author: PAUL A. BONIN, Judge.

text:
    Tanya SMITH v. Nolan BRUMFIELD, Discover Bank, and the Lender’s Group, Inc.
    No. 2013-CA-1171.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2014.

      John A.E. Davidson, Christopher J. Davidson, Davidson & Davidson, APLC, Metairie, LA, for Plaintiff/Appellant.
    James E. Uschold, James E. Uschold, PLC, New Orleans, LA, for Defendani/Ap-pellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

I,Tanya Smith purchased immovable property in New Orleans at a tax sale after Nolan Brumfield, the owner of the property, failed to pay the ad valorem taxes for the 2008 tax year. During the redemptive period, Ms. Smith received two notices from the City of New Orleans threatening her with fines and other enforcement action if she did not remediate the unoccupied and apparently blighted property. In response, Ms. Smith obtained an ex parte writ of possession from the district court and made repairs to the property. The City nonetheless took enforcement action, imposed a fine, and declared the property blighted.

Prior to the expiration of the redemptive period, however, Mr. Brumfield tendered the past due taxes with interest and costs, and obtained a certificate of redemption. Notwithstanding Ms. Smith’s writ of possession, Mr. Brumfield then took actual possession of the property. Mr. Brumfield did not reimburse Ms. Smith for any of the funds that she expended to repair the property.

Ms. Smith instituted suit against Mr. Brumfield and others in which she sought inter alia injunctive relief by which she would possess the property and |2prohibit Mr. Brumfield’s occupancy and possession until Ms. Smith was fully reimbursed or otherwise able to acquire title to the property. Mr. Brumfield answered the suit and sought injunctive relief against Ms. Smith to prohibit her possession and occupancy of the property. On May 30, 2013, the trial judge denied Ms. Smith’s request for a preliminary injunction, and, on July 8, 2013, the trial judge granted a preliminary injunction in favor of Mr. Brumfield. Ms. Smith timely appealed both judgments. See La. C.C.P. art. 3612 C. See also Smith v. Brumfield, unpub., 13-0928 (La.App. 4 Cir. 7/2/13).

Because Ms. Smith has not shown irreparable harm in the absence of injunctive relief or a likelihood of success at the trial on the merits, we conclude that the trial judge did not abuse her discretion in denying injunctive relief to Ms. Smith. We therefore affirm the trial court’s rulings and explain our decision in greater detail below.

I

We turn in this Part to describe the facts underlying this controversy.

Is ^

Mr. Brumfield acquired the residential property located at 12941 Parlange Court in New Orleans in 2004. Mr. Brumfield, however, did not pay his ad valorem taxes for 2008, and the property was sold at tax sale to Ms. Smith. On December 3, 2009, the City’s Finance Director executed a Tax Sale Deed to Ms. Smith upon her payment of the full amount of the delinquent taxes, interest, penalties, and costs due for that property. Notably, the Tax Sale Deed in bold print and capital letters set forth: “This sale shall be redeemable for a period of three (3) years, or for eighteen months (18) months if blighted or abandoned, from the filing and recordation date of this deed in the parish conveyance office.” (emphasis added). The recordation date shown on the instrument is February 9, 2010.

On February 8, 2013, the Finance Director issued a Certificate of Redemption to Mr. Brumfield which stated that Mr. Brumfield had deposited the full amount of taxes, interest, penalties and costs due for the years of 2008 through 2013 with the City of New Orleans’ Tax Collector. Mr. Brumfield re-took actual possession of the property the next day.

During the period between the date of the tax sale and the issuance of the redemption certificate, the property became the subject of code enforcement for public health, housing, and environmental violations. On July 22, 2011, the City issued two notices at the property’s address to Mr. Brumfield commanding him to appear at a hearing on August 31, 2011. The record neither indicates whether Mr. Brumfield received notice of the hearing, nor what action, if any, occurred on that | ¿date. On August 31, 2011, however, Ms. Smith did accept service for the same two notices regarding a hearing date scheduled for November 11, 2011. Again, the record neither indicates whether Mr. Brumfield received notice of the November hearing, nor what action, if any, occurred on that date.

Reacting to these threats of enforcement action against the property, Ms. Smith applied to the district court on October 13, 2011 for an ex parte writ of possession under the authority of La. R.S. 47:2158 A. Initially, the district judge denied that application as premature. An attorney was then appointed to represent Mr. Brum-field, who was identified in the application as an “absentee.” Subsequently, on February 13, 2012, the district judge ordered that a writ of possession issue to Ms. Smith.

Ms. Smith, by affidavit, states that she incurred about $20,000 in expenses in remediation of the property stemming from the installation of a new roof and removal of pervasive mold infestation, weeds, overgrown grass, and dead trees. Despite these efforts, the City’s code enforcement bureau still rendered an administrative judgment on May 15, 2012 declaring the property both blighted and a public nuisance and assessing fines and costs against Mr. Brumfield.

B

On March 26, 2013, Ms. Smith filed a supplemental and amended petition praying for injunctive relief, but did not specify the relief to which she claimed to be entitled. Her affidavit in support of her application for a preliminary injunction asserted that Mr. Brumfield intentionally disregarded the writ of possession issued 15by the trial judge when he took actual possession of the property. Additionally, Ms. Smith’s reply to Mr. Brumfield’s memorandum in opposition to her motion for preliminary injunction contends that La. C.C.P. art. 3663 allows for the trial judge to grant her injunctive relief to maintain possession of the property without a showing of irreparable harm.

The trial judge denied Ms. Smith’s motion for preliminary injunction on May 30, 2013 and granted Mr. Brumfield’s motion for preliminary injunction on July 8, 2013. The trial judge enjoined, restrained, and prohibited Ms. Smith from entering the property or interfering with Mr. Brum-field’s ownership and/or possessory rights in the property. Ms. Smith timely filed a motion for devolutive appeal to this Court on July 10, 2013.

II

In this Part, we address the requirements for the issuance of a preliminary injunction and the standard by which we review a trial judge’s decision to grant or deny preliminary injunctive relief.

“A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits.” Elysian Fields Church of Christ v. Dillon, 08-0989, p. 6 (La.App. 4 Cir. 3/18/09), 7 So.3d 1227, 1231. A “court may hear an application for a preliminary injunction ... upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases.” La. C.C.P. art. 3609. “A preliminary injunction shall not issue | ¿unless notice is given to the adverse party and an opportunity had for a hearing.” La. C.C.P. art. 3602.

“The prima facie standard of proof to obtain a preliminary injunction is ‘less than that required for a permanent injunction.’ ” Dillon, 08-0989 at p. 6, 7 So.3d at 1231 (quoting Historic Restoration, Inc. v. RSUI Indem. Co., 06-1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208). Ordinarily, to prevail in the trial court on a petition for preliminary injunction, the petitioner is required to establish by prima facie evidence that: (1) she will suffer irreparable injury, loss, or damage if the motion for preliminary injunction is not granted; and (2) she is entitled to a preliminary injunction through at least a showing that she will likely prevail on the merits of the case. See General Motors Acceptance Corp. v. Daniels, 377 So.2d 346, 348 (La.1979). See also Historic Restoration, 06-1178 at p. 11, 955 So.2d. at 208; La. C.C.P. art. 3601.

“An appeal may be taken as a matter of right from an order or judgment relating to a preliminary ... injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.” La. C.C.P. art. 3612 B. “An appeal from an order or judgment relating to a 17preliminary injunction must be taken, and any bond required must be furnished within fifteen days from the date of the order or judgment.” La. C.C.P. art. 3612 C.

“A trial court has broad discretion in the granting or denial of a preliminary injunction, and will not be disturbed on review absent a clear abuse of that discretion.” Yokum v. Pat O’Brien’s Bar, Inc., 12-0217, p. 6 (La.App. 4 Cir. 8/15/12), 99 So.3d 74, 80 (citing Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 493 (La.1979)) (internal quotations omitted). “This broad standard is, of course, based upon the conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion.” Id., 12-0217 at p. 7, 99 So.3d at 80 (citing South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent to Own, Inc., 07-0599, pp. 4-5 (La.App. 4 Cir. 2/27/08), 980 So.2d 89, 93).

Ill

In this Part, we address Ms. Smith’s failure to establish that she will suffer irreparable harm in the absence of injunc-tive relief.

In order to prove that irreparable harm will befall a party from the non-issuance of a preliminary injunction, the petitioning party must show that “money damages cannot adequately compensate for the injuries suffered and the injuries ‘cannot be measured by pecuniary standards.’ ” Historic Restoration, 06-1178 at p. 11, 955 So.2d at 208 (quoting Saunders v. Stafford, 05-0205, p. 6 (La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754). “[M]ere inconvenience is not enough to show irreparable injury needed for the issuance of a preliminary injunction.” Hobbs v. Gorman, 595 So.2d 1264, 1266 (La.App. 4th Cir.1992). An award of damages, not injunctive relief, is the traditional remedy for harm that does not involve irreparable injury. Id.

We here emphasize that injunctive relief is an equitable remedy. And an equitable remedy is ordinarily only available when a party has no adequate legal remedy. Cf. West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665, 670 (1967) (on rehearing) (“By adequate remedy at law is meant one which is as speedy, efficient, and complete as the remedy in equity.”). See also C. Napco, Inc. v. City of New Orleans, 06-0603, p. 6 (La.App. 4 Cir. 3/7/07), 955 So.2d 155, 160 (“An injunction is a harsh, drastic remedy that should only issue where the petitioner is threatened with irreparable harm and has no adequate remedy at law.”).

The primary relief which Ms. Smith seeks in her suit is monetary reimbursement for her expenses incurred in the preservation of the property. She strives to achieve that result through an injunction that provides her with continued possession of the immovable property until reimbursement. The legislature, however, has specifically provided a legal remedy to protect tax sale purchasers who must expend money to avoid code enforcement actions against such property — a writ of possession. See La. R.S. 47:2158 A (“When necessary to comply with an order of a political subdivision for the purpose of enforcing property standards ..., the judge shall grant ex parte an order of seizure and possession, commanding the sheriff to seize the property and place the purchaser in actual possession.”). This allows for the tax sale purchaser to take possession of the | ¡property in order to make necessary repairs called for by the political subdivision’s property standards. Ms. Smith obtained a writ of possession and, according to her affidavit filed in support of her motion for a preliminary injunction, took possession of the property and incurred expenses while performing repairs.

The statute also provides a means whereby the reimbursement of the tax sale purchaser’s expenses can be secured. A tax sale purchaser can acquire a privilege on the property for the costs of complying with the order of a political subdivision. See La. R.S. 47:2158 B. A privilege is “a right, which the nature of the debt gives to a creditor, and which entitles him to be preferred before other creditors, even those who have mortgages.” La. Civil Code art. 3186. In order to preserve that statutory privilege, the purchaser must file her writ of possession with the recorder of mortgages of the parish in which the property is located within fifteen days after its issuance. See La. R.S. 47:2158 B. “The effect of recordation shall cease one year after the date of filing the writ of possession, unless a statement of privilege referencing the writ and detailing the costs is filed with the recorder of mortgages before the expiration of one year from the date of filing the writ.” La. R.S. 47:2158 B. “[T]he effect of recordation shall cease one year after the date of filing the statement of privilege, unless a suit to enforce the privilege and a notice of lis pendens is filed with the recorder of mortgages prior to the cessation of the effects of recordation.” La. R.S. 47:2158 B.

The legislature has also provided tax sale purchasers in the city of New Orleans with an additional remedy. “[I]n the city of New Orleans, if a tax sale 11ftpurchaser has made improvements to abandoned or blighted property, as defined in [La.] R.S. 19:136.1, in order to bring the property into compliance with one or more municipal code ordinances prior to the property being redeemed, the person redeeming the property shall reimburse the tax sale purchaser for the costs of improvements required to bring the property into compliance with any such ordinances.” La. R.S. 47:2161 B(l). “In order to receive reimbursement for the costs of [these] improvements, the tax sale purchaser shall be required to file an affidavit and receipts in the mortgage records of the parish documenting the costs of such improvements within sixty days after receiving notice of redemption.” La. R.S. 47:2161 B(2). “The maximum amount of reimbursement for improvements shall be fifteen hundred dollars for abandoned property and three thousand dollars for blighted property.” La. R.S. 47:2161 B(l). “The failure by a person redeeming property to reimburse a tax sale purchaser for improvements made [under La. R.S. 47:2161 B(l) ] shall not terminate or otherwise impair in any way the right of any such person to redeem his property.” La. R.S. 47:2161 B(3).

Thus, it is clear that the legislature, in providing for the writ of possession, has created a specific legal remedy to afford protection to tax sale purchasers who expend money to remediate blight conditions under threat of enforcement action. Ms. Smith actually obtained a writ of possession. The statutory remedy or the remedy at law which is provided is as speedy, efficient, and complete as the |nremedy in equity which Ms. Smith has pursued. See West, 211 So.2d at 670. The statutory remedy provided to protect expenditures on property subject to a tax sale is certain and reasonably prompt. Id. at 671. Thus, we conclude that Ms. Smith had an adequate remedy at law. Because Ms. Smith had an adequate remedy other than in-junctive relief, she has not shown any irreparable harm and is not entitled to the issuance of a preliminary injunction.

IV

In this part, we examine Ms. Smith’s failure to make a prima facie showing of a likelihood of success on the merits. Ms. Smith contends that she is entitled to confirm her tax title because Mr. Brumfield was not entitled" to redeem his property. As she is unlikely to succeed on the merits of this claim at trial, she is not entitled to the issuance of a preliminary injunction.

A

A “redemptive period” is the time “period in which a person may redeem property as provided in the Louisiana Constitution.” La. R.S. 47:2122(11). “The property sold [for non-payment of taxes] shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.” La. Const. art. VII, § 25 B(l). See also La. R.S. 47:2243; La. R.S. 47:2244.

112The constitution currently provides only one exception to the three year redemptive period. The exception, exclusively limited to residential or commercial property in New Orleans, reduces the redemptive period to eighteen months when the property sold at tax sale “is abandoned property as provided by [La.] R.S. 33:4720.12(1) or blighted property as defined by Act 155 of the 1984 Regular Session.” La. Const. art. VII, § 25 B(2).

“All redemptive periods provided in the Louisiana Constitution are peremptive.” La. R.S. 47:2241. See also Hards v. Estate of Fuller, 532 So.2d 1367, 1371 (La.1988). “Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the per-emptive period.” La. Civil Code art. 3458. “Peremption may not be renounced, interrupted, or suspended.” La. Civil Code art. 3461. “Peremption differs from prescriptive [periods] in two respects: (1) the expiration of the peremptive time period destroys the cause of action itself; and (2) nothing may interfere with the running of a peremptive time period.” Naghi v. Brener, 08-2527, p. 11 (La.6/26/09), 17 So.3d 919, 926.

|isln order to determine whether the property qualifies for this shortened redemptive period, we look to those definitions incorporated into Section 25 B(2) by reference. La. R.S. 33:4720.12(1) defined “abandoned property” as “immovable property that has been adjudicated to a political subdivision for nonpayment of taxes, and which property is vacant or not lawfully occupied.” Act 155 defined “blighted property” as “those premises which have been declared vacant, uninhabitable, and hazardous by the Department of Safety and Permits of the city of New Orleans.” 1984 La. Acts no. 155. There is nothing in the record to support a finding that this property is “abandoned” within the meaning of the constitutional provision. The property, according to the judgment, was declared “blighted” and a public nuisance though on May 15, 2012.

In order to prevail at the trial on the merits, Ms. Smith must establish that, by the time Mr. Brumfield obtained his certificate of redemption on February 8, 2013, his right to redeem had already been perempted by the passage of time. A judgment declaring the property as “blighted,” however, does not automatically retroactively shorten Mr. Brumfield’s redemptive period from three years to eighteen months from the date of recordation of the tax sale deed by Ms. Smith. In Padilla v. Schwartz, 'this Court held that property sold at a tax sale for nonpayment of ad valorem taxes was subject to a three year redemptive period. This Court found that, for the eighteen month redemptive period provided in Section 25 B(2) to apply, the sale of the property would “have to occur under the statutory authority governing sales of blighted property.” 06-1517, p. 7 (La.App. 4 Cir. 3/11/09), 11 So.3d 6, 12. Whether the eighteen month redemptive period is restricted in its application to sales stemming from designations of property as “blighted” or “abandoned” is immaterial to this appeal. We need only align with the reasoning of Padilla insofar as holding that property must be declared “abandoned” or “blighted” prior to its sale in order for the eighteen-month redemptive period provided for in La. Const. art. VII, § 25 B(2) to apply. Retroactive shortening of peremptive periods in which tax debtors may redeem their property would be excessively punitive to tax debtors and run in contravention to the law’s preference that property sold for nonpayment of taxes be redeemed by the tax, debtor. See Harris v. Guardian Funds, Inc., 425 So.2d 1322, 1326 (La.App. 4th Cir.1983). Additionally, an adjustment of this sort would only serve to incentivize tax sale purchasers to allow property purchased at tax sale to further fall into disrepair.

Ms. Smith also asserts that La. R.S. 13:2575 C(2) denies any right of redemption to Mr. Brumfield. This statute, however, is not applicable in this case. La. R.S. 18:2575 C(2) provides: “Failure to pay the liens shall cause the immovable property in or on which the violation occurred to be subject to the same provisions of law as govern tax sales of immovable property when the immovable property has been declared blighted or a public nuisance by an administrative hearing officer ..., the property owners and other parties having interest in the property shall not have a right of redemption.” This statute only arises from a property owner’s failure to pay liens stemming from civil fines prescribed for | ^blighted or abandoned property or violations of other ordinances created pursuant to La. R.S. 13:2575 AQL).

Mr. Brumfield’s property was sold for nonpayment of taxes on the property prior to its designation as “blighted” or as a public nuisance. The plain language of the constitution requires that the property be blighted, that is, under an adjudication of blight, at the time of its sale. See La. Const, art. VII, § 25 B(2) (“[W]hen such property sold is residential or commercial property which is abandoned property as provided by [La.] R.S. 33:4720.12(1) or blighted property as defined by Act 155 of the 1984 Regular Session [of the Louisiana Legislature].”), (emphasis added).

Because the property was not abandoned or blighted at the time of the tax sale to Ms. Smith, the shortened redemptive period of eighteen months is inapplicable. Thus, the redemptive period was three years from the recordation of the tax sale.

B

Here, the record shows that Mr. Brumfield timely exercised his right to redeem his property and obtained his certificate of redemption within the three-year period. Ms. Smith would only be entitled to confirm her tax title if the redemptive period lapsed without Mr. Brumfield having redeemed his property. “If the tax sale property is not redeemed within the redemptive period, then at the | ^termination of the redemptive period, tax sale title transfers to its holder ownership of the tax sale property, free of ownership and other interests,- claims, or encumbrances held by all duly notified persons.” La. R.S. 47:2121 C(Z) (emphasis added). “After expiration of the redemptive period, an acquiring person may institute an ordinary proceeding against the tax sale parties whose interests the petitioner seeks to be terminated.... The suit shall be brought in the parish in which the property is located.” La. R.S. 47:2266 A(l) (emphasis added). See also La. R.S. 47:2121 B.

But once the property owner timely redeems his property, the rights of the tax sale purchaser to the ownership or possession of the property are dissolved. The tax sale purchaser, however, is entitled to be promptly paid the redemption payment. See La. R.S. 47:2243. The tax sale purchaser is also entitled to reimbursement from the property owner for the costs of improvements required to bring the property into compliance with municipal ordinances, see La. R.S. 47:2158 B; La. R.S. 47:2161 B(l), and may enforce any privilege that she may have perfected on the property. See La. R.S. 47:2158 B. But this is the extent of the tax sale purchaser’s rights.

The writ of possession, insofar as it allows for actual possession of the property by the tax sale purchaser, is necessarily by operation of law dissolved upon the issuance of the certifícate of redemption. Consequently, Ms. Smith’s 117reliance upon the writ of possession as the basis for excluding Mr. Brumfield from his property post-redemption is insupportable. Her success at the trial on the merits in showing that the peremptive period to redeem lapsed prior to Mr. Brumfield’s obtaining the certificate of redemption such that she would be able to confirm her tax title is unlikely. Because she is unlikely to prevail on these issues at the trial on the merits, she is not entitled to the issuance of a preliminary injunction.

CONCLUSION

Ms. Smith has not shown that the trial judge abused her discretion in denying her motion for a preliminary injunction. Because Ms. Smith had a legal remedy available to her to secure the repayment or reimbursement of funds expended to remediate the property, she cannot make a prima facie showing of irreparable harm on that claim. Additionally, because Mr. Brumfield timely redeemed his property, she cannot make a prima facie showing that she is likely to prevail at the trial on the merits that she is entitled to the ownership of the property. Thus, we find that the trial judge did not abuse her discretion in denying the preliminary injunction sought by Ms. Smith.

DECREE

The interlocutory judgment rendered on May 30, 2013 denying the request of Tanya Smith for a preliminary injunction is affirmed. The interlocutory judgment rendered on July 8, 2013 granting the request of Nolan Brumfield for a | ^preliminary injunction is also affirmed. All costs of this appeal are taxed to appellant, Tanya Smith. See La. C.C.P. art. 2164.

AFFIRMED.

      . Mr. Brumfield has filed peremptory exceptions of no cause of action and no right of action collaterally. See La. C.C.P. art. 927(5),(6). These were not filed for the first time in our Court and had been previously denied by the trial court. Mr. Brumfield did not appeal those denials or include them in his answer to Ms. Smith’s appeal. We therefore do not consider his peremptory exceptions.

      . In her written argument, Ms. Smith focuses solely on the trial judge’s denial of her request for injunctive relief and did not directly assert any error stemming from the decision to grant injunctive relief to Mr. Brumfield. Ms. Smith’s argument explicitly assumes that if she establishes her entitlement to injunctive relief the injunctive relief granted to Mr. Brumfield would necessarily be vacated. Because we hold that the trial judge did not abuse her discretion in denying Ms. Smith's petition for preliminary injunction and Ms. Smith has not specified any independent error in the issuance of the preliminary injunction at Mr. Brumfield's request, we do not consider the merits of the trial judge’s decision to grant Mr. Brumfield's preliminary injunction.

      . There are exceptions to the irreparable harm requirement set forth in Article 3601. For example, a showing of irreparable injury is not required in cases where the conduct sought to be restrained is unlawful, such as when the conduct constitutes a direct violation of a prohibitory law. See Asaro v. City of New Orleans, 10-0572, p. 3 (La.App. 4 Cir 12/22/10), 54 So.3d 1214, 1217. Ms. Smith specifically claims that she is entitled to a preliminary injunction without a showing of irreparable harm because this is a possessory action. See La. C.C.P. art. 3663(1). Without deciding whether Ms. Smith’s action qualifies as a possessory action, we note that, based upon the record, she did not possess for more than a year immediately prior to the disturbance and thus could not successfully maintain a possessory action. See La. C.C.P. art. 3658(2).

      . We are uncertain from the record whether Ms. Smith took the additional steps necessary to effect her security interest in the property. Whether she did or did not is of no legal consequence; it is the availability of the remedy and not a party’s availing herself of the remedy which is of legal consequence in the context of the equitable remedy of injunctive relief.

      . The legislature in the 2013 Regular Session passed a proposed amendment to add Subsection B(3) to Section 25, which will be included in the constitution subject to its passage by a majority of the electors at the statewide election on November 4, 2014. 2013 La. Acts no. 436. The amendment provides for shortened redemptive periods for property other than in the city of New Orleans which is declared blighted or abandoned. This amendment provides definitions for abandoned and blighted different from those listed in Subsection B(2).

      .La. Const, art. VII, § 25 B(2) states:
      In the city of New Orleans, when such property sold is residential or commercial property which is abandoned property as provided by [La.] R.S. 33:4720.12(1) or blighted property as defined by Act 155 of the 1984 Regular Session [of the Louisiana Legislature], it shall be redeemable for eighteen months after the date of recordation of the tax sale by payment subject to the same payment of costs, penalties, and interest set forth in [La. Const, art. 7, § 25 B(l) ].

      . "If redeemed, the person redeeming shall pay all statutory impositions assessed upon the property subsequent to the tax sale." La. R.S. 47:2161 A. “The tax collector shall promptly remit the redemption payment to the tax sale purchaser; the register shall promptly deposit the redemption payment in the state treasury.” La. R.S. 47:2243. "Upon payment of the redemption costs, the tax collector shall issue a redemption certificate in the name of the tax debtor.” La. R.S. 47:2245.

      . See La. Civil Code art. 2567 (relative to conventional sales with the right of redemption "which is the right to take back the thing from the buyer”). "When the right to redeem is exercised it effects a dissolution of the sale and of the transfer of the property which was the consequence of it.” La. Civil Code art. 2567 cmt. (c).


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Gary B. GREER v. WHOLE FOODS MARKET, INC.
    No. 2013-CA-0455.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2014.

      Daren Sarphie, Workers Compensation LLC, Metairie, LA, for Plaintiff/Appel-lee/Gary B. Greer.
    Roger A. Javier, Cassie E. Preston, The Javier Law Firm, LLC, New Orleans, LA, for Defendant/Appellant/Whole Foods Market, Inc.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   TERRI F. LOVE, Judge.

11 Gary Greer (“Mr. Greer”) sustained injuries while in the course and scope of his employment at Whole Foods Company, Inc. (“Whole Foods”) when he grabbed a falling meat cart. Mr. Greer filed a workers’ compensation claim against Whole Foods when it failed to authorize Mr. Greer’s orthopedic surgery and sent him to another physician for a second medical opinion. Mr. Greer filed a motion to strike seeking to exclude the reports of Dr. Gordon Nutik’s (“Dr. Nutik”) second medical opinion and Dr. Ralph Katz’s (“Dr. Katz”) independent medical examination (“IME”). The workers’ compensation court granted the motion to strike. At trial, the workers’ compensation court found that there was no dispute as to Mr. Greer’s condition, and thus he was entitled to surgery, penalties, and attorney fees. Whole Foods appeals the judgment of the workers’ compensation court claiming that Mr. Greer is not entitled to surgery due to conflicting medical opinions and is not entitled to penalties and attorney fees. We find that the workers’ compensation court properly relied on the opinion of Dr. Alexis Waguespack (“Dr. Waguespack”) when finding surgery was necessary and related 12to the subject accident as she was the choice of physician of Mr. Greer and Whole Foods. Additionally, we find the award of penalties and attorney fees proper. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In June 10, 2009, Mr. Greer sustained injuries to his neck and right shoulder during the course and scope of his employment with Whole Foods, when a meat cart he was pushing fell into a groove in the floor and began to fall. Mr. Greer grabbed the cart to stop it, and the cart struck his right side and cut his hand. Mr. Greer did not immediately seek medical treatment until July 2009, when he reported to Doctors After Hours clinic with complaints of neck pain. After learning of the accident, Whole Foods referred Mr. Greer to Dr. Paul Lansing (“Dr. Lansing”) at Concentra, who then referred Mr. Greer to Dr. Robert Steiner (“Dr. Steiner”), an orthopedic surgeon for further evaluation. Mr. Greer refused to see Dr. Steiner after having a bad experience with him during a prior, unrelated surgery. Consequently, Dr. Lansing referred Mr. Greer to Dr. Waguespack in September 2009. In December 2010, Mr. Greer signed an employee’s choice of physician form electing Dr. Waguespack as his choice of treating orthopedic surgeons.

Dr. Waguespack treated Mr. Greer and performed several tests between September 2009 and March 2012. During Mr. Greer’s treatment, Dr. Waguespack diagnosed Mr. Greer with “an instability pattern at C4-5 with anterolisthesis,” forami-nal stenosis, and disc bulge at C6-7 with radiculitis. She also noted Mr. |sGreer had degenerative disk disease. She testified that the accident aggravated some of Mr. Greer’s underlying pre-existing conditions. In support of her opinion, she compared the MRI films from 2004 and 2009 and found a significant difference in the post-injury cervical 2009 MRI study versus the previous MRI study in 2004. She also testified that the EMG studies were consistent with what she observed on the MRI films. Based on the studies, in December 2010, Dr. Waguespack requested authorization from Whole Foods to perform an anterior cervical fusion surgery on Mr. Greer.

In January 2011, Whole Foods sent Mr. Greer to Dr. Nutik for a second medical opinion. Despite not having the MRI films to review, Dr. Nutik disagreed with Dr. Waguespack’s recommendation for surgery and suggested a conservative treatment method. Due to the conflicting medical reports, Whole Foods requested an IME pursuant to La. R.S. 23:1123. The IME was scheduled with Dr. Katz for April 2011, and Mr. Greer was notified in March 2011. Prior to when the scheduled IME was to take place, Mr. Greer filed a pro se disputed claim for compensation (Form 1008) contesting the “appropriateness of the [IME].” The workers’ compensation court never set the matter for hearing and no action was taken in regards to Mr. Greer’s Form 1008. Because Mr. Greer never heard from the Office of Workers’ Compensation (“OWC”), Mr. Greer attended the IME with Dr. Katz who also disagreed with Dr. Waguespack’s recommendation for surgery.

Mr. Greer filed with the OWC a supplemental and amended petition in June 2011, claiming the surgery recommended by Dr. Waguespack was not approved, |4the use of a second medical opinion was improper, the use of an IME was improper, and a request for penalties and attorney fees. Mr. Greer also filed a motion to strike seeking to exclude the reports of Dr. Nu-tik’s second medical opinion and Dr. Katz’s IME. The court granted the motion to strike finding that the exam by Dr. Nutik was inappropriate and could not be used to create a dispute as to Mr. Greer’s condition and/or the course of treatment. The court also found that because it failed to set a hearing following Mr. Greer’s filing of the disputed claim, Mr. Greer did not waive his right to object to the IME.

Following a trial on the merits, the workers’ compensation court found Dr. Waguespack is Mr. Greer’s and Whole Foods’ choice of physician and Dr. Wag-uespack’s deposition and report properly excluded references to Dr. Katz’s findings. The court also concluded that Mr. Greer’s surgery was necessary and related to the subject accident, ordering Whole Foods to authorize and pay for the same. Additionally, the court found Whole Foods incorrectly calculated Mr. Greer’s indemnity benefits. As a result, the court ordered Whole Foods to pay penalties and attorney fees, but noted that Whole Foods was entitled to a credit against indemnity benefits paid while Mr. Greer was working. Whole Foods files this timely appeal, seeking reversal of the trial court’s finding that (1) Dr. Waguespack is Whole Foods’ choice of physician; (2) the IME by Dr. Katz was not appropriate; (3) Dr. Waguespack’s deposition should be admitted with references to Dr. Katz redacted; (4) cervical surgery is necessary and related to the accident; and (5) Mr. Greer is entitled to an award of penalties and attorney fees.

|,,STANDARD OF REVIEW

The standard of review applied in a workers’ compensation case is the “manifest error-clearly wrong” standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 6 (La.7/1/97), 696 So.2d 551, 556. The findings of the workers’ compensation court will not be set aside by the appellate court unless they are found to be clearly wrong after reviewing the record in its entirety. Id. See also Irving v. Transit Mgmt. of Se. Louisiana, Inc., 10-0360, p. 2 (La.App. 4 Cir. 7/20/10), 44 So.3d 796, 798. In addition, the appellate court will not disturb the trial court’s findings of fact in the absence of manifest error, or unless it is clearly wrong. In Simmons v. Associated Hosp. Servs., Inc. 03-0768, p. 6 (La.App. 4 Cir. 12/3/03), 862 So.2d 1043, 1048, this Court explained:

[w]here there are two permissible views of evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1164. Because determination of the existence of a work-related injury is [a] question of fact involving credibility of witnesses, determination of the trial judge, who had opportunity to observe and hear the witnesses, is given great weight on review. State v. Richardson, 459 So.2d 81 (La.App. 1 Cir.1984).

LOUISIANA REVISED STATUTE 23:1121

Whole Foods claims that Dr. Wag-uespack is Mr. Greer’s choice of physician only, and therefore, it was appropriate for Whole Foods to seek a second medical opinion from Dr. Nutik. Pursuant to La. R.S. 23:1121(A), the employer is entitled to have an injured employee examined “by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter ... during the pendency of his claim ...” The employer “shall not require the employee to be examined by more than one duly qualified 16medical practitioner in any one field or specialty unless prior consent has been obtained from the employee.” La. R.S. 23:1121(A).

Whole Foods avers that pursuant to La. R.S. 23:1121 (B)(2)(a), it did not “specifically direct” Mr. Greer to Dr. Wagues-pack, and as such, “Dr. Waguespack should only be considered [Mr. Greer’s] choice of orthopedic surgeons.” This argument, however, fails in light of the language of subsection (B)(3) which contemplates in what instances subsection (B)(2)(a) does not apply.

Under La. R.S. 23:1121(B)(3), any other physician to whom an employee is referred by an employee-selected physician is also deemed the employer’s choice. Upon learning of Mr. Greer’s accident and injury, Whole Foods, through its workers’ compensation adjuster, referred Mr. Greer to Dr. Lansing at Concentra for treatment. Dr. Lansing then referred Mr. Greer to Dr. Steiner, an orthopedic surgeon, for further evaluation; however, Mr. Greer refused to be examined by Dr. Steiner due to a bad experience during a prior, unrelated surgery. Dr. Lansing then referred Mr. Greer to Dr. Waguespack.

|7Whole Foods asserts that because Mr. Greer refused to see Dr. Steiner, Mr. Greer became directly involved in selecting his physician, and as a result Whole Foods did not “specifically direct” Mr. Greer to Dr. Waguespack as envisioned by La. R.S. 23:1121(B)(2)(a). Mr. Greer testified that when Concentra made the recommendation to treat with Dr. Waguespack, Mr. Greer did not have another orthopedist in mind, nor did he know Dr. Waguespack prior to Dr. Lansing’s referral. Mr. Greer “trusted in [Whole Foods]” and followed their recommendation. The trial court found Mr. Greer’s refusal to treat with Dr. Steiner was reasonable, and therefore, not a factor in the determination of whether Dr. Waguespack is Whole Foods’ choice of physician.

When Dr. Lansing, Whole Foods’ selected physician, referred Mr. Greer to Dr. Waguespack for treatment, Dr. Wagues-pack became Whole Foods’ choice of physician. Accordingly, we find the trial court did not err in finding that Dr. Waguespack is the physician of choice for both Whole Foods and Mr. Greer.

SECOND MEDICAL OPINION

Whole Foods also asserts that even if Dr. Waguespack is considered its choice of physician, Whole Foods is still entitled to a second medical opinion pursuant to the Louisiana Administrative Code, tit. 40, pt. 1, § 2711(A) which provides:

When surgery has been recommended by the treating physician, the Carrier/Self-Insured Employer is entitled to obtain a second professional opinion from a physician chosen by the Carrier/Self-Insured Employer. Regardless of the second surgical opinion outcome, the claimant remains free to elect not to undergo surgery after the consultation. The Carrier/Self-Insured Employer is responsible for informing the claimant when a second surgical opinion is required and for referring the claimant to a second surgical opinion physician. This program is designed to reduce unnecessary surgeries and to provide the claimant with possible alternate courses of treatment so that he or she can make an informed decision.

| ^Despite Section 2711 of the Hearing Rules giving an employer a right to obtain a second medical opinion when the treating physician recommends surgery, Section 2711 must be interpreted in light of La. R.S. § 23:1121. To do otherwise, would authorize the very conduct the legislation intends to prevent.

Section 2711 permits the employer to select its own physician when surgery is recommended. In this case, however, Whole Foods already selected its choice physician, when it referred Mr. Greer to Dr. Waguespack. The principles guiding the legislature’s enactment of La. R.S. 23:1121 cannot be ignored. As previously discussed, Whole Foods is bound by its choice of physician under La. R.S. 23:1121(B)(3). Simply because now Whole Foods does not agree with its selected physician’s recommendation, does not entitle it to choose a new physician within the same field in an attempt to find a prognosis more acceptable to Whole Foods. See Iberia Parish Sch. Bd. v. Broussard, 03-0151, p. 5 (La.App. 3 Cir. 9/10/03), 854 So.2d 464, 467 (employer could not seek a second opinion by a second neurosurgeon of its choice merely because it did not like the diagnosis of the first neurosurgeon it chose, despite claimant accepting employer’s choice of neurosurgeon and adopting employer’s chosen physician as her own).

Whole Foods directed Mr. Greer to two orthopedists, Dr. Waguespack and Dr. Nu-tik. When Dr. Waguespack, Whole Foods’ choice of physician, recommended surgery, Whole Foods sent Mr. Greer to a second orthopedist for another opinion. Whole Foods’ actions amount to “doctor shopping” and precisely what La. R.S. 23:1121(A) intends to prohibit. Whole Foods cannot choose a | ^doctor in the same specialty for the purpose of finding a more favorable recommendation for Whole Foods when they disagree with their initial physician’s recommendation.

Further, the purpose of Section 2711 is to provide “the claimant with possible alternates courses of treatment so that he or she can make an informed decision.” La. Admin. Code, tit. 40, pt. 1, § 2711(A). There is no indication that Mr. Greer has failed to explore his options or that Dr. Waguespack has not provided the necessary information for Mr. Greer to make an informed decision. Mr. Greer testified that while under the treatment of Dr. Lansing and since his referral to Dr. Wagues-pack, he has “done everything ... the conservative way” and his condition has not improved. Likewise, he stated he understood that surgery, as Dr. Waguespack recommended, is his next option since conservative treatment proved unsuccessful.

The trial court found that Mr. Greer was “an unrepresented injured worker when the employer sent him from doctor to doctor,” and the employer was not entitled under La. R.S. 23:1121 to send Mr. Greer to Dr. Nutik when it did not like its own choice of orthopedist’s treatment recommendation.

In addition, Mr. Greer avers that the second medical opinion was untimely. The Louisiana Supreme Court has recognized that a “failure to authorize treatment is effectively a failure to provide treatment.” Authement v. Shappert Eng’g, 02-1681, p. 8 (La.2/25/03), 840 So.2d 1181,1187. Thus, La. R.S. 23:1201(E)’s requirement that payment of medical benefits shall be paid within sixty days is | ^interpreted to also apply to the authorization of medical benefits. Id., 02-1631, p. 11, 840 So.2d at 1188.

Dr. Waguespack first indicated that Mr. Greer may be a surgery candidate as early as May 2010, which Whole Foods was informed of in July 2010. Dr. Waguespack reiterated her medical opinion in July 2010, which Whole Foods received in August 2010. In September 2010, Dr. Wag-uespack recommended surgery at the C3-4 and C4-5 levels, and possibly at the C6-7 level. Whole Foods received Dr. Wagues-pack’s September 2010 recommendation in October 2010. Thereafter on December 13, 2010, Dr. Waguespack requested authorization from Whole Foods to perform an anterior cervical surgery on Mr. Greer. After receiving the request, Whole Foods did not schedule the second medical opinion until December 20, 2010. Mr. Greer was not evaluated until January 2011. Whole Foods was notified on numerous occasions from May 2010 through September 2010 that Mr. Greer was recommended for surgery and Mr. Greer was not scheduled for a second medical opinion until January 2011; thus, Dr. Nutik’s second medical opinion to controvert Dr. Wagues-pack’s recommendation was untimely pursuant to La. R.S. 23:1201(E).

Moreover, the trial court determined that Dr. Nutik’s medical report was incomplete, and consequently, failed to create a real dispute as it related to Mr. Greer’s medical treatment as is necessary for an independent medical examination. La. R.S. 1123 states.

If any dispute arises as to the condition of the employee, or the employee’s capacity to work, the director, upon application of any |nparty, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

Dr. Waguespack recommended Mr. Greer undergo an anterior cervical fusion at three levels and possibly a fourth. Conversely, Dr. Nutik did not recommend surgical intervention and instead recommended conservative treatment. Whole Foods claims that because a dispute arose regarding the appropriate treatment for Mr. Greer an IME was necessary.

The trial court found that because Dr. Nutik’s opinion was the result of an inappropriate exam, his opinion cannot be used to create a dispute as to Mr. Greer’s condition and/or treatment. Thus, the OWC did not have authority to order an IME.

Furthermore, Dr. Nutik’s medical report was incomplete. The trial court gave less weight to Dr. Nutik’s opinion than Dr. Waguespack. The trial court noted that unlike Dr. Waguespack, Dr. Nutik did not review the MRI films. Instead, he relied on the radiologists’ reports in making his determinations, but admitted that having the films would be relevant. Because Dr. Nutik based his opinion on incomplete observations, the trial court found that there could be no real dispute as to Mr. Greer’s condition and the necessity of surgery. Thus, for the foregoing reasons we find the trial court did not err in concluding that the examination by Dr. Nutik was inappropriate, and that his opinion could not be used to create a dispute as to Mr. Greer’s condition and/or treatment.

| ^INDEPENDENT MEDICAL EXAMINATION

In addition to the reasons discussed above, the IME was unwarranted because Mr. Greer timely objected to the appointment of an IME. In March 2011, Mr. Greer was notified by the OWC that he was scheduled for an IME at Whole Foods’ request with Dr. Katz. On April 1, 2011, Mr. Greer filed pro se, a disputed claim for compensation (Form 1008), objecting to the Whole Foods’ right to such an examination. However, due to the trial court’s inaction and the lack of response, Mr. Greer subsequently attended the IME. While Whole Foods suggests that Mr. Greer’s attendance effectively waived his right to object to the IME, the trial court reasoned, “Mr. Greer was trying to navigate the workers’ compensation system without the benefit of an attorney” and was simply “cooperating” during the process. The trial court’s inaction following Mr. Greer’s timely filed objection should not bar his rights. Thus, under the circumstances presented in this case, the workers’ compensation court properly granted Mr. Greer’s motion to strike as it relates to the findings of Dr. Nutik and Dr. Katz.

NECESSITY OF SURGERY AND CAUSATION

Whole Foods asserts that the trial court erred in finding Mr. Greer is entitled to surgery. “An [injured] employee in a worker’s compensation case has the burden of establishing a causal link between the accident and the subsequent disabling condition.” Peveto v. WHC Contractors, 93-1402, 630 So.2d 689, 691 (La.1/14/94). In Merrill v. Greyhound Lines, Inc., 10-0834, p. 6-7 (La.App. 4 Cir. 6/29/11), 70 So.3d 991, 995 this Court stated:

Even if the claimant suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the accident aggravated, accelerated, or combined with the pre-existing condition to produce an injury resulting in a compensable disability. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689, 691. The claimant may be aided in meeting the foregoing burden by a presumption of causation, if he can prove that before the accident he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, and that either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the onset of the disabling symptoms. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320, 324-25 (La.1985). Once the claimant has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing condition to produce the employee’s disability. Peveto, 93-1402 at pp. 2-3,. 630 So.2d at 691.

Additionally, “the testimony of a treating physician is accorded greater weight than that of a physician who examines a patient only once or twice.” Williams v. Wal-Mart Stores, 00-0863, p. 6 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134, 1147. However, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Id.

The trial court in weighing the testimony of the medical witnesses, noted that Dr. Waguespack examined Mr. Greer on numerous occasions between September 2009 and March 2013 versus Dr. Nutik’s one time examination. Dr. Waguespack is a “fellowship trained spine surgeon” and performs cervical spine surgery, and Dr. Nutik does not. Additionally, Dr. Nutik did not review the MRI films Dr. Waguespack relied on in making her surgical recommendation. Likewise, the trial court considered Dr. Wag-uespack’s testimony in light of Mr. Greer’s testimony of complaints of pain and that, although he did not want to undergo surgery, he believed it was needed to reduce his pain and improve his function.

1MWhole Foods avers that Mr. Greer has failed to prove causation. Whole Foods contends that Mr. Greer had pre-existing conditions that were not causally related to his accident at work. While Mr. Greer admits that there is evidence of pre-exist-ing conditions, including radiculitis, instability pattern, and degenerative disk disease, the conditions were aggravated as a result of the accident. Dr. Waguespack’s findings support Mr. Greer’s contention and note the difference in MRI film taken post-injury in 2009 and the MRI film taken pre-injury in 2004. It revealed a newly formed anterolisthesis and foraminal sten-osis with a disk bulge at C6-7. Further, Dr. Nutik, although he did not recommend surgery, noted that Mr. Greer suffered a soft tissue strain that was superimposed on underlying degenerative changes. Both diagnoses suggest either aggravation of a medical condition or a combination with a preexisting medical condition to produce the disability. Accordingly, it was reasonable for the trial court to conclude that Mr. Greer’s injuries were causally related to the accident. Considering the medical evidence and testimony, the trial court did not err in finding that the surgery was necessary and causally related to the subject accident.

INDEMNITY

Whole Foods also asserts that Section 6007 of the workers’ compensation hearing rules provides that a pre-trial statement in a workers’ compensation case must include stipulations agreed to by all parties and all issues to be litigated. Whole Foods suggests that while Mr. Greer filed a pre-trial statement, he did not include the issue of calculation of average weekly wage, and thus the issue was not properly before the court.

11fiLa. R.S. 23:1317(A) provides that “[t]he workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided” and that the workers’ compensation judge “shall decide the merits of the controversy as equitably, summarily, and simply as may be.” Further, Louisiana jurisprudence is replete with instances wherein the workers’ compensation court considered the calculation of the average weekly-wage in the determination of whether the claimant was entitled to indemnity benefits. See Hargrave v. State ex rel. Dep’t of Transp. & Dev., 10-1044, p. 10-11 (La.1/19/11), 54 So.3d 1102, 1108; Ravy v. Bridge Terminal Transport, 04-0134, p. 10 (La.App. 4 Cir. 9/29/04), 883 So.2d 1139, 1146; see also Taylor v. J.C. Penney, 06-1520, p. 9 (La.App. 4 Cir. 5/23/07), 959 So.2d 549, 554-55.

In his pre-trial statement, Mr. Greer alleged “Entitlement to Indemnity Benefits” as an issue in dispute. Whole Foods also filed an amended pre-trial statement that alleged, “[w]hether the claimant is entitled to any indemnity benefits” as an issue in dispute. Whole Foods has failed to point to any law to support its contention that Mr. Greer must specifically plead “the calculation of average weekly wage” as an issue to be litigated, when both parties have stipulated to the issue of indemnity benefits. In relation to the issue of indemnity benefits, both parties submitted the same wage records, evidencing Mr. Greer’s true average weekly wage. Likewise, Whole Foods also introduced the checks it made payable to Mr. Greer in indemnity benefits.

Thus, the trial court acted reasonably and within its discretion when it ruled that indemnity benefits included indemnity benefits at the correct rate and was properly before the court. There was no prejudice to Whole Foods in raising this issue at trial because Whole Foods was aware the issue existed and was prepared to 11Baddress the issue at trial. Accordingly, we find the trial court did not err in finding the issue was properly before the court.

PENALTIES AND ATTORNEY FEES

“The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact. Factual findings are subject to the manifest error or clearly wrong standard of review.” Authement v. Shappert Eng’g, 02-1631, p. 12 (La.2/25/03), 840 So.2d 1181, 1188-89. Pursuant to La. R.S. 23:1201, penalties and attorney fees for failure to timely pay benefits shall be assessed, unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control. Brown v. Texas-LA Cartage, Inc., 98-1063, p. 5 (La.12/1/98), 721 So.2d 885, 887-88. See also La. R.S. 23:1201(F).

The parties stipulated that Mr. Greer’s average weekly wage was $718.55, resulting in a compensation of $479.03. Whole Foods presented evidence that Mr. Greer was paid benefits at a rate of $472.88 per week. Mr. Greer was underpaid weekly in the amount of $6.16. Because the indemnity benefits were not paid in full due to Whole Foods’ admitted miscalculation, the penalty was warranted pursuant to La. R.S. 23:1201(F).

Additionally, La. R.S. 23:1201(E) requires an employer to pay within sixty days from the receipt of a claim for workers’ compensation medical benefits to tender payment for the same. Here, Whole Foods received Mr. Greer’s demand for payment of medical expenses from Doctors After Hours in May 2011. Whole Foods was in receipt of the claim as it requested certified copies of the medical records and bill from Doctors After Hours in July 2011. While Whole Foods had the claim in July 2011, Whole Foods did not pay the claim until May 2012, and |17was unable to explain why it was unable to pay the claim within the sixty days required by law.

As previously discussed, the trial court properly found that Dr. Waguespack is the choice of physician for both Mr. Greer and Whole Foods; and thus, Whole Foods was not entitled to a second medical opinion. La. R.S. 23:1201(E), requiring payment of medical benefits within sixty days, has been previously interpreted to apply to the authorization of medical benefits as well. Therefore, the second medical examination was inappropriate as it was obtained more than sixty days from when Whole Foods was notified that Mr. Greer was a surgical candidate.

The trial court found that Dr. Wagues-pack recommended Mr. Greer for surgery in May 2010, and notification was sent to the insurance company. Evén with knowledge that Whole Foods’ choice of physician was recommending surgery, the Whole Foods did not authorize the request. Instead, it waited for almost seven months from Dr. Waguespack’s recommendation for surgery, and then pursued a second opinion from a doctor of its choosing in December 2010. The appointment with Dr. Nutik was not scheduled to occur for another two and a half weeks after contacting Dr. Nutik’s office. During this time, Mr. Greer’s symptoms worsened, and he continued to take medication he did not want to manage the day to day pain. Because the sixty day period was exceeded, Mr. Greer is entitled to penalties for Whole Foods’ failure to authorize surgery as determined by the trial court.

Finally, Mr. Greer is entitled to attorney fees. An award of attorney fees is within the trial court’s discretion and will not be disturbed by this Court absent manifest error. Discover Bank v. Rusher, 10-0850, p. 3 (La.App. 4 Cir. 12/8/10), |1853 So.3d 651, 653; Troth Corp. v. Deutsch, Kerrigan & Stiles, 06-0457, p. 3 (La.App. 4 Cir. 1/24/07), 951 So.2d 1162, 1165.

Whole Foods asserts that Mr. Greer is not entitled to attorney fees largely due to the improper penalty award. In awarding attorney fees, the trial court reasoned, that Whole Foods’ failure to authorize a surgery its choice of physician recommended for seven months while Mr. Greer attempted to manage his pain and sending him to a second physician for another opinion more suitable to Whole Foods “is exactly the type of behavior and indifference that penalties and attorney’s fees were designed to discourage.” Given the trial court’s vast discretion to determine whether to award attorney fees and the trial court’s written reasons in this case, we do not find the trial court abused its discretion. Accordingly, we find the trial court did not err in awarding attorney fees.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation court is affirmed.

AFFIRMED.

      . La. R.S. 23:1121(B) provides in pertinent part:
      B. (1) The employee shall have the right to select one treating physician in any field or specialty ...
      (2)(a) If the employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of treating physician.
      (b) When the employee is specifically directed to a physician by the employer or insurer, that physician may also be deemed as the employee’s choice of physician, if the employee has received written notice of his right to select one treating physician in any field or specialty, and then chooses to select the employer’s referral as his treating specialist after the initial medical examination as signified by his signature on a choice of physician form ...
      (3) Paragraph (2) of this Subsection shall not apply to other physicians to whom the employee is referred by the physician selected by the employer unless the employer or insurer has obtained the choice of physician form provided for under Subpara-graph (2)(b) separately for any such physician after the initial medical examination with that physician.


author: MADELEINE M. LANDRIEU, Judge.

text:
    David HALL v. Clarence Scott MALONE; Clarence Scott Malone d/b/a Malone Electric, et al.
    No. 2013-CA-0315.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2014.

      Michele Gaudin, Gaudin & Longoria, New Orleans, LA, for Plaintiff/Appellee.
    Paul Lawrence Billingsley, Attorney at Law, Hammond, LA, Thomas J. Eppling, Sara Peters Scurlock, Ashley E. Boyd, Staines & Eppling, Ronald Keith Bell, Me-tairie, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

Iiln this personal injury action, the defendants, Clarence Scott Malone d/b/a Malone Electric (“Mr. Malone”) and his insurer, Progressive Security Insurance Company (“Progressive”), brought a third party demand seeking indemnity from Southern Scrap Material Co., LLC (“Southern Scrap”) and SSX, LC (“SSX”). Mr. Malone and Progressive moved for summary judgment on their third party demand, which the trial court granted. Southern Scrap and SSX appeal that judgment. For the reasons that follow, we reverse the trial court’s granting of summary judgment and remand for further proceedings.

FACTS AND PROCEEDINGS BELOW

On December 22, 2007, David Hall was a guest passenger in a car that allegedly was struck by a vehicle driven by the defendant, Mr. Malone. The collision occurred on the property of Southern Scrap while Mr. Malone was completing a contract job for Southern Scrap. Mr. Hall filed this suit against Mr. Malone. The suit alleges that Mr. Hall sustained personal injuries in the accident, that Mr. Malone was solely at fault in causing the collision, and that Mr. Malone was acting in the course and scope of his employment at the time the accident occurred.

| ¡.Mr, Malone answered the petition and asserted that Mr. Juan Judy, the driver of the car in which Mr. Hall was sitting, was solely at fault in causing the accident. Mr. Malone and Progressive filed a third party demand against “SSX, LC d/b/a Southern Scrap” and Mr. Judy alleging that, pursuant to a hold harmless agreement (“the Agreement”) between them, SSX was obliged to indemnify Mr. Malone for any damages he might owe to Mr. Hall as a result of the accident.

The third party demand was later amended to name additional third party defendants: “Southern Scrap Material Company,” “Southern Scrap Recycling,” and “Southern Recycling, LLC.” (hereinafter collectively referred to as “the Southern Scrap companies”). It was subsequently amended twice more to assert that Mr. Malone was owed a defense and reimbursement of attorney’s fees and costs.

Southern Scrap and SSX filed a motion for summary judgment seeking dismissal of the third party demand. Mr. Malone and Progressive filed a counter motion for summary judgment seeking a judicial determination that indemnity was owed. The two motions were heard by the trial court on the same day. The trial found that Southern Scrap and SSX owed indemnity to Mr. Malone and Progressive. Accordingly, the court denied the Southern Scrap motion and granted the Malone motion, but reserved ruling on the issue of attorneys’ fees and failed to address costs. Southern Scrap and SSX appeal the granting of summary judgment.

lalSSUE

The sole issue on appeal is whether the trial court erred by interpreting the Agreement as providing for indemnity by Southern Scrap and SSX under the circumstances presented here. The appellants contend there are genuine issues of material fact that preclude summary judgment on that issue.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 2006-363, p. 3 (La.11/29/06), 950 So.2d 544, 547. “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). Thus, the reviewing court must determine whether there is any genuine issue of material fact and whether the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C); Cressionnie v. Liberty Mutual Ins. Co., 98-0534, p. 3 (La.App. 4 Cir. 4/8/98), 711 So.2d 364, 366.

DISCUSSION

The Agreement was executed by ’ Mr. Malone (individually and on behalf of Malone Electric Company) and SSX on April 18, 2005. Mr. Malone contends that when the Agreement was presented to him, he understood it to be applicable to all Southern Scrap locations. He further contends that if he had failed to sign the Agreement, he would have received no further work orders from the Southern Scrap group.

14Southern Scrap and SSX dispute Mr. Malone’s contentions and assert that the Agreement was only between Mr. Malone and SSX, not Mr. Malone and Southern Scrap. They further maintain that neither Southern Scrap, Southern Recycling, nor any of the other Southern Scrap companies was a party or a signatory to the Agreement and thus, none of them is bound by it. They argue that although SSX and Southern Scrap share the same parent company, they are independently owned and operated, and bear no legal relationship to each other such that an indemnity agreement signed by SSX would also bind Southern Scrap. With regard to SSX, they argue that the Agreement does not apply in this instance because the accident did not occur on the premises of SSX, but rather on the premises of Southern Scrap.

Southern Scrap and SSX thus contend that the summary judgment was improperly granted because there are genuine issues of material fact remaining as to: (1) Whether SSX can owe indemnity given that the accident occurred on the premises of Southern Scrap, not SSX; (2) Whether summary judgment on indemnity is appropriate when there is a material dispute as to the legal relationship between SSX and Southern Scrap; (3) Whether indemnity is due when the subject accident did not arise out of Mr. Malone’s activities for SSX; (4) Whether indemnity is due when the sole cause of the accident is the fault of Mr. Malone; and (5) Whether indemnity is due when, by express terms of the Agreement, Mr. Malone is responsible for his own portion of fault with respect to claims and liabilities asserted or incurred by third parties.

The Agreement states, in pertinent part: This Agreement is made by and between SCOTT MALONE, Individually and on behalf of MALONE ELECTRIC COMPANY, an Louisiana entity (hereinafter “INDEMNITOR”) and SSX, L.C., a | ^Louisiana limited liability company (hereinafter the “COMPANY”), which, as used herein is defined to mean and include the COMPANY and any Division, Subsidiary, Affiliate, Member, Stockholder, Officer, Director, Agent, and/or Employee thereof and/or of its or theirs who, for good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, who agree: COMPANY agrees to defend, indemnify and hold harmless, protect and release INDEMNITOR, its agents, assigns, employees, insurers, officers, members, stockholder, successors and underwriters from and against any and all claims, demands, causes of action and liabilities of every kind and character, regardless of whom is at fault, which are asserted by COMPANY’S own employees, agents, or other individuals or companies whose services were contracted for by COMPANY (except INDEMNITOR or its employees or contractors), arising out of or in any way related to INDEMNITOR’S activities and operations while on or about the premises of COMPANY.
With regard to Third Parties, which are defined as those individuals or entities not a party to this Agreement and not described above, COMPANY and IN-DEMNITOR shall only be responsible for their own portion of fault regarding any claims, demands, causes of action and liabilities asserted or incurred by Third Parties.

Indemnity agreements are strictly construed and the party seeking to enforce such an agreement bears the burden of proof. Robin v. Wong, 2007-0547, p. 4 (La.App. 4 Cir. 10/24/07), 971 So.2d 386, 388, writ denied, 2007-2245 (La.1/11/08), 972 So.2d 1169. Mr. Malone and Progressive bore the burden of proof on their motion for summary judgment.

It is undisputed that the only named parties/ signatories to the Agreement are Mr. Malone and SSX. Also, the Agreement expressly provides that SSX, referred to as “COMPANY,” agrees to indemnify Mr. Malone, referred to as “IN-DEMNITOR,” from claims “arising out of or in any way related to INDEMNITOR’S activities and operations while on or about the premises of COMPANY.” (Emphasis added.) Despite the language of the Agreement, however, Mr. Malone contends that the intent of the parties was to bind not only |fiSSX, but also Southern Scrap and all the “Southern Scrap” locations at which Mr. Malone performed jobs. Therefore, Mr. Malone’s burden on summary judgment was to submit evidence sufficient to prove that the Agreement also applied to Southern Scrap.

Because the Agreement expressly includes any “Division, Subsidiary, Affiliate, Member, Stockholder, Officer, Director, Agent, and/or Employee” of SSX, Mr. Malone had to demonstrate that Southern Scrap qualifies as one of those entities in relation to SSX. Specifically, Mr. Malone argues on appeal that Southern Scrap is an “affiliate” of SSX.

The term “affiliate” is not defined in the Agreement. According to the dictionary, “affiliate” means “a condition of being united, being in close connection, allied, or attached as a member or branch.” Black’s Law Dictionary (Rev. 4th Ed.) (citing Johanson v. Riverside County Select Groves, Inc., 4 Cal.App.2d 114, 40 P.2d 530, 534). An affiliate is defined as an “organization associated with another in a subordinate relationship.” The American Heritage Dictionary of the English Language (1973 Ed.) (Emphasis supplied). It is understood to be a “person or organization” with a close connection as a “member or branch” of another entity. Merriam Webster’s Collegiate Dictionary (10th Ed.). See also Hopkins v. Howard, 05-0732, pp. 8-9 (La.App. 4 Cir. 4/5/06), 930 So.2d 999, 1004-05.

Mr. Malone failed to put forth evidence demonstrating that Southern Scrap is an affiliate (or, for that matter, a member, stockholder, officer, director, agent, or employee) of SSX. His evidence consisted of invoices showing that he had done jobs at each of the various Southern Scrap companies as well as at SSX, and his |7own affidavit reiterating that he believed the Agreement with SSX also covered Southern Scrap. The language of the Agreement refutes this affidavit.

Southern Scrap submitted the deposition testimony of Chip Hunter, the president of SSX, and Randy Boudreaux, the representative of Southern Scrap. Both Mr. Hunter and Mr. Boudreaux testified in their depositions that SSX and Southern Scrap shared only a parent company, Southern Recycling. Mr. Hunter stated that there are five individual operating scrap entities which have the same parent company, including: SSX (Baton Rouge area); Southern Scrap (New Orleans area); Southern Scrap of Morgan City; Auto-Shred (Pensacola-Mobile); and Tampa Resource Recycling. Mr. Boudreaux testified that each location “managed itself,” and that whether or not an indemnity agreement was required was the decision of the particular manager. Most importantly, Mr. Hunter testified that he had signed the Agreement in question on behalf of SSX only.

This evidence submitted by Southern Scrap indicates, at the very least, the existence of a genuine issue of material fact with regard to whether any legal relationship existed between Southern Scrap and SSX such that the Agreement, signed only by SSX, would also bind Southern Scrap. In addition, the fact that the accident did not occur on the property of SSX raises a genuine issue of material fact as to whether the Agreement obligates SSX to indemnify Mr. Malone under the circumstances presented here.

Therefore, the trial court erred by granting the Malone motion for summary judgment holding that SSX and Southern Scrap are obligated to indemnify Mr. Malone and Progressive. In light of this disposition, all other issues raised by the appellants are pretermitted.

^CONCLUSION

Because we find genuine issues of material fact that preclude summary judgment, we reverse the trial court’s granting of summary judgment in favor of Mr. Malone and Progressive, and remand the matter to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Mr. Malone alleged that Mr. Judy ran into him while his vehicle was parked.

      . The third party plaintiffs asserted that the Agreement was intended to be between Mr. Malone and "all Southern Scrap entities for which he was performing services, as evidenced by work at various locations and payment by various entities.”


author: ROSEMARY LEDET, Judge. LOVE, J.,

text:
    STATE of Louisiana v. Larry ROBAIR.
    No. 2013-KA-0337.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Chief of Appeals/Supervising Attorney, Donna An-drieu, Assistant District Attorney, New Orleans, LA, Counsel for Appellee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant/Appellant/Larry Robair.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

|,This appeal arises from the adjudication and sentence of the defendant, Larry Robair, as a fourth felony offender. Mr. Robair contends that insufficient evidence was presented to support his adjudication as a fourth felony offender and that his twenty-year mandatory minimum sentence was excessive, especially given his age. Finding the district court did not err in adjudicating Mr. Robair as a fourth felony offender and imposing the mandatory minimum sentence, we affirm.

STATEMENT OF THE FACTS

The facts of the instant case are set forth in this court’s earlier opinion, State v. Robair, 09-0865, pp. 1-3 (La.App. 4 Cir. 11/12/09) (unpub.), as follows:

Patrick Clark, the victim, was homeless and living under the raised interstate on Claiborne Avenue on February 14, 2008. At that time, Clark knew who Robair was, but did not know him personally. The two men had been living under the interstate for approximately seven months, and their tents were four or five tents apart.
Clark testified that on the morning of February 14, 2008, someone brought bags of clothes, which were received by three of the men living under the interstate. Robair and Clark were amongst this number. As Robair received a bag containing women’s clothing, he asked Clark for some clothes from his bag. Clark refused to share. Robair got upset and left on his bicycle, exclaiming, “[ijt’s not over with ... ”. Robair returned about fifteen minutes later. Clark had the impression that Robair was upset, and the two men watched each other. However, Clark did not think the situation would escalate.
|2At approximately noon, some two hours later, someone brought food donations for lunch. Clark and another man got some food. When Clark returned to his tent, he saw Robair. Robair smiled, and Clark “thought nothing of it.” However, as Clark walked away, he felt Robair grab his shirt, “real tight.” He then felt himself being stabbed, but did not see it happening. Clark attempted to get away, but Robair continued stabbing. At one point, someone exclaimed, “what are you doing?” Realizing others were watching, Robair then let go and fled.
Clark had been stabbed ten or eleven times in his back and in the back of his arm. An ambulance arrived some three minutes later and took Mr. Clark to the University Hospital. He was there for three days. Treatment included surgery to drain blood from his lungs. Clark also had stitches.
While at the hospital, Clark was interviewed by Det. Lathouwers. She presented Clark with a picture of Robair and asked if he was the man who stabbed him. Clark said, “yeah.” Clark identified Robair in court as his attacker.

STATEMENT OF THE CASE

In 2008, Mr. Robair was convicted by a jury of second degree battery and sentenced to five years imprisonment. This court affirmed his conviction and sentence in State v. Robair, 09-0865 (La.App. 4 Cir. 11/12/09) (unpub.). Mr. Robair was subsequently adjudicated a fourth felony offender and his previous sentence was vacated. The district court sentenced him to twenty-five years at hard labor. On appeal, Mr. Robair’s adjudication as a fourth felony offender and sentence were vacated because the record on appeal did not contain the exhibits used to establish that he was a multiple offender; and the case was remanded. State v. Robair, 10-1484 (La.App. 4 Cir. 8/24/11) (unpub.).

On remand, Mr. Robair’s competency was questioned; hence, a lunacy commission was convened. Mr. Robair was found competent to proceed. Mr. Robair filed a response and objections to the multiple bill. During the multiple bill hearing, the State called New Orleans Police Officer Jay Jaquet and introduced certified copies of Mr. Robair’s prior convictions. In opposition, Mr. Robair Rasserted that the competency hearing revealed he is unable to read or write. It was also revealed that he has other cognitive limitations, which presented a question regarding whether he knowingly and intelligently waived his rights when he entered his prior guilty pleas. Mr. Robair further asserted that he should not be adjudicated a fourth felony offender because two of his prior convictions are for offenses that are now classified misdemeanors.

Although the district court noted Mr. Robair’s assertions, it adjudicated him a fourth felony offender and sentenced him to twenty years at hard labor. Mr. Robair then requested that the district court consider departing from the mandatory minimum sentence based on his age — fifty-four years old — and the fact that two of his prior felony convictions are for offenses that are now considered misdemeanors. Mr. Robair contended that, given his age, a twenty-year sentence would be the equivalent of a life sentence. The district court rejected Mr. Robair’s contentions. This appeal followed.

DISCUSSION

On appeal, Mr. Robair contends that insufficient evidence was presented to establish that he was a multiple offender and that his sentence was excessive. We separately address each issue.

INSUFFICIENT EVIDENCE

Mr. Robair asserts that the evidence was insufficient to establish that he is a fourth felony offender for the following three reasons: 1) he was entitled to have a jury decide whether he was a quadruple offender; 2) because his previous conviction for possession of stolen property would now be considered a misdemeanor, it did not qualify as a predicate felony for purposes of his multiple |4offender adjudication; and 3) the State failed to establish that the ten-year “cleansing period” under La. R.S. 15:529.1(C) had not lapsed.

Mr. Robair’s adjudication as a multiple offender was based on the following three predicate convictions from Orleans Parish Criminal District Court:

i. Case No. 880-627 (1988), possession of stolen property valued at $100 to $500, sentenced to eighteen months;
ii. Case No. 358-273 (1992), theft of property valued between $100 and $500, sentenced to two years;
iii. Case No. 386-425 (1996), aggravated battery, sentenced to eighty months as a multiple offender.

Review of the record reflects that Mr. Robair failed to preserve his due process argument that he was entitled to have a jury decide whether he was a multiple offender because he failed to enter a contemporaneous objection during the proceedings. State v. Juengain, 09-0425, p. 10 (La.App. 4 Cir. 1/20/10), 41 So.3d 499, 506. In contrast, review of the record reflects that Mr. Robair sufficiently preserved his due process argument that the ten year “cleansing period” under La. R.S. 15:529.1(C) had not elapsed.

This case is distinguishable from State v. Moore, 10-0314 (La.App. 4 Cir. 10/13/10), 57 So.3d 1033, 1042 (on reh’g), in which the defendant did not raise an objection to the multiple bill, either orally or in writing, before the district court. In this case, Mr. Robair did raise the issue before the district court. Although he failed to raise an objection concerning the “cleansing period” during the multiple bill | shearing, the record reflects that he filed a written response to the multiple bill. Therefore, the cleansing period issue was properly preserved for appellate review. See La. R.S. 15:529(D)(1)(b).

Mr. Robair contends that because more than ten years have elapsed between his 1997 aggravated battery conviction and his present 2008 second degree battery charge, the State was required to prove his discharge date in order to meet its burden of proving that the ten year “cleansing period” has not elapsed. He contends that without proof that the “cleansing period” has not lapsed between his most recent prior conviction and the instant offense, the State has failed to establish that he is a multiple offender of any degree.

The State has the burden of proving that the predicate convictions fall within the ten year “cleansing period” under La. R.S. 15:529.1(C). State v. Tatten, 12-0443, p. 9 (La.App. 4 Cir. 5/1/13), 116 So.3d 843, 849, writ denied, 13-1236 (La.12/2/13), 126 So.3d 498 (citing State v. Brown, 598 So.2d 565, 575 (La.App. 4 Cir.1992); and State v. Falgout, 575 So.2d 456, 457 (La.App. 4 Cir.1991)). The “cleansing period” commences from the date the defendant is “actually discharged [ fifrom state custody and supervision.” Tatten, supra (citing State v. Anderson, 349 So.2d 311, 314 (La.1977); and State v. Thomas, 04-1341, p. 15 (La.App. 5 Cir. 5/31/05), 904 So.2d 896, 906).

The Louisiana Supreme Court has held that “the expiration of a previous sentence is determined by the date of the actual discharge from supervision by the Department of Corrections.” Tatten, supra (citing State ex rel. Wilson v. Maggio, 422 So.2d 1121, 1123 (La.1982); and Anderson, supra.). The Supreme Court has further held that “ ‘[discharge from supervision can take place earlier than the theoretical date on which the initial sentence would have terminated, because of a pardon, commutation, or good time credit. Or it can take place later because of parole revocation.’ ” Tatten, supra (quoting State ex rel. Wilson v. Maggio, 422 So.2d at 1123).

In State v. Turner, 365 So.2d 1352 (La.1978), the Louisiana Supreme Court addressed a defendant’s claim that the evidence presented at his multiple offender hearing failed to establish the date of discharge from his prior conviction and thus was insufficient. Rejecting this claim, the Supreme Court reasoned that “while the record did not affirmatively establish that the time period had or had not elapsed, the showing indicates that more probably than not, the cleansing period had not elapsed between the crimes.” Turner, 365 So.2d at 1355.

Applying these principles, the record in this case reflects that in July 1997 Mr. Robair was sentenced to eighty months at hard labor for aggravated battery. Although the State suggests that the cleansing period did not begin to run until March 2004, Mr. Robair argues that he was given credit for time served—eleven months—and that his discharge date could have been earlier than the theoretical date due to pardon, commutation, or good time credit. In brief, Mr. Robair 17suggests that he could have served as few as twenty months. Even calculating his release date as twenty months from the date of his arrest in August 1996, Mr. Robair still fails to establish that the ten year cleansing period has elapsed. The ten year period would not have elapsed until April 2008; the instant offense was committed before that date—in February 2008. We thus find Mr. Robair’s argument regarding the “cleansing period” lacks merit.

Mr. Robair next contends that that because his conviction for possession of stolen property would now be considered a misdemeanor, the conviction should not have been used as a predicate offense to increase his sentence pursuant to La. R.S. 15:529.1. The district court noted the change in the law, but concluded that the change had no effect because when Mr. Robair pled guilty, the crime was a felony. This Court noted in State v. Buhcannon, 12-1223, p. 7 (La.App. 4 Cir. 6/12/03), 119 So.3d 853, 858, that “the Louisiana Supreme Court has repeatedly rejected the argument that a felony which has been reduced to a misdemeanor cannot serve to enhance a sentence.” Id. Therefore, Mr. Robair’s contention lacks merit.

Summarizing, none of Mr. Robair’s contentions regarding the insufficiency of the evidence to establish his status as a fourth offender has merit. Thus, the district court did not err in adjudicating him as a fourth felony offender.

EXCESSIVE SENTENCE

Mr. Robair contends that his twenty-year sentence is excessive. The district court found Mr. Robair to be a fourth offender and imposed the minimum sentence |sof twenty-years. Mr. Robair’s counsel then asserted that because of Mr. Robair’s age and because the crimes underlying two of his prior convictions would now be misdemeanors, the district court should consider the twenty-year sentence excessive under State v. Dorthey, 628 So.2d 1276 (La.1993). Therefore, defense counsel implicitly requested that the district court impose a lesser sentence. However, no motion to reconsider the sentence was filed.

This court has found that an objection lodged after sentencing was sufficient to preserve the claim of constitutional excessiveness. State v. Miller, 00-0218, p. 8 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 111. Given defense counsel’s argument to the district court before sentencing coupled with the district court’s acknowledgment of defense counsel’s argument, we find that the issue of the excessiveness of the sentence was preserved for review.

As this court noted in State v. Phillips, 10-0582, pp. 6-7 (La.App. 4 Cir. 2/17/11), 61 So.3d 130, 134-35, the standard for review of a claim that a mandatory sentence imposed under La. R.S. 15:529.1 is excessive is as follows:

In State v. Rice, 2001-0215, p. 5-6, (La.App. 4 Cir. 1/16/02), 807 So.2d 350, 354, this court reviewed the nature of the habitual felony offender sentencing scheme and the standard for departing from it:
Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. Johnson, 97-1906, pp. 5-6, 709 So.2d at 675; see also State v. Young, 94-1636, p. 5 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 527. There must be substantial evidence to rebut the presumption of constitutionality. State v. Francis, 96-2389, p. 7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must show by clear and convincing evidence that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343; Johnson, 97-1906, p. 8, 709 So.2d at 677. “Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” Id.

Mr. Robair was convicted of second degree battery. Pursuant to La. R.S. 15:529.1, as a fourth felony offender, Mr. Robair was subject to a sentence of no less than twenty years and no more than his natural life. Mr. Robair contends that his age supports the conclusion that his sentence is excessive. Mr. Robair avers that a twenty-year sentence presents a substantial hardship because, given his age, it is tantamount to a life sentence. He also asserts that because of his age, he is unlikely to reoffend. This argument lacks merit. Mr. Robair was previously convicted of three counts of aggravated battery with a knife and hammer (Case No. 386-425) and the victim of the instant offense was stabbed. Accordingly, Mr. Robair’s criminal history contradicts his assertion that his age makes him unlikely to reof-fend.

Mr. Robair’s prior criminal history reflects that he was initially charged with armed robbery as well as possession of stolen property. The bill of information reflects that Mr. Robair was charged with being in possession of a stolen purse. Accordingly, the offense was not a property crime, as the arrest register reflects that more than the possession of stolen property was an issue.

| inMr. Robair contends that two of the previous convictions constitute non-violent crimes. However, “the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses.” State v. Lindsey, 99-3256, 99-3302, p. 5 (La.10/17/00), 770 So.2d 339, 343.

Mr. Robair also stresses that the district court judge failed to provide reasons for imposing the twenty-year sentence. Although several years transpired between the date of the trial and the sentencing, the district court judge acknowledged during sentencing that he still remembered the facts of the case. Moreover, as this Court noted in State v. Jefferson, 04-1960, p. 37 (La.App. 4 Cir. 12/21/05), 922 So.2d 577, 603 (quoting State v. Green, 99-2847, p. 8 (La.App. 4 Cir. 11/29/00), 779 So.2d 835, 840), “ ‘it is an exercise in futility for the district court to enumerate its reasons for sentencing’ ” when the statute provides for a mandatory sentence.

The jurisprudence has recognized that “ ‘[departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.’ ” Phillips, 10-0582 at p. 7, 61 So.3d at 135. This is not such a rare situation. Thus, the district court did not err in imposing the minimum mandatory sentence of twenty years.

\UDECREE

For the foregoing reasons, the district court’s adjudication of the defendant as a fourth felony offender and its imposition of a twenty year sentence are affirmed.

AFFIRMED.

LOVE, J., Concurs in Part and Dissents in Part and Assigns Reasons.

LOVE, J.,

Concurs in Part and Dissents in Part and Assigns Reasons.

hi respectfully concur in the results. However, I write separately to dissent from the discussion of whether the “cleansing period” pursuant to La. R.S. 15:529.1(C) had lapsed because Mr. Robair did not adequately preserve his right to appeal the issue.

The majority addresses Mr. Robair’s assertions on appeal regarding the discharge date for his third predicate offense. However, “this Court has ... held that the lack of an objection to the proof of a discharge date precludes review.” State v. Randall, 10-0027, p. 10 (La.App. 4 Cir. 10/27/10), 51 So.3d 799, 806.

A docket master entry reflects that on July 9, 2012, Mr. Robair filed a response and objections to the multiple bill. However, these alleged documents are not contained in the record. Therefore, I find the present case similar to State v. Moore, 10-0314, p. 11 (La.App. 4 Cir. 10/13/10), 57 So.3d 1033, 1042, on reh’g, (La.App. 4 Cir. 1/26/11), writ denied, 11-0404 (La.9/2/11), 68 So.3d 525, in that, while the record contains a docket master entry allegedly depicting a filing in response to the multiple bill, this Court has an incomplete record for review. The issue “may be raised in an application for post-conviction relief.” Id. Therefore, I would affirm Mr. Robair’s conviction and sentence without addressing the “cleansing period.”

      . Mr. Robair was initially charged with theft of property having value of $536.46.

      . Regardless, the jurisprudence has held that a defendant is not entitled to a jury trial in connection with a multiple offender proceeding under La. R.S. 15:529.1. State v. Tatten, 12-0443, p. 5 (La.App. 4 Cir. 5/1/13), 116 So.3d 843, 849-50, writ denied, 13-1236 (La.12/2/13), 126 So.3d 498 (citing State v. Landfair, 10-1693, pp. 5-6 (La.App. 4 Cir. 7/20/11), 70 So.3d 1061, 1065-66) (collecting authority).

      . The docket master states that on July 9, 2012, the clerk’s office received a response and objection to the habitual offender bill of information pursuant to La. R.S. 15:529.1.

      . La. R.S. 15:529.1(D)(l)(b) provides:
      Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction alleged in the information was obtained in violation of the constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

      . Mr. Robair was initially charged with theft of property with a value over five hundred dollars, but did not include this offense in his argument, even though he pled guilty to the lesser included offense of theft of property having a value of between $100 and $500.

      . Mr. Robair also has a prior conviction for possession of a firearm by a convicted felon in Case No. 281-716.