 12, 2008. However, the record in unclear as to what income, if any, Guillory earned during this time frame that would allow Allied an offset of paying Guillory some of the SEB. Thus, we remand the case to determine what, if any, offset Allied is entitled to receive due to Guillory’s income from painting his niece’s and friend’s home, driving a crawfish truck, substitute teaching, or otherwise.

ASSIGNMENT OF ERROR NUMBER TWO:

Allied alleges in its second assignment of error that the WCJ erred in finding Allied arbitrary and capricious in not paying Guillory temporary, total disability benefits. Allied’s assignment of error is misguided.

The WCJ’s judgment did not state that the penalties were for Allied’s failure to pay TTD benefits. The judgment states that Allied is responsible to Guillory for penalties “said sum representing statutory penalties upon unpaid wage indemnity benefits.” Therefore, we will treat Allied’s second assignment of error as a request for this court to review whether Allied should be cast with penalties for failure to pay any type of wage indemnity benefits to Guillory.

The standard of reviewing the propriety of penalties awarded by a WCJ is that of abuse of discretion. Halker v. American Sheet Metal, 04-1407 (La.App. 3 Cir. 3/16/05), 898 So.2d 629. Thus, we will determine whether the WCJ’s finding of arbitrary and capricious behavior by Allied in denying Guillory wage indemnity benefits was clearly an abuse of discretion. While we recognize that Allied’s assignment of error specifies TTD benefits, this review is proper as Allied, in brief, argues that it was not arbitrary and capricious in failing to pay Guillory SEB because Guillo-ry failed in his duty under La.R.S. 2S:1221(3)(f).

Allied argues that because Guillory did not notify it of his employment status, it was not in a position to assess whether Guillory had earned ninety percent of his pre-injury income in order to qualify for SEB. However, in a letter dated January 27, 2009, Allied, through its insurer, AIG, sent Guillory a letter that stated, “[ajfter completing the investigation of your claim, we find the facts presented do not appear to be covered under the Louisiana work comp act. Your injury does not appear to have arisen out of the course of employment.”

The language of the January 27, 2009, letter is clear. Allied, through AIG, informed Guillory of its position that his injuries/disabilities were not covered by workers’ compensation. Thus, there was no reason for Guillory to notify Allied of his employment status. As such, we find Allied’s argument is without merit.

Therefore, given that Allied has stipulated that Guillory’s injuries were a result |,nof work related accidents on November 6, 2008, November 11, 2008, and December 12, 2008, and that Guillory never received any indemnity benefits or wages from Allied since December 12, 2008, we find no abuse of the discretion afforded to the WCJ in finding that Allied was arbitrary and capricious in denying Guillory indemnity wage benefits.

CONCLUSION:

Allied raised two assignments of error. We found merit to the first assignment of error. However, Guillory requested that, in the event we find Allied’s first assignment of error has merit, we amend the WCJ’s judgment to reflect that Guillory was entitled to SEB. Given the status of the record before us, we granted Guillory’s request and amend the WCJ’s judgment to reflect that he is entitled to SEB starting on December 12, 2008. Further, we remand the case for a hearing to determine what, if any, offset Allied is entitled to receive in paying Guillory SEB due to Guillory’s income from painting his niece’s and friend’s home, driving a crawfish truck, substitute teaching, or otherwise.

In Allied’s second assignment of error, it claimed that the WCJ erred in finding it arbitrary and capricious in not paying Guillory temporary, total disability benefits. The WCJ’s judgment actually awarded Guillory penalties due to Allied’s arbitrary |nand capricious refusal to pay wage indemnity benefits. We found no abuse of discretion in the WCJ’s determination that Allied’s actions with respect to SEB were arbitrary and capricious.

All other aspects of the WCJ’s judgment were not raised as error by Allied. Therefore we affirm that Allied is to pay Guillo-ry a penalty of four thousand dollars for its arbitrary and capricious failure to pay Guillory wage indemnity benefits, a penalty of two thousand dollars for its arbitrary and capricious failure to pay Guillory’s mileage reimbursement claims, a penalty of two thousand dollars for its arbitrary and capricious failure to pay for a medical examination from Guillory’s choice of orthopedist, and an award of eighteen thousand, five hundred dollars representing attorney’s fees pursuant to La.R.S. 28:1201. All costs of this appeal are assessed to Allied.

AFFIRMED, AS AMENDED, AND REMANDED WITH INSTRUCTIONS.

      . Louisiana Revised Statutes 23:1221(3)(Q states:
      Any compensable supplemental earnings benefits loss shall be reported by the employee to the insurer or self-insured employer within thirty days after the termination of the week for which such loss is claimed. The director shall provide by rule for the reporting of supplemental earnings benefits loss by the injured worker and for the reporting of supplemental earnings benefits and payment of supplemental earnings benefits by the employer or insurer to the office and may prescribe forms for such reporting. The office, upon request by the employer or insurer, shall provide verification through unemployment compensation records under the Louisiana Employment Security Law of any claimed supplemental earnings benefits loss and shall obtain such verification from other states, if applicable.

      . The WCJ correctly noted Allied’s questionable behavior at the end of the litigation:
      [W]e are talking here about a 50-some-year-old disabled veteran, college graduate with 30-some-odd-year successful work history driving a 30-ton garbage truck full of garbage; and apparently, from all I can gather, he is doing this to bail out the company. In gratitude, which I suppose is not really the word I'm looking for here, sounds like retribution, I think the company has plumbed to a new depth and added a new dimension to the term arbitrary and capricious and almost callous. I just can’t fathom why they did what that did. I don’t think any of us know why they — I'm not even sure who the "they” is here. All the people from Allied seem to either not know anything or passing it onto somebody.... But there was absolutely nothing done; and even [defense counsel], who is better at [] this than most people I know, including me, can’t do much with this one because there's just nothing to say in these people’s defense.