author: SAUNDERS, Judge. SAUNDERS, J., AMY, J.,

text:
    Lester RACCA v. ACME TRUCK LINES, INC.
    No. 12-1319.
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 2013.

      Michael B. Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant, Lester Racca.
    Skylar J. Comeaux, Robicheaux & Collins, Lafayette, LA, for Defendant/Appel-lee, Acme Truck Lines, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   SAUNDERS, Judge.

11 This is a workers’ compensation case where a claimant was injured in a motor vehicle accident while in the course and scope of his employment with a truck-driving company. The parties could not agree on the claimant’s average weekly wage, and the employer also contended that the claimant had violated La.R.S. 23:1208 by failing to tell his treating physician that he was not only capable of working, but that he was actually working.

The Workers’ Compensation Judge (WCJ) found, inter alia, that the claimant’s average weekly wage was $210.53, that the claimant had violated La.R.S. 23:1208, that the claimant was capable of earning 90% of his pre-injury wages, and that claimant was entitled to $8,000.00 in attorney’s fees.

FACTS AND PROCEDURAL HISTORY:

Mr. Lester Racca, Sr. (Racca) was employed by Acme Truck Lines, Inc. (Acme) as a driver on a piecework basis. Racca entered into a lease agreement with Acme wherein he would be paid rental fees for the use of his truck and wages as a driver. On November 19, 2005, Racca was involved in an automobile accident while in the course and scope of his employment with Acme. He sustained a back injury as a result of the accident, which required surgery. Racca’s claim for workers’ compensation benefits was filed on March 7, 2006.

Trial began on February 19, 2008, and was continued until April 22, 2008. The trial was completed on April 8, 2009. The oral ruling was made in February 2012.

The WCJ found that Racca was entitled to temporary total disability benefits of $140.35 per week from November 26, 2005, through November 30, 2006, and $316.66 per month in supplemental earnings benefits from December 1, 2006, until March 21, 2007, subject to credits for post-accident wages paid of $932.57 and all [.¿indemnity benefits paid. Further, the WCJ found that Acme owed Racca penalties of $7,450.00 and attorney’s fees of $8,000.00. Finally, the WCJ found that Racca was in violation of La.R.S. 23:1208 no later than March 21, 2007, and, thus, forfeited any benefits beyond that date. The WCJ also ruled that each party was to pay its own costs.

Racca filed this appeal. He is alleging seven assignments of error.

ASSIGNMENTS OF ERROR:

1. The WCJ erred in its calculation of Racca’s average weekly wage and workers’ compensation indemnity rate.

2. The WCJ erred in failing to award a penalty for underpayment of indemnity benefits and for termination of benefits.

3. It was error for the WCJ to find that Racca violated La.R.S. 23:1208.

4. The WCJ erred in failing to allow the police report into evidence.

5. It was error for the WCJ to limit the attorney fee award to $8,000.00.

6. The WCJ erred in finding that Racca was capable of earning ninety percent of his wages.

7. Racca’s costs and expenses, along with legal interest on penalties and attorney fees, should have been awarded in the judgment.

ASSIGNMENT OF ERROR NUMBER ONE:

In Racca’s first assignment of error, he contends that the WCJ erred in its calculation of his average weekly wage and, thus, his workers’ compensation indemnity rate. We find merit to this contention.

“Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556.

If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of |sdays worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.
La.R.S. 23:1021(12)(d).

Here, the WCJ used Defendant’s Exhibit # 4 to determine Racca’s gross earnings in her calculation of his average weekly wage. Using Defendant’s Exhibit # 4, the WCJ found that Racca’s gross earnings were $4,428.96 for the twenty-six week period immediately prior to the accident. Racca asserts in brief that there were two days that he earned wages that should have been included in the WCJ’s calculations, November 7, 2005, and November 13, 2005.

The WCJ, in her reasons for ruling, addressed these two dates, stating:

The Claimant relies upon the W2 form, the Employer’s Exhibit # 24, but the attachments to the W2 form show paychecks issued after the week of the accident. One of those was for the week ending November 30th for wages of One Hundred Thirty-Six Dollars and Seventy-Nine Cents, and one was for the week ending December 7th for wages of Seven Hundred Ninety-Five Dollars and Seventy-Eight Cents. Those were included in the W2[,] but would not be included in the wage calculation^] as they were [post-accident.] So the W2 is not the proper evidence to rely upon.

This reasoning by the WCJ is in error. Our review of Defendant’s Exhibit #24 indicates that while the WCJ was correct in stating that the checks were issued post-accident, they were for work Racca performed prior to the accident. The check issued on November 30, 2005, was in payment for an invoice dated November 7, 2005, a date prior to the accident. Likewise, the check issued December 7, 2005, was for an invoice dated November 13, 2005. Thus, according to La.R.S. 23:1021(12)(d), these two amounts should have been included in the average weekly wage calculation.

| ¿Accordingly, we vacate the portion of the WCJ’s judgment finding that Racca’s average weekly wage is $210.31. As such, we must determine whether to remand the case for further proceedings or conduct a de novo review of the record to establish Racca’s average weekly wage.

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” La.Code Civ.P. art. 2164. The Louisiana Supreme Court, in Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163, 165-66 (1975) (citations and footnote omitted), stated the following:

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

Here, neither Racca nor Acme asserts that there is evidence outstanding that has any bearing on Racca’s average weekly wage. Further, neither asserts that the record before us is not complete. Thus, we will conduct a de novo review of the record to determine Racca’s average weekly wage.

Racca asserts that his proper average weekly wage should not be based on his W-2 form, Defendant’s Exhibit #24, because all of the payments made to him were underpaid under his contract with Acme. Rather, Racca contends that we should enforce the contract, as written, between Racca and Acme to compute Rac-ca’s average weekly wage.

Is Acme contends that such a determination by this court as to whether it abided by the contract provisions in paying Racca is not proper given that such enforcement of a contract is outside the subject matter jurisdiction of the workers’ compensation courts. Acme correctly points out that La.R.S. 23:1310.3(F) generally governs the subject matter jurisdiction of our workers’ compensation courts. It states:

Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter.

La.R.S. 23:1S10.0(F).

Racca counters that the interpretation and application of the contract between he and Acme is part of the WCJ’s duty in determining his average weekly wage. We agree with Racca. It is clear that the interpretation and application of an employment agreement as to a claimant’s pay arises out of the workers’ compensation statutes that authorize a WCJ to determine a claimant’s average weekly wage.

The contract between Racca and Acme pertaining to driver compensation, Defendant Exhibit # 25, states:

Your rate of compensation shall be as follows:

25% Of “Net Transportation Charge” is defined as Gross Revenues invoiced by Acme in connection with the operation and/or use of the Leased Equipment for transporting, stopovers, and/or detention of shipments divided by a factor as stated in the Lease Addendum — (Ex-hibit6 “A” for the vehicle being driven. Gross revenues will not include any amounts invoiced by Acme for fuel adjustments or any amounts invoiced by Acme for non-leased equipment, permits, tolls, accessorial charges, collection fees on Collect On Delivery (COD) shipments, extra driver and labor/swamper charges.

The Lease Addendum, Defendant’s Exhibit # 26, states:

“NET TRANSPORTATION CHARGE” is defined as Gross Revenues invoiced by Acme in connection with the operation and/or use of the Leased Equipment for transporting, stopovers, and/or detention of shipments divided by a factor of 1.048. Gross revenues will not include any amounts invoiced by Acme for fuel adjustments or any amounts invoiced by Acme for non-leased equipment, permits, tolls, acces-sorial charges, collection fees on Collect On Delivery (COD) shipments, extra driver and labor/swamper charges.

Racca argues that the W-2 forms, Defendant’s Exhibit # 24, should not be used to calculate his average weekly wage because he was underpaid according to the plain language of his contract. For example, Racca’s wages for the week ending November 30, 2005, were $795.78. According to Racca, however, if one is to perform the calculations under the plain language of the contract, he should have been paid $1,039.14. He reaches this figure by taking the gross revenues of the truck for that week, $4,356.06, dividing it by 1.048 for a quotient of $4,156.55, and then multiplying $4,156.55 by 25% for a product of $1,039.14.

However, Racca’s argument for these calculations disregards the language in the contract, stating, “[gjross revenues will not include any amounts invoiced by Acme for fuel adjustments or any amounts invoiced by Acme for non-leased equipment, permits, tolls, accessorial charges, collection fees on Collect On Delivery (COD) shipments, extra driver and labor/swamper charges.” When looking at Defendant’s Exhibit # 22, it is clear that Acme based Racca’s pay on gross revenues after subtracting those fees indicated in the contract. For example, in the week alluded to by Racca ending on November 30, 2005, the gross revenues of the truck were $4,356.06. After subtracting those fees indicated in the contract, |7the net amount is $3,183.10. Multiplying $3,183.10 by 25% gives one a product of $795.78, exactly what Racca was paid.

Therefore, given the plain language of the contract, we find that Defendant’s Exhibit # 24, Racca’s W-2 form, is the best source to determine his average weekly wage. Louisiana Revised Statutes 23:1021(12) (d) states that Racca’s average weekly wage should be determined by taking “his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.”

Here, according to Racca’s W-2 form, his gross earnings from Acme for the relevant period were $5,361.53. According to Defendant’s Exhibit #24, Racca worked sixty-nine days prior to the date of the accident, November 19, 2005. Thus, we divide $5,361.53 by sixty-nine to obtain a quotient of $77.70. This number is then multiplied by the average number of days worked by Racca per week. Racca worked for Acme for twenty-one weeks. We next take the number of days worked, sixty-nine, and divide it by twenty-one (21) to determine that Racca worked an average of 3.29 days per week. Finally, when multiplying $7.70 by 3.29 we get Racca’s average weekly wage of $255.63.

In summation, we find that the WCJ erred in calculating Racca’s average weekly wage. Above, we vacated the WCJ’s finding that Racca’s average weekly wage was $210.53. After a de novo review of the record, we render judgment finding that Racca’s average weekly wage is $255.63.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Racca proposes that the WCJ erred in fading to award penalties for underpayment of indemnity benefits and for termination of benefits. We do not agree.

|sA WCJ has broad discretion in awarding penalties and attorney fees and that determination, in the absence of manifest error, should not be disturbed. Gradney v. La. Commercial Laundry, 09-1465 (La.App. 3 Cir. 5/12/10), 38 So.3d 1115. Here, according to our finding in Assignment of Error Number One, Racca’s average weekly wage is $255.63. Acme paid Racca based on an average weekly wage of $260.61. Therefore, Acme was overpaying Racca, and it is clearly not subject to a penalty for underpayment of wage benefits.

Additionally, Racca contends that his benefits were terminated improperly. When addressing this issue, the WCJ, in her reasons for ruling, stated, “I do think the evidence supports a finding that [Rac-ca] was able to earn ninety percent or more of his pre-injury wage at the time benefits were terminated. Therefore, I do not assess a penalty or attorney’s fee for that termination of benefits.”

The WCJ based her findings on a finding that Racca was not credible regarding his ability to work. Deference must be given to a factfinder’s credibility determinations “for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Wackenhut Corrs. Corp. v. Bradley, 96-796, p. 4 (La.App. 3 Cir. 12/26/96), 685 So.2d 661, 668 (quoting Rosell v. ESCO, 549 So.2d 840 (La.1989)). Here, the WCJ’s credibility determination is reasonable. Thus, we will defer to her determination regarding Racca’s credibility and find that the WCJ did not commit a manifest error in denying Racca penalties for wrongful termination of benefits.

ASSIGNMENT OF ERROR NUMBER THREE:

Next, Racca contends that it was error for the WCJ to find that he violated La.R.S. 23:1208. We find no merit to this contention.

Louisiana Revised Statutes 28:1208 states, in pertinent part:

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

This court, in Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (La.App. 3 Cir. 6/21/06), 934 So.2d 239, 243-44, stated the following:

The determination by a WCJ as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of faet[ ] and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. However, we must keep in mind that La.R.S. 23:1208(E) is penal in nature. Any statute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.
[Louisiana Revised Statutes] 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions.
Concerning the standard of appellate review of a forfeiture claim, the court in Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858 So.2d 425 (citations omitted), stated:
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by 110the manifest error standard. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous.
Phillips v. Diocese of Lafayette, 869 So.2d at 316-17, (quoting in part Flintroy v. Scott Cummins Salvage, 36,857, p. 12 (La.App. 2 Cir. 3/10/03), 839 So.2d 1231, 1238, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093 (citations omitted))

In the case before us, the WCJ found that Racca told Dr. David Muldowny that he could not or was not working, when, in fact, he was working. The WCJ also found that Racca told Dr. Muldowny that he was not working for the purpose of continuing to receive benefits.

Racca testified at trial that he knew he told Dr. Muldowny that he was working at his last visit prior to trial. However, he could not remember if he told Dr. Muldow-ny if he was working before then. In Dr. Muldowny’s records, on March 21, 2007, June 20, 2007, August 31, 2007, and October 10, 2007, it states that Racca “presently is not working.” Specifically, in Dr. Muldowny’s hand written notes from August 31, 2007, and October 10, 2007, he states that Racca is “not working.”

It is clear from the record and Racca’s own testimony that he was working at the Green Frog Lounge during the dates listed in the paragraph above. It is also clear that Racca was very much aware of how and why he could receive benefits despite a vague recollection of other matters.

Moreover, the record contains the testimony of Ms. Clara Breaux. She testified that Racca would perform tasks at the Green Frog Lounge such as “take the beer from the floor, and he’d put it in the stock room.... Then, he would take it from there and put it in the beer box, bend over and put it in the beer box, pick the boxes up, cases of beer.” Further, according to Breaux, Racca would work 11,twelve hours straight and perform heavy lifting while showing no signs of discomfort. Finally, according to Breaux, Racca would comment on his case that he would receive a “big settlement.”

Given the status of the record, we find sufficient evidence to uphold the WCJ’s decision to terminate Racca’s benefits. We cannot say that the WCJ was manifestly erroneous or clearly wrong.

ASSIGNMENT OF ERROR NUMBER FOUR:

In his fourth assignment of error, Racca avers that the WCJ erred in failing to allow the police report into evidence. We find that any such error would be harmless.

Racca contends that the police report should have been allowed into evidence to impeach Ms. Breaux’s testimony. Breaux candidly stated in her testimony that she was angry with Racca because he fired her and did not allow her to attend her family’s benefit that was hosted by the Green Frog Lounge. Thus, Racca’s purpose for submitting the police report, to show potential bias on Breaux’s part, is cumulative to that which was revealed by Breaux in her own testimony. Thus, we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NUMBER FIVE:

Racca’s fifth assignment of error raises the issue of whether it was error for the WCJ to limit the attorney fee award to $8,000.00. We find that the WCJ erred in limiting this attorney’s fee when she stated, “I award $8,000.00 in attorney’s fees for the items for which claimant prevailed, together with cost of court and interest as provided by law.”

Our supreme court, in McCarroll v. Airport Shuttle, Inc., 00-1123, pp. 9-10 (La.11/28/00), 773 So.2d 694, 700 stated:

|12In our determination of the respective rights of the employee and the attorney to the statutory attorney fees, a persuasive factor is the methodology used to calculate the amount of the statutory attorney fees. The only limitation on the amount is the reasonableness of the fee awarded by the judge. Cain [v. Employers Cas. Co., 236 La. 1085, 110 So.2d 108 (1959) ]. The amount awarded rests within the discretion of the workers’ compensation judge, as long as that amount is supported by the record. Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case. H. Alston Johnson, III, [Louisiana Civil Law Treatise: WoRkers’ Compensation Law and Practice] § 389 [(3rd ed.1994)]. The amount awarded is intended to provide full recovery, without statutory limitation, for attorney’s services and expenses in connection with the litigation. If the attorney were allowed to collect the contractual attorney fees in addition to the full compensation awarded in the statutory attorney fees, the attorney would get double recovery (to the extent of the limited contractual fee) for his services, at the expense of his client.
We therefore conclude that the statutory attorney fees, awarded to the employee in cases of arbitrary behavior of the employer or the insurer, were intended to benefit the employee, who would otherwise have to pay the contractual attorney fees out of his or her benefits recovered in the litigation, and were not intended to provide additional fees to the employee’s attorney, who received the amount of the statutory attorney fees as full compensation for legal services in the litigation.

Given our supreme court’s directive in McCarroll, we find that the WCJ erred in awarding statutory attorney fees solely for the issues where penalties were awarded. However, we do not find that Racca’s counsel is entitled to an attorney fee award of the full amount evidenced by the affidavit he submitted. The record contains an affidavit from Racca’s counsel wherein he contends to have worked 147 hours at $225.00 per hour for a total of $33,075.00.

Acme does not dispute the amount of time that Racca’s counsel claims to have worked toward the case, nor does this court. However, in applying the factors set forth in McCarroll, we amend the judgment of the WCJ to increase the attorney fee award from $8,000.00 to $15,000.00.

| j ..¡Further, Racca requests additional attorney’s fees for work done on appeal. We deny this request.

Racca is the appellant in this case and is not defending a judgment, but seeking a new judgment. We do not grant him any additional relief on appeal that would have required an award of attorney’s fees had the relief been granted at the trial level. Furthermore, as noted in Nitcher v. Northshore Regional Medical Center, 11-1761, p. 19 (La.App. 1 Cir. 5/2/12), 92 So.3d 1001, 1014, writ denied, 12-1230 (La.9/21/12), 98 So.3d 342:

[A]n increase in attorney fees generally should be granted when a party who was awarded attorney fees in the trial court is forced to and successfully defends against an appeal. Bergeron v. Watkins, 98-0717 (La.App 1st Cir. 3/2/99), 731 So.2d 399, 405. Conversely, in this case, rather than being forced to defend against an employer’s unsuccessful appeal, Nitcher was the party who brought this appeal. Moreover, she has been only partially successful on appeal. Consequently, we do not believe Nitcher is entitled to additional attorney fees.

That being the case, under the facts of this case, we find that Racca is not entitled to an award of attorney fees for work performed on appeal.

ASSIGNMENT OF ERROR NUMBER SIX:

Racca’s sixth assignment of error is that the WCJ erred in finding that he was capable of earning ninety percent of his wages. We find no merit to this assignment of error.

“Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review.” Banks, 696 So.2d at 556. A claimant is entitled to Supplemental Earnings Benefits (SEB) under La.R.S. 23:1221(3)(a)(i) “[f]or injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury[.]” Our supreme court, in Daigle v. Sherwin-Williams. Co., 545 So.2d 1005, 1006-09 (La.1989) (footnotes omitted), stated:

| u“The threshold prerequisite to the recovery of supplemental earnings benefits, as set forth in subparagraph (3)(a) is that the employee’s injury result in his ‘inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury.’ ” Payne v. Country Pride Foods, Ltd., 525 So.2d 106, 109 (La.App. 3d Cir.1988). The injured employee thus bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount....
Once the plaintiff has met his initial burden of proving entitlement to supplemental earnings benefits by establishing his job-related disability, the amount of such benefits must be calculated. [Louisiana Revised Statutes] 23:1221(3)(a) provides that the benefits are “sixty-six and two-thirds percent of the difference between the average monthly wages at the time of injury and average monthly wages earned or average monthly wages the employee is able to earn.” The next step in the analysis requires an examination of what the employee is earning or is able to earn. The statute further explains this analysis in [La.R.S. 23:1221](3)(e)(i). The most logical interpretation of this provision is that the employer, if he wishes to contend that the employee is earning less than he is able to earn, bears the burden of proving that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region.

Racca’s argument on this assignment is that the WCJ used language not associated with the proper legal standard, more probable than not, to find that he was not entitled to SEBs when she used the words “possibly” and “reasonable possibility” that he could earn 90% of his pre-injury wage. However, given that Racca had never “met his initial burden of proving entitlement to SEB,” it was incumbent upon him to show that he was entitled to SEBs. It is clear that the WCJ found that he failed to carry that burden, and the record before us supports that finding. Moreover, we have already affirmed the WCJ’s finding that Racca forfeited his workers’ compensation benefits under La.R.S. 23:1208. Thus, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER SEVEN:

| |SIn his final assignment of error, Racca asserts that his costs and expenses, along with legal interest on penalties and attorney fees, should have been awarded in the WCJ’s judgment. We do not agree.

Courts are given great discretion in the taxing of court costs and may assess those costs in any manner it deems equitable. La.Code Civ.P. art.1920. The assessment of court costs is reviewed pursuant to an abuse of discretion. Trahan v. Asphalt Assocs., Inc., 01-311 (La.App. 3 Cir. 10/17/01), 800 So.2d 18.

Here, the WCJ found that each of the parties should bear their own costs. Given that Acme was slightly overpaying Racca’s indemnity benefits and Racca was found to be in violation of La.R.S. 23:1208, we find no abuse by the WCJ in ruling that each party was to bear their own costs.

CONCLUSION:

Lester Racca, Sr. raised seven assignments of error. We found credence in two of the seven assignments. First, we found that the WCJ erred in calculating Racca’s average weekly wage. After having found the record complete and ripe for adjudication, we rendered judgment finding that Racca’s average weekly wage is $255.63 versus $210.53 as found by the WCJ. We also found that the WCJ erred in awarding Racca attorney’s fees only for those issues where Acme Truck Lines, Inc. was penalized for failing to follow the workers’ compensation statutes. Thus, we increased Racca’s attorney’s fee award from $8,000.00 to $15,000.00. Additionally, we denied Racca’s request for attorney’s fees for work done on appeal given he filed this appeal seeking a new judgment and largely failed to do so. Finally, we found no merit to any of the other issues raised by Racca. Each party is to pay its own costs incurred in these proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

SAUNDERS, J., dissents and assigns reasons.

AMY, J., concurs in part, dissents in part, and assigns reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

hThe majority opinion, as written, denied Racca’s request for additional attorney’s fees for work done on appeal. Further, it had each party pay its own costs.

I would both grant Racca’s request for attorney’s fees for work done on appeal and assess Acme Truck Lines, Inc. with all costs of these proceedings based upon McCarroll, 773 So.2d 694. There, our supreme court stated, “[t]he amount awarded [in attorney’s fees] is intended to provide full recovery, without statutory limitation, for attorney’s services and expenses in connection with the litigation.” Id. at 700.

In my view, an award of attorney’s fees for work done on appeal and assessment of all costs are necessary to bestow full recovery for services in connection with the litigation. Therefore, I would award Rac-ca attorney’s fees for work done on appeal and assess all costs of this proceeding to Acme Truck Lines, Inc. Accordingly, I respectfully dissent.

AMY, J.,

concurring in part and dissenting in part.

hi respectfully dissent from the majority opinion’s determination to increase the award of attorney fees for work performed at the trial level. In my opinion, the workers’ compensation judge correctly tailored the attorney fee award to those items on which the penalties were awarded.

Here, the claimant seeks full attorney fees incurred in pursuit of his claim, even those incurred in pursuit of aspects of the claim found to be meritless. In support of this argument, the claimant cites McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694, 700 and its statement that “[t]he amount awarded is intended to provide full recovery, without statutory limitation, for attorney’s services and expenses in connection with the litigation.” In my opinion, however, the statement relied upon is inapplicable as urged given the starkly differing backgrounds of McCarroll and the present matter.

In this case, the claimant seeks attorney fees for aspects of his litigation on which he was unsuccessful. In McCarroll, 773 So.2d 694, however, the supreme court addressed whether a claimant’s attorney could recover both statutory attorney fees and those arising from the attorney’s contract with the claimant. The supreme court denied that recovery as duplicative. It was only within that context that the supreme court remarked upon the “full recovery” due a claimant. Accordingly, I do not rely on McCarroll for the general proposition that a claimant’s attorney receives litigation expenses related to aspects of the case on which a claimant was | gunsuccessful. While the attorney fees awarded in McCarroll did, in fact, appear to be for the entirety of the litigation, the McCarroll claim involved an employer’s full denial of benefits; such a situation is not present in this case.

In this case, the claimant was unsuccessful on a large part of his claim and was awarded only a portion of the penalties sought. Thus, I find that the figure awarded by the workers’ compensation judge is reasonable and appropriately tied to those aspects of the award arising under La.R.S. 23:1201. Accordingly, I would affirm that award.

For these reasons, I dissent from the majority’s award of additional attorney fees for work performed at the trial level. I concur in the remainder of the majority decision.


source: Caselaw Access Project

author: AMY, Judge. SAUNDERS, J.,

license: Public Domain

text:
    Evelyn HONORE, et ux. v. FAMILY DOLLAR STORES OF LOUISIANA, INC., et al.
    No. 13-93.
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 2013.

      Anthony C. Dupre, Daniel B. Barzare, Ville Platte, LA, for Plaintiffs/Appellants, Evelyn Honoré, Darren Honoré.
    A. Gerard Caswell, Eunice, LA, for Defendants/Appellees, Amy Shopping Center, Inc., Wilford Arnaud.
    Donald R. Richard, Jr., Eunice, LA, for Defendant/Appellee, Family Dollar Stores of Louisiana, Inc.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

| )The plaintiffs filed suit for damages related to a fall in a shopping center’s parking lot. The plaintiffs filed suit under negligence and strict liability causes of action against the shopping center as well as one of its commercial tenants. The trial court entered summary judgment in favor of the tenant, finding that it owed no duty with regard to the condition of the shopping center’s parking lot. The plaintiffs appeal. For the following reasons, we affirm.

Factual and Procedural Background

Evelyn Honoré and her husband, Darren Honoré, allege that Mrs. Honoré sustained injury when she stepped in a hole in the parking lot of Amy Shopping Center, Inc. after exiting her vehicle. The record indicates that Mrs. Honoré was visiting the shopping center in order to enter Family Dollar Stores of Louisiana, Inc., a shopping center tenant. Claiming damages from the fall, the plaintiffs instituted this matter against the shopping center and its sole shareholder. The plaintiffs advanced negligence and strict liability theories of recovery related to the condition of the parking lot. The plaintiffs also named Family Dollar as a defendant and asserted that the store should have taken measures to remedy the condition of the parking lot or to warn its customers of the defective condition.

Family Dollar denied responsibility for the condition of the shopping center’s parking lot and asserted that, as a tenant, it only had a right to use the common parking area shared with other tenants and that it did not have control over the shopping center’s parking lot so as to require it to make repairs. Family Dollar filed a motion for summary judgment in this regard and pointed to the rights/responsibilities set forth in its lease with the shopping center. Following a | shearing, the trial court granted Family Dollar’s motion for summary judgment, dismissing the plaintiffs’ claims.

The plaintiffs appeal.

Discussion

Summary Judgment

An appellate court reviews a ruling on a motion for summary judgment under the same criteria that governed the trial court’s consideration of the motion. Moreno v. Entergy Corp., 12-0097 (La.12/4/12), 105 So.3d 40. In this regard, La.Code Civ.P. art. 966(B)(2) provides that a summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavit, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Further, La. Code Civ.P. art. 966(C)(2) states that a moving party who will not bear the burden of proof at trial must only “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” If the adverse party subsequently “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

Duties as a Tenant

As at the trial court, the parties largely draw their respective arguments from the lease controlling the relationship between the shopping center and its tenant, Family Dollar. The lease, submitted in support of the motion for summary judgment, provides that Family Dollar, as the tenant, acquired the right to use the store premises, as well as “the right to use, in common with other tenants in the shopping center, the paved, marked, lighted parking,” as well as certain service and access areas described within the lease. Additionally, the lease provides:

|,42. MAINTENANCE AND REPAIRS. ... In addition, the Landlords agree they will be responsible for any major repairs and replacements to the plumbing, electrical, heating and air conditioning systems, and that they will keep the paved and marked parking, service and access areas maintained, including the removal of snow, trash and debris, and in a good state of repair and properly lighted.

Referencing the lease, the trial court explained in reasons for ruling that, “Family Dollar had no duty to inspect the premises and that Family Dollar could not be held strictly liable for the allegedly defective condition, because it did not have garde or custody of the parking lot at the time of the accident.”

However, the plaintiffs contend that a subsequent portion of the lease provides the foundation for an independent duty on the part of Family Dollar. On this point, Section 14 of the lease provides:

14. UNPERFORMED COVENANTS OF LANDLORDS MAY BE PERFORMED BY TENANT. If the Landlords shall fail to perform any of the affirmative covenants to be performed by the Landlords pursuant to this lease, or if the Landlords should fail to make any payment which they herein agree to make, including payments secured by a mortgage or deed of trust, on the shopping center of which the demised premises are a part or on the demised premises, then the Tenant may, at its option, after notice to the Landlords, perform such affirmative covenant, or make any such payments, as the Landlords’ agent, and in the Tenant’s sole discretion as to the necessity therefore, and the full amount of the cost and expense entailed, or of the payment so made, shall immediately be owing by the Landlords to the Tenant. The Tenant shall have the right to deduct the amount thereof, together with interest at the legal rate thereon, from the date of payment, without liability of forfeiture, out of rents then due or thereafter coming due hereunder. Tenant shall have a lien on the demised premises and on the shopping center of which the demised premises are a part, to secure the repayment of any such amount with interest. The option given in this paragraph is for the sole protection of the Tenant, and its existence shall not release the Landlords from any obligation to perform any of the covenants herein provided to be performed by the Landlords, or deprive the Tenant of any legal right which it may have by reason of any default by the Landlords.

(Emphasis added.)

The plaintiffs suggest that Family Dollar has admitted that an employee had informed the shopping center of the need to repair the parking lot, thus invoking |4Paragraph 14 of the lease. On this latter point, we note that Family Dollar disputes initial statements it made which indicated that its employee had advised the shopping center of the parking lot’s condition.

Despite any factual dispute regarding whether Family Dollar informed the shopping center that the parking lot was in need of repair, we find no merit in the plaintiffs’ argument regarding the lease. Instead, Paragraph 12 of the lease specifically places the responsibility for repairing and maintaining the parking lot with the shopping center. Although Paragraph 14 provides that Family Dollar “may” perform those functions in the event the shopping center failed to perform the lease’s “affirmative covenants,” reading of the paragraph in its full context confirms that assumption of that duty is at the discretion of the tenant. Notably, Paragraph 14 provides that “[t]he option given in this paragraph is for the sole protection of the Tenant, and its existence shall not release the Landlords from any obligation to perform any of the covenants herein provided to be performed by the Landlords[.]”

|5In short, the evidence, in support of and in opposition to, the motion for summary judgment does not indicate that Family Dollar invoked Paragraph 14 so as to permit it to proceed with its own repairs on the shopping center’s parking lot. Rather, the provision only provided Family Dollar with the option to perform that duty at its discretion under specified conditions. There is no indication here that it chose to avail itself of the protections afforded by that paragraph.

Extra-Contractual Duties

Similarly, we find no evidence indicating that the plaintiffs “will be able to satisfy [their] evidentiary burden of proof at trial” with regard to their alternative assertion that Family Dollar owed a duty to customers to provide a warning or alternative entrance to the store. See La.Code Civ.P. art. 966(C)(2). As evidenced above, we again here note that Family Dollar did not own the parking lot, that Family Dollar only had a right of use of the common parking lot, and that there is no indication that Family Dollar independently caused or exacerbated the complained of condition. The plaintiffs presented no evidence indicating that, in the presence of these factors, Family Dollar breached a duty owed. Rather, the plaintiffs have only presented an allegation of such a duty and breach thereof. Reference to La.Code Civ.P. art. 967(B) indicates when a motion for summary judgment is made and supported as provided in La.Code Civ.P. art. 966, “an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue of material fact.” While the plaintiffs submitted photographs of the complained of condition and a receipt from the repairs ultimately made by the shopping center, no evidence was presented to indicate that the condition was such so as to have created a duty and resulting breach by this defendant, a tenant.

| (-.Accordingly, we find no merit in the plaintiffs’ arguments and determine that the trial court appropriately entered summary judgment in favor of Family Dollar Stores of Louisiana, Inc.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the plaintiffs — appellants, Evelyn Honoré and Darren Honoré.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

|TIt is undisputed that the accident occurred in the parking lot owned by Amy Shopping and leased by Family Dollar. The foremost issue at hand is whether the Honores met their burden of proof in showing Family Dollar had “custody” over the lot such that an issue of material fact exists and summary judgment was inappropriate.

In Dupree v. City of New Orleans, 99-8651 (La.8/31/00), 765 So.2d 1002, 1009, the Louisiana Supreme Court stated:

Determining who has the custody or garde of the thing is a fact driven determination. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991). Moreover, because Article 2817 imposes liability upon persons for things in their custody or garde, a principle much broader than ownership, it is clear that more than one party may have custody or garde of a thing under La.Civ.Code art. 2317, determined by an examination of the parties’ actions and relationships to the thing causing the injury. King [v. Louviere], 543 So.2d [1327] at 1329-30 [ (La.1989) ] (discussing dual garde and noting that under appropriate circumstances the custody or garde of a thing may be divided between two persons); Ehrman v. Holiday Inns, Inc., 94-0312 (La.App. 4 Cir. 8/29/95), 653 So.2d 732, 738 (stating that “[m]ore than one party may have custody and control or garde under La.C.C. 2317”); Thumfart, 613 So.2d at 289-90 & n. 4 (concluding that dual garde may exist under La. Civ. Code art. 2317 and liability of the no-nowner is determined by his own actions and relationship to the thing causing the injuries); see also Maraist & Galligan, Louisiana Tort Law § 14-5, at 341 & n. 51 (discussing dual garde). The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another. King, 543 So.2d at 1328.

| gCustody, distinct from ownership, refers to a person’s supervision and control (garde) over a thing posing an unreasonable risk of harm. Loescher v. Parr, 324 So.2d 441 (La.1975). “Under Louisiana law, the guardian is in a better position than the innocent victim to detect, evaluate, and take steps to eliminate a defect posing an unreasonable risk of harm to others.” Thumfart v. Lombard, 613 So.2d 286, 290 (La.App. 4 Cir.1993), writ denied sub nom., Montalbano v. Lombard, 617 So.2d 1182 (La.1993) (citations omitted).

The supreme court in Dupree went on to define a test for determining who has custody or garde of a thing by setting forth general principles to assist the trier-of-fact. It stated, that in determining whether a thing is in one’s custody or garde, courts should consider “(1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing.” Dupree, 765 So.2d at 1009 (citations omitted).

In the present case, the Honores, citing Dupree, argue summary judgment was inappropriate due to the nature of the lease agreement. Under the Maintenance and Repairs portion of the lease,

[T]he landlords [Amy Shopping] agree they -will be responsible for major repairs and replacements to the plumbing, electrical, heating, or air conditioning systems, and that they will keep the paved and marked paving, service, and access areas maintained, including removal of snow, trash, debris, and in good state of repair and properly lighted.

The Honores contend the above provision encompasses a list of “affirmative covenants,” a term drafted by Amy Shopping. Furthermore, the lease states (emphasis added):

If the Landlords [Amy Shopping] shall fail to perform any of the affirmative covenants to be performed by the Landlords pursuant to this lease, or if the Landlords fail to make any payment which they herein agree to make, including payments secured by a mortgage or Indeed of trust, on the shopping center of which the demised premises are a part on or on the demised premises, then the Tenant may, at its option, after notice to the Landlords, perform such affirmative covenant.

The lease is clear that Amy Shopping is responsible for keeping the paved areas maintained, but, should Amy Shopping fail to keep this “affirmative covenant,” Family Dollar may, after notice to Amy Shopping, perform the affirmative covenant. Family Dollar admits an employee notified Amy Shopping of the condition of the parking lot. This notice would give Family Dollar the option to maintain the parking lot or take affirmative steps to correct the pothole. It gives Family Dollar “the right to direction and control over the thing.”

Utilizing the two-part test set forth in Dupree, a material fact exists, under the terms of the lease, whether Family Dollar had the right of direction and control over the premises upon Amy Shopping’s notice and failure to act. Furthermore, under the second Dupree factor, Family Dollar benefited from the parking lot in front of its premises. Rather than take steps to repair, resurface, block off, or warn of the area in front of its store, Family Dollar chose to abide by the narrow portion of its lease with Amy Shopping and argues the lease exculpates it from any liability for defects outside its premises. However, custody is a much broader principle than ownership. Family Dollar had the right to use the parking lot and take affirmative actions should Amy Shopping fail to maintain it. Family Dollar admits an employee notified Amy Shopping and that Amy Shopping did not comply with Family Dollar’s request.

Therefore, I would find that a material fact exists as to whether, once Amy Shopping was put on notice of the pothole by Family Dollar, Family Dollar had control over this “affirmative covenant” portion of the lease.

      . The suit against the shareholder, Wilford Arnaud, was subsequently dismissed.

      . In its brief to this court, Family Dollar states that:
      Plaintiff incorrectly states in his appellant brief that "A FAMILY DOLLAR STORES OF LOUISIANA, INC. employee notified AMY SHOPPING CENTER, INC. of the condition of the parking lot.” This statement was listed by Counsel for FAMILY DOLLAR STORES OF LOUISIANA, INC. in the initial Motion for Summary Judgment as an undisputed fact; however, after further discovery it was concluded by Counsel for FAMILY DOLLAR STORES OF LOUISIANA, INC. that there was no evidence that a Family Dollar Store employee had ever contacted AMY SHOPPING CENTER, INC. about the condition of the parking lot. An Amended Motion for Summary Judgment and Amended Memorandum in Support of the Motion for Summary Judgment was filed on May 15, 2012 retracting the statement. As a result of the retraction of the statement there is absolutely no evidence in the record from either party that FAMILY DOLLAR STORES OF LOUISIANA, INC. had any knowledge of the condition of the parking lot.

      . For example, in a deposition excerpt attached to Family Dollar’s amended motion for summary judgment, the owner of the shopping center denied that anyone from Family Dollar had informed him of the condition of the parking lot. However, in a similarly-attached deposition excerpt, Mrs. Hon-oré explained that, when she fell, a manager from Family Dollar approached them and "just kept saying, T’ve been telling them to fix the parking lot. We need to get in touch with the people to get the parking lot fixed before someone gets hurt.' ”


author: COOKS, Judge. CONERY, J.,

text:
    Reginald PHILLIPS v. CITY OF CROWLEY, et al.
    No. 12-1306.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.

      Harold D. Register, Jr., Rochell Jones, Lafayette, LA, for Plaintiff/Appellant, Reginald Phillips.
    James L. Pate, Sara Rodrigue, Laborde & Neuner, Lafayette, LA, Thomas K. Re-gan, Crowley, LA, for Defendant/Appellee, The City of Crowley.
    Homer Ed Barousse, Jr., Barousse & Craton, L.L.C., Crowley, LA, for Defen-danVAppellee, Wayne A. Melancon, Sheriff of Acadia Parish, Louisiana.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   COOKS, Judge.

|, This appeal arose out of an incident where Kimberly Phillips shot her husband, Reginald Phillips, in their home on July 16, 2009. In the weeks prior to the shooting, Kimberly and Reginald had been involved in an ongoing domestic dispute.

On July 1, 2009, Kimberly filed a Petition for Protection from Abuse against Reginald. The district court issued a temporary restraining order (TRO) against Reginald, which required him to leave the family home. A hearing on the matter was set for July 15, 2009, to determine whether a protective order should be issued.

A hearing officer denied the request for a protective order. Reginald then requested an escort by the Crowley Police Department to the family home so he could retrieve his personal belongings. After arriving at the police station he was asked by the Assistant Chief to produce documentation that the protective order had been dismissed. Reginald contacted Jack Miller, his attorney, and on the following day, July 16, 2009, he went to Mr. Miller’s office to secure a copy of the court order. While there, he was told by Mr. Miller the Crowley Police Chief, K.P. Gibson, had been informed of the need for a police escort. When Reginald arrived at the police station later that afternoon, he produced the necessary documentation and was then escorted by a Crowley Police Officer to the home.

Upon arrival at the home, Kimberly was informed that Reginald had court approval to enter the home and retrieve his personal belongings. Soon after Reginald arrived at the house, two more officers appeared on the scene. At that time, there were three officers present: Richard Bau-doin, Brandon LaFosse, and David Hoff-pauir.

Reginald claimed, while he was retrieving his belongings, Officer Baudoin began to shout at him to “hurry up because he didn’t have time to babysit.” |2Aceording to Reginald, the officers then began to demand he leave the residence. At this point, Reginald phoned Mr. Miller to advise him what was occurring. Reginald stated he suggested to Mr. Miller that it might be best to leave the residence and return with officers that were willing to wait for him while he gathered his personal belongings. Mr. Miller then spoke with Officer Baudoin on the telephone and explained to him that Reginald was legally entitled to retrieve his personal belongings.

After Officer Baudoin spoke with Mr. Miller, Reginald continued to gather his belongings. During this time, the three officers left the premises. Reginald maintained he was not told by the officers they were leaving, and was not aware they had left the premises.

When Kimberly was informed by the officers that they intended to leave, she called her friend, Danielle Domingue, and asked her to come over. Ms. Domingue and Kimberly worked for the Acadiana Parish Sheriffs Office, although in different departments (Ms. Domingue in 911 and Kimberly in the tax collection department). Shortly after speaking with Kimberly, Ms. Domingue arrived with her kids. Ms. Domingue stated when she arrived at the house, the officers asked her if she was going to stay at the home because they could no longer stay. Officer Baudoin, in his deposition testimony, stated all the officers left because Ms. Domingue was at the home.

After staying for a short period, Ms. Domingue also decided to leave because her children were getting “antsy.” Ms. Domingue stated she returned back to the residence about fifteen minutes after she left because she was worried when Kimberly did not answer her phone or return a text message she sent. Upon returning to the premises, she saw police cars and an ambulance present. After ^getting out of the car, she was informed that Reginald had been shot in the back multiple times by Kimberly.

Reginald testified he was bent over a desk unplugging a wireless router, when he heard Kimberly say “this is all you’re going to have.” He then looked over his shoulder and saw Kimberly standing in the hallway with a gun. Reginald stated before he could move, Kimberly shot him in the back. As a result of the shooting, Reginald suffered spinal cord injuries and is paralyzed.

Kimberly was eventually indicted by a grand jury for aggravated second degree battery as a result of the shooting. Kimberly pled guilty, and is currently incarcerated.

Reginald eventually filed suit against the City of Crowley and the Crowley Police Department, alleging they were negligent in failing to protect and stay with him while he was retrieving his belongings. Also named as defendants were the Acadia Parish Sheriffs Office, Acadia Parish, and Sheriff Wayne A. Melancon for their negligence in continuing to retain Kimberly and allowing her to keep possession of a government-issued firearm after discovering she committed a felony theft at the Acadia Parish Sheriffs Office.

On July 8, 2009 (eight days before the shooting), Kimberly was confronted by her supervisor concerning three missing deposits from the tax department of the Acadia Parish Sheriffs Office. Apparently, Kimberly admitted she had a gambling addiction which led her to steal the money. In total, Kimberly stole nearly $60,000.00 from the Acadia Parish Sheriffs Office.

Reginald asserted Sheriff Melancon did not terminate Kimberly from her duties after he discovered the theft, nor did he require her to turn over the government-issued gun (which was the weapon used to shoot Reginald). Reginald | ¿maintained Kimberly continued to work for the Sheriffs Office and keep her gun until she was terminated after shooting him.

Shortly after suit was filed, the City of Crowley, the Acadia Parish Sheriffs Office and Sheriff Melancon filed motions for summary judgment. The trial court granted summary judgment in favor of the Acadia Parish Sheriffs Office and Sheriff Melancon, finding the sheriff owed no particular duty to Reginald to protect him against the risk of harm that occurred in this case. The trial court stated “there was no foreseeability by the sheriff that his employee, who worked in a civil department, would — and, albeit that she had apparently stolen money at some point before this — that she would then commit a violent crime.”

The trial court also granted the City of Crowley’s motion for summary judgment, finding “under these facts, the City of Crowley did not breach a duty to Mr. Phillips, because their general duty to protect the public did not extend to the duty to prevent the harm that befell to him by this intentional act, which was not foreseeable under the circumstances of this case.”

Reginald has appealed the trial court’s judgment, contending it erred in granting the motions for summary judgment filed by the City of Crowley, the Acadia Parish Sheriffs Office and Sheriff Melancon.

ANALYSIS

In reviewing a motion for summary judgment, an appellate court “applies a de novo standard of review, ‘using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d. 889, 844 (quoting Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). As a general principle, our law |sin Louisiana favors the summary judgment procedure as a vehicle by which the “just, speedy, and inexpensive” determination of an action may be achieved. La.Code CivJP. art. 966(A)(2). The trial court is required to render summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

“[F]acts are material if they potentially insure or preclude recovery, af-feet a litigant’s ultímate success, or determine the outcome of the legal dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751 (quoting South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writ denied, 596 So.2d 211 (La.1992)). A genuine issue is one in which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Id. Whether a fact is material is determined in light of the relevant substantive law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d 898, writ denied, 03-1388 (La.9/13/03), 853 So.2d 645. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Smith, 639 So.2d 730; Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791 (La.App. 3 Cir.), writs denied, 525 So.2d 1048, 1049 (La.1988).

I. The Acadia Parish Sheriff’s Office ¡Sheriff Melancon’s Motions for Summary Judgment.

Reginald contends the trial court erred in granting the Acadia Parish Sheriffs Office and Sheriff Melancon’s motion for summary judgment, asserting, had the sheriffs office taken back the gun, he would not have been shot. Reginald maintains “it is certainly foreseeable that someone who has committed a major felony crime against the Chief Law Enforcement Office of Acadia Parish because of a major gambling problem, also has the propensity to commit additional criminal activity.” The trial court, in granting the motion for summary judgment concluded the “harm that befell the plaintiff had nothing to do with her taking money from the sheriffs department. It had to do with the fact that she turned violent in some domestic situation.”

In Roberts v. Benoit, 605 So.2d 1032 (La.1991), the Louisiana Supreme Court considered a case where Benoit, an off-duty police deputy, shot the plaintiff accidentally while he was playing with his gun while intoxicated. A negligence action was brought against the sheriff. The facts established Benoit was hired by the sheriff to serve as a cook. It was common practice for all employees to be commissioned and to undergo one day of firearm training.

The Roberts court noted the extent of protection owed a particular plaintiff is determined on a case-by-case basis to avoid making a defendant an insurer of all persons against all harms. The court examined the ease of association between the risk posed by the deputy’s conduct and the Sheriffs duty to exercise reason when hiring and training deputies. The court found the ease of association in that case 17was, “at best, attenuated.” Id. at 1044. The court discussed the scope of protection element of the duty-risk analysis in detail:

The most critical issue in the instant case is whether the injury plaintiff sustained was within the contemplation of the duty discussed above. There is no “rule” for determining the scope of the duty. Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty.
In short, the scope of protection inquiry asks “whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner.”
Generally, the scope of protection inquiry becomes significant in “fact-sensi-five” cases in which a limitation of the “but for” consequences of the defendant’s substandard conduct is warranted. These cases require logic, reasoning and policy decisions be employed to determine whether liability should be imposed under the particular factual circumstances presented. This is such a case. Particularly, the court of appeal’s “but for” conclusion is that had Benoit not been commissioned as a deputy he would not have been carrying the gun that caused plaintiffs injuries.
In determining the limitation to be placed on liability for a defendant’s substandard conduct — i.e., whether there is a duty-risk relationship — we have found the proper inquiry to be how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced. Restated, the ease of association inquiry is simply: “How easily does one associate the plaintiffs complained-of harm with the defendant’s conduct? ... Although ease of association encompasses the idea of foreseeability, it is not based on foreseeability alone.” Absent an ease of association between the duty breached and the damages sustained, we have found legal fault lacking.

Id. at 1044-45 (citations omitted.) The Roberts court rejected plaintiffs argument that the sheriff was negligent or vicariously liable, because the shooting was not connected in any way to Benoit’s duties as an employee of the sheriff. Specifically the Roberts court found no liability as Be-noit went “outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own.” Id. at 1038, quoting Collins v. City of New York, 11 Misc.2d 76, 171 N.Y.S.2d 710, 714 (Sup.Ct.1958), aff'd 7 N.Y.2d 822, 196 N.Y.S.2d 700, 164 N.E.2d 719 (1959). Likewise in this case we conclude Kimberly was outside her employment and was effecting a purpose of her own when the shooting took place. The trial court did not err in granting the Acadia Parish Sheriffs Office and Sheriff Melancon’s motion for summary judgment.

II. The City of Crowley’s Motion for Summary Judyment.

The trial court granted summary judgment in the City of Crowley’s favor because it believed once the officers had secured entry into the house of Reginald, they had no further duty. A review of the following comments by the trial court reveals its reasoning in granting summary judgment:

And while the police officers certainly had a duty — based on the court order that is not in dispute was the only existing court order — they did have a duty to assist him in regaining access to his house, its undisputed at some point, they communicated to him that they would not remain with him indefinitely. They asked him to leave. He admits this. He called his lawyer. And his lawyer advised the police officers you cannot make him leave.
At that point, the police officers had no further duty. They had — They had acquired for Mr. Phillips what he asked for, which was entry into his home. There is no evidence that there were any threats being made by either party against the other or any other reason why the police were required to remain there indefinitely.
And I do not accept the argument that Mr. Phillips was willing to leave if the police officers were no longer remaining, because the police officer made it known to them that they were not willing to remain and that he should — and advised him that, had he wished to have extended supervision, there were resources available through the marshall’s office.

A review of the record shows several of the above conclusions reached by the trial court are, at a minimum, disputed questions of fact which are not properly disposed of at a summary proceeding.

While it is clear that the officers did tell Reginald they wanted him to leave the residence, Reginald responded to this by calling his attorney, who then spoke with Officer Baudoin. While talking with Mr. Miller, Officer Baudoin left the | groom where Reginald was packing his things. Officer Baudoin testified as follows regarding this sequence of events:

A. [Reginald] gave me the phone. I talked to Jack [Miller], Jack was telling me, you can’t make him leave. I said, I know I can’t make him leave, but to help the situation, you know, he’s packing up, he’s going. So it’s going to be good, huh? He said, well, yeah. I gave him the phone back, so—
Q. At any point, did you see Reginald stop packing, and say, hey, I changed my mind, I’m not leaving?
A. A little while later, yes.
Q. A little while later?
A. Yes, ma’am.
Q. Did Reginald, at any point in time, request that you stay, you stay there until he finished—
A. I don’t remember—

It is not clear from this testimony whether, after the phone conversation between Officer Baudoin and Mr. Miller, any of the officers present informed Reginald they were all leaving. Reginald may well have assumed Mr. Miller’s phone conversation cleared up the problem. There also is no unequivocal evidence that Reginald, at any point, was aware the officers left the premises while he was inside.

More importantly, the trial court’s conclusion that “[t]here is no evidence that there were any threats being made by either party against the other or any other reason why the police were required to remain there indefinitely” is not supported by the record. Officer Baudoin testified in his deposition that the reason he was dispatched to the scene was there was “a disturbance at that residence.” Officer Baudoin also stated, shortly after speaking on the phone with Mr. Miller, Kimberly and Reginald “started arguing back and forth; screaming, screaming, | mscrearning.” Officer LaFosse testified Kimberly and Reginald were “bickering.” Reginald’s attorney, Jack Miller, testified one of the officers told him “there could be a lot of trouble here so [Reginald] really ought to go.” There was also testimony that police officers were previously called to the residence because of reported domestic incidents. Officers Hoffpauir and LaFosse confirmed their personal knowledge of prior incidents which required police intervention. Thus, there are material issues of fact relating to whether the officers acted reasonably considering their knowledge of prior incidents between the parties and the alleged volatile exchanges at the scene.

We also reject the trial court’s legal conclusion that once the officers secured Reginald’s entry into the residence, they no longer had any duty to remain at the residence. This court, citing the case of Siripanyo v. Allstate Indemnity Co., 03-559, p. 8 (La.App. 3 Cir. 12/23/03), 862 So.2d 1254, 1259-60, writ denied, 04-182 (La.3/19/04), 869 So.2d 860, has held if a sheriffs department undertakes the responsibility to provide its services as an escort, “they must do so in a non-negligent fashion.” Batiste v. Farm Bureau, 07-1586, p. 3 (La.App. 3 Cir. 5/7/08), 982 So.2d 975, 977.

In this case, the City of Crowley Police Department, after requiring Reginald to produce the required court documentation, agreed to escort him to the home he shared -with Kimberly. Thus, it must be determined whether the actions of its officers were reasonable under the facts and circumstances of this case. This court in Rhymes v. Winn-Dixie Louisiana, Inc., 10-1357 (La.App. 8 Cir.3/9/11), 58 So.3d 1068, discussed the evaluation of reasonableness in a summary judgment proceeding:

InSummary judgment is ordinarily not an appropriate procedural device when there are issues that require the determination of the reasonableness of acts and conduct of parties under all the facts and circumstances. Wylie v. Peltier, 10-332 (La.App. 3 Cir. 11/3/10), 2010 WL 4325838.

We find, at a minimum, material questions of fact existed as to whether the officers acted reasonably in leaving the residence under the circumstances of this case. There was clear testimony the parties were hostile towards each other while the officers were present and several of the officers on the scene were personally aware police officers had previously visited the residence because of domestic disputes between Reginald and Kimberly. The trial court’s resolution of these factual disputes at the summary judgment level was inappropriate.

We also note La.R.S. 46:2140 sets forth the duty of police officers in a domestic abuse situation. It provides “[wjhenever a law enforcement officer has reason to believe a family or household member or dating partner has been abused, the officer shall immediately use all reasonable means to prevent farther abuse[.]” The record established there were several incidents of domestic abuse situations between the parties. There was an incident, acknowledged by the trial court, where Reginald called the authorities because Kimberly had thrown a dangerous object at him. Just two weeks prior to the incident in question, Kimberly filed a Petition for Protection from Abuse against Reginald. Reginald also was arrested just one week prior to the incident for domestic assault by the police. While Reginald emphatically denied any incidents of abuse or assault on his part, the fact that these incidents occurred (regardless of their true nature), was a clear indication of the volatile and hostile relationship between the parties. Considering the officers’ testimony that they were aware of the past domestic incidents between the two parties, the duty imposed by the legislature in enacting La. R.S. 46:2140 may also provide a legal basis for the claims raised by Reginald.

|12In Wilson v. Town of Mamou, 07-409 (La.App. 3 Cir. 12/19/07), 972 So.2d 461, writ denied, 08-198 (La.3/28/08), 978 So.2d 307, the Town of Mamou was found liable for its failure to escort a known victim of abuse to her home to pick up her children. While at the home, she was shot and killed by her abusive boyfriend. In this case, the police did provide an escort for Reginald, but chose to leave him at the site despite knowledge of a history of domestic incidents between the parties and a hostile exchange between the two at the scene. Accordingly, we reverse the grant of summary judgment in favor of the City of Crowley and remand for further proceedings.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judg-merit in favor of the Acadia Parish Sheriffs Office and Sheriff Wayne A. Melaneon is affirmed. We reverse the trial court’s grant of summary judgment in favor of the City of Crowley and remand for further proceedings. Costs of this appeal are assessed one-half to the City of Crowley and one-half to plaintiff-appellant, Reginald Phillips.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CONERY, J., concurs in part, dissents in part, and assigns reasons.

CONERY, J.,

concurring in part and dissenting in part.

hi agree with the affirmation dismissing Sheriff Melaneon and the Acadia Parish Sheriffs Office. I disagree, however, with the denial of Summary Judgment as to the City of Crowley.

Louisiana Revised Statutes 46:2142 provides civil immunity for police officers under these circumstances: “Any law enforcement officer reporting in good faith, exercising due care in the making of an arrest or providing assistance pursuant to the provisions of R.S. 46:2140 and 2141 shall have immunity from any civil liability that otherwise might be incurred or imposed because of the report, arrest, or assistance provided.” (Emphasis added).

I disagree with the majority’s conclusion that once the officers assisted Mr. Phillips in gaining entry into the residence, they had a duty to stay under R.S. 46:2140. The officers were called on a courtesy escort at the request of their Police Chief, as requested by Mr. Phillips and his attorney, to help gain entrance to the home and secure his personal belongings. The un-contradicted material evidence introduced on the Motion for Summary Judgment indicates that, after helping Mr. Phillips secure entrance to the home (the locks had been changed by Mrs. Phillips) and standing by for a reasonable time while Mr. Phillips retrieved his personal belongings, the officers informed Mr. Phillips that they had to leave |2for other duties. The officers suggested that Mr. Phillips leave and obtain additional assistance from the Marshall’s office. After talking to his lawyer, Mr. Phillips chose to stay, even asking his lawyer to explain to the officers that he had a right to be there. The officers owed no duty to accompany Mr. Phillips in the first place, since they were on a “courtesy” call. After making sure there were no threats of violence and everyone was safe, they left. Danielle Domingue, a friend of Mrs. Phillips and an employee of the Acadia Parish Sheriffs Office, was there when they left.

Even assuming one or more of the officers may have been aware of past domestic incidents between Kimberly and Mr. Phillips, the prior incidents involved alleged violence and threats by Mr. Phillips against Mrs. Phillips. The officers had no information to suggest Mrs. Phillips was in any way a threat to Mr. Phillips. Ms. Domingue was present before the officers left, and, even according to Mr. Phillips, the situation was calm and peaceful when the officers left.

The officers reported in good faith and exercised due care in providing assistance pursuant to La.R.S. 46:2140. This case is exactly the type of case for which the legislature provided an immunity for police officers rendering assistance in a domestic situation pursuant to La.R.S. 46:2142. To hold otherwise would have a “chilling effect” on all police officers rendering assistance or reporting in good faith on a domestic call. The instant case is distinguishable from Wilson v. Town of Mamou, 07-409 (La.App. 3 Cir. 12/19/07), 972 So.2d 461, writ denied, 08-0198 (La.3/28/08), 978 So.2d 307, cited by the majority, because in that case, based upon her battered physical condition and her verbalization of her fear, the officer was clearly aware of the imminent danger to Ms. Wilson yet failed to act to at all to escort the victim to her residence or to pick up her children. The undisputed facts of this case are more analogous to the facts in Latiolais v. Guillory, 99-815 (La.App. 8 Cir. 11/3/99), 747 So.2d 675, writ denied, 99-8350 (La.1/28/00), 753 So.2d 832, and writ denied, 1999-3415 (La.1/28/00), 753 So.2d 833, in which the officer had no evidence before him of any immediate danger. As here, the scene before the shooting was calm, -with the shooter in both cases giving no indication or warning of violent behavior. In Latio-lais and in this case, the officers exercised due care based upon the facts before them.

For all of these reasons, I would affirm the Summary Judgment against the City of Crowley and the police officers.

      . Both Batiste and Siripanyo involved situations where the respective police department undertook the responsibility of escorting funeral processions.


author: COOKS, Judge.

text:
    Marilyn MOSLEY-HAGGERTY v. ALLSTATE INSURANCE COMPANY, et al.
    No. 12-1441.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.

      James Kirk Piccione, Brenda Sibille Pic-cione, Lafayette, LA, for Plaintiff/Appellant, Marilyn Mosley-Haggerty.
    F. Paul Leger, Law Offices of Harold G. Toscano, Lafayette, LA, for Defendants/Appellees, Mary Grace Breaux and Allstate Insurance Company.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   COOKS, Judge.

|aIn this case, Plaintiff, Marilyn Mosley-Haggerty, appeals as inadequate the trial court’s award of damages for injuries she sustained as a result of an automobile accident. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 22, 2009, Plaintiff was driving her Toyota Highlander in a southerly direction on Ambassador Caffery Parkway in Lafayette. At the area in question, there was ongoing construction which necessitated that all traffic proceeding southward merge into one lane. Mary Grace Breaux, who was driving her Dodge Ram truck, allowed Plaintiff to merge in front of her. Shortly after doing so, Ms. Breaux rear-ended Plaintiff. Ms. Breaux was solely at fault in causing the accident; and Allstate Insurance Company, her insurer, paid Plaintiffs property damage claim.

Neither party was taken to the hospital immediately after the accident. Plaintiff alleged she suffered soreness and pain shortly after the accident, with radiating pain down her arm, leg and back of her head. She stated she began having headaches and the pain intensified in the days following the accident. Plaintiff testified her symptoms continued for seven to eight months after the accident.

Plaintiff was seen by Dr. Brad Grizzaffi, a chiropractor, who had treated her since 2006. Dr. Grizzaffi testified Plaintiff suffered an exacerbation of a chronic neck condition which he attributed to the May 22, 2009 automobile accident.

Plaintiff filed a personal injury suit against Ms. Breaux and Allstate. As liability had been admitted by Defendants, the only issue at trial was the amount of damages due. After a bench trial on the merits, the trial court rendered judgment awarding Plaintiff $5,000.00 in general damages and $6,054.00 in medical |sexpenses. The trial court issued reasons for ruling, which set forth the basis for its ruling:

Ms. Haggerty was treated only by her chiropractor, Dr. Brad Grizzaffi. She was first seen by him following the accident on May 25, 2009. (It is unclear whether this was a previously scheduled visit or whether this visit was necessitated by the accident.) Dr. Grizzaffi’s deposition was admitted at trial in lieu of his live testimony. In his deposition, he diagnosed Ms. Haggerty with an exacerbation of a chronic neck condition which he relates to the May 22, 2009 automobile accident. Dr. Grizzaffi first treated Ms. Haggerty in 2006 for two months and had been treating her on a regular basis since May 2008, for symptoms similar to those she suffered following this accident.
Plaintiff and Defendant each submitted medical records from Dr. Grizzaffi regarding Ms. Haggerty’s treatment. It causes this Court great concern that these records give conflicting information regarding Ms. Haggerty’s condition following this accident.
The records submitted by the Defendants as Exhibit D2 date back to May 2008. These records indicate that Ms. Haggerty was treated by Dr. Grizzaffi on 71 occasions from May to December 2008; and on 35 occasions from January 2009 to May 18, 2009. The records from May 18, 2009 (four days prior to the accident) state that Ms. Haggerty is scheduled for recurring visits on a weekly basis. The records on May 18, 2009, indicate the following:
SUBJECTIVE COMPLAINTS:
The patient complained of minimal neck pain. This is mildly improved over her last visit. Marilyn also reported minimal upper back pain, minimal pain in the right upper arm, very mild neck pain on the right and minimal low back pain. The upper back pain is unchanged from the last visit, the pain in the right upper arm is a slight worsening of the condition since the last visit, the neck pain on the right is mildly improved over her last visit and the low back pain is unchanged from the last visit.
The records presented by the Defendant from the visit on May 25, 2009 indicate the following:
SUBJECTIVE COMPLAINTS:
The patient reported minimal neck pain and minimal upper back pain. The neck pain is no different than the last visit and the upper back pain is unchanged from the last visit. The patient also related symptoms of minimal pain in the right upper arm; no different from the last visit. Marilyn also described symptoms of minimal neck pain on the right and minimal low back pain. The neck pain on the right is a little worse since 14her previous visit and the low back pain is no different unchanged from the last visit.
The Defendants’ records from Dr. Grizzaffi are in direct contrast to those records presented by the Plaintiff. The Plaintiffs records from Dr. Grizzaffi begin on May 25, 2009, with a “new patient examination”, which provides:
NEW PATIENT EXAM FINDING FROM May 25, 2009:
The patient complained of moderately severe intermittent headaches at the back of the head and minimal restricted lower back motion on the right side. The patient complained of severe neck stiffness on both sides and severe neck pain on the right. The patient also reported symptoms of very severe stiffness of upper back bilaterally and severe mid back stiffness bilaterally. Marilyn also described symptoms of severe pain in upper back on the right, severe right upper arm pain, acute restricted motion of right shoulder and acute right shoulder pain. This patient described symptoms of acute shoulder soreness and mild lower back muscle spasms on both sides. Marilyn also reported moderate lower back tenderness on the right side. The patient also expressed indications of moderate pain in the right leg.
The Plaintiffs records further state, “It should be noted that her condition was stable prior to the accident on May 22, 2009. However, since the accident there is a noted exacerbation of her prior symptoms as well as new conditions that have developed.” There is no mention of the accident in Defendant’s records which simply provide, “The patient’s condition is responding satisfactorily.” The plaintiff submitted bills from Dr. Grizzaffi for eight months of treatment in the amount of $12,108.00.
The defendant, Ms. Breaux, admits to causing this accident, thus, liability is not at issue. Dr. Grizzaffi related Ms. Haggerty’s complaints to this accident and testified that her symptoms were exacerbated by the accident. However, with regard to the extent of damages, the conflicting information in the two sets of medical records casts a cloud on the evidence presented. If this Court is to believe the records submitted by the Defendants, Ms. Haggerty’s complaints were no different on the visit following the accident than on those prior to the accident. If this Court is to believe the records submitted by the Plaintiffs, Ms. Haggerty’s condition significantly worsened immediately following this accident.
This Court historically has never decided damages based on the severity of physical damage to vehicles. However, in this case, taking into account the conflicting medicals and the prior treatment to the plaintiff, this Court feels compelled to reduce plaintiffs claims. Unfortunately, the chiropractor was not present in court to explain the discrepancy of the reports for the May 25, 2009 visit and the significance of the similarities of complaints before the accident and the seven months thereafter.
|¡iTaking these matters into account, the Court awards medical bills of $6,054.00, and pain and suffering in the amount of $5,000.00, together with interest from date of judicial interest.

Plaintiff has appealed, contending “the trial court is manifestly erroneous in its calculation of the award to the plaintiff and [the award] constitutes an abuse of discretion.”

ANALYSIS

The law is well established the determination of “[w]hether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.2d 973, 979 (La.1991) (citing Mart v. Hill, 505 So.2d 1120 (La.1987)). An appellate court may not set aside a finding of fact by a trial court or a jury unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even if the appellate court feels its own evaluations and inferences are as reasonable. Lirette v. State Farm Ins. Co., 563 So.2d 850, 852 (La.1990); Rosell v. ESCO, 549 So.2d 840 (La.1989).

For Plaintiff to prevail in this appeal, she must show that the record, viewed in its entirety, provides no reasonable basis for the trial court to disregard portions of Dr. Grizzaffi’s expert testimony.

A review of Dr. Grizzaffi’s deposition testimony reveals it contradicts his certified non-accident treatment records of Plaintiff. As noted by the trial court, the May 25, 2009 non-accident record does not even reference the accident in question, and refers to neck, right arm, upper and lower back complaints that were no different than her prior (pre-accident) visit. Dr. Grizzaffi testified in his deposition that Plaintiff did not return to pre-accident condition until seven or eight months after the accident. However, Dr. Grizzaffi’s August 31, 2009 report says he had “just finished the treatment for Marilyn on an account associated with a Rmotor vehicle accident of the last three months ... [and] will transition her back into the wellness care program at this time.” We find the conflicts in the medical evidence provided a reasonable basis for the trial court to seriously question and discount the deposition testimony of Dr. Grizzaffi as to the relationship of the medical treatment provided to Plaintiff and the accident in question.

The trial court specifically noted “the conflicting information in the two sets of medical records casts a cloud on the evidence presented.” It also lamented the fact that Dr. Grizzaffi was not presented at trial to “explain the discrepancy of the reports for the May 25, 2009 visit and the significance of the similarities of complaints before the accident and the seven months thereafter.”'

Plaintiff notes in her brief that “[i]n hindsight, given the concerns addressed by the trial court in its reasons for ruling, the inconsistent records should have been fully explored.” However, her failure to do so places this court in an untenable position with regard to Plaintiffs request to increase the trial court’s award of damages. The trial court clearly did not find the conflicts in the medical evidence to be “small” and “inconsequential” as Plaintiff describes them in brief. Moreover, we cannot say the trial court’s view of the evidence was not permissible. The records presented by Defendant clearly show the complaints four days before the accident are nearly identical to the complaints made three days following the accident. Coupled with Plaintiffs denial of any injury at the scene of the accident, and the fact there was little, if any, visible damage to Plaintiffs vehicle from the accident, we cannot say the trial court’s refusal to award all the damages requested by Plaintiff was an abuse of discretion.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Plaintiff-Appellant.

AFFIRMED.