text:
    Karl E. KIMSEY v. NATIONAL AUTOMOTIVE INSURANCE COMPANY, et al.
    No. 13-856.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      R. Scott lies, Lafayette, LA, for Plaintiff/Appellant, Karl E. Kimsey.
    Allen J. Mitchell II, Mitchell & Blanco, LLC, Lake Charles, LA, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.
    Brent N. Carriere, Allen & Gooch, Lafayette, LA, Counsel for Defendant/Appel-lee, National Automotive Insurance Company.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   AMY, Judge.

[,The plaintiff alleged injury to his knee following an automobile accident. Although the plaintiffs insurer provided some medical treatment for the knee injury, it denied a recommended knee reconstruction. Thereafter, the plaintiff filed suit against his insurer as well as the driver of the other vehicle and the defendant driver’s insurer. The trial court found in favor of the plaintiff, awarding lost wages and ordering the plaintiffs insurer to provide knee surgery within a year if pursued by the plaintiff. The trial court also awarded loss of future earnings in the event the plaintiff pursued surgery. Although the plaintiff appeals, and upon a finding that the ruling under review is not a final appealable judgment, we dismiss the appeal and the insurer’s answer. We further deny the plaintiffs request that this matter be converted to an application for supervisory writ. We remand this matter for further proceedings.

Factual and Procedural Background

The plaintiff, Karl E. Kimsey, alleges that he sustained left knee injury in an automobile accident on February 3, 2010. At the time of the accident, Mr. Kimsey was seventeen years of age and was driving a vehicle owned by his father. The vehicle was insured by State Farm Mutual Automobile Insurance Company. The pertinent policy included, not only liability and medical payments coverage, but $50,000.00 in uninsured-economic only coverage as well. The other vehicle in the accident was driven by Terry Dickens and owned by Mr. Dickens’s brother. That vehicle was insured by a $10,000.00 policy issued by National Automobile Insurance Company (NAIC).

Mr. Kimsey reported that following the accident, he began experiencing left knee pain. He ultimately began treatment with Dr. John Park, an orthopedic ^surgeon, for a partial ACL tear of the left knee. That treatment included physical therapy and, eventually, an arthroscopic procedure to better balance the kneecap. The testimony indicated that Mr. Kimsey did not return to work during his period of rehabilitation after the arthroscopic surgery and that, upon .his return, he was subject to certain physical limitations. Although Mr. Kimsey indicated that he would like to have a knee reconstruction, as recommended by Dr. Park, he was unable to afford the surgery.

Mr. Kimsey filed the present matter, naming Mr. Dickens, State Farm, and NAIC as defendants. State Farm thereafter filed a cross-claim, asserting a subrogation claim for sums paid under its policy. Prior to trial, Mr. Kimsey stipulated that his damages did not exceed $50,000.00. By the time of the resulting bench trial, State Farm continued to contest its responsibility for the left knee reconstruction recommended by Dr. Park. State Farm further contested Mr. Kimsey’s claim for future loss of earning capacity.

The trial court ruled in favor of Mr. Kimsey, awarding the plaintiff the limits of the NAIC policy, less a sum previously tendered by NAIC to State Farm. The trial court further ordered State Farm to pay past and present lost wages in the amount of $3,850.00, reflecting Mr. Kim-sey’s period of recovery following the arthroscopic procedure performed by Dr. Park. Further, the trial court determined that Mr. Kimsey was entitled to future medical expenses relating to the knee reconstruction recommended by Dr. Park and estimated those expenses to be approximately $34,602.00. It ordered the plaintiffs expert in vocational rehabilitation to facilitate the scheduling of that surgery and subsequent physical therapy. The trial court ordered State Farm to approve any scheduled surgery within one year and determined that State Farm’s associated responsibility was | .¡limited to the remaining balance of its uninsured economic only policy, $36,400.00.

The trial court further ordered State Farm to pay loss of future earnings for a specified time in the event that surgery was scheduled and for a contingent award in the event surgery was not scheduled.

In the event that Mr. Kimsey did not undergo surgery within one year, the trial court determined that any party could return to the court “to address whether or not these costs should be paid at a future date or whether the obligation should be terminated.” The trial court awarded an expert fee of $1,000.00 to the plaintiffs vocational rehabilitation expert for his services at trial.

As for State Farm’s cross claim, the trial court determined that its claim against NAIC was extinguished by NATO’s payment of its policy limits. Additionally, the trial court granted State Farm’s claim against Mr. Dickens for the payment of past lost wages. Finally, the trial court granted the claim against Mr. Dickens for “any future amounts payable to Karl Kim-sey or on his behalf for medical services or treatment as a result of this Court’s ruling with regard to future medicals.”

Mr. Kimsey appeals. State Farm answers the appeal, arguing that the award of future medical expenses should be reversed.

Discussion

Final Judgment — Subject Matter Jurisdiction

Among other assignments, Mr. Kimsey objects to the trial court’s ruling insofar as the trial court determined that he was entitled to the knee reconstruction surgery recommended by Dr. Parks, but that the trial court did not award monetary costs associated with surgery. Instead, the trial court ordered Mr. Kimsey’s | ¿vocational rehabilitation expert, Mr.-Hebert, to facilitate the scheduling of surgery with certain area physicians. In turn, the trial court ordered State Farm to approve the surgery in the event that surgery was scheduled within one year and that if the plaintiff failed to do so within one year, “any party may return to this Honorable Court to address whether or not these costs should be paid at a future date or whether the obligation for payment of same should be terminated.” Mr. Kimsey challenges the award insofar as it orders Mr. Hebert, a third party, to facilitate the surgery and, further, did not make a specific monetary award. In its answer, State Farm asserts that the trial court’s hesitancy to award specific monetary damages reveals a lack of evidence regarding the necessity of the surgery.

We do not reach the merits of the parties’ objections to the trial court’s ruling in this respect. Instead, as is evident from the parameters of plaintiffs assignment of error in which he challenges the judgment’s specific performance by the insurer and lack of a monetary award, the court’s ruling does not constitute a final appealable judgment. Certainly, and although indirectly raised by the plaintiffs assignment of error, an appellate court has an independent duty to consider whether it has subject matter jurisdiction over the matter. Brooks v. Sibille, 12-1098, 12-1094 (La.App. 3 Cir. 1/30/13), 107 So.3d 826 (quoting Gaten v. Tangipahoa Parish. Sch. Sys., 11-1133 (La.App. 1 Cir. 3/23/12), 91 So.3d 1073).

With regard to an appeal, La.Code Civ.P. art. 2083(A) provides that “[a] final judgment is appealable in all causes in which appeals are given by law....” “An interlocutory judgment[,]” however, “is ap-pealable only when expressly provided by law.” La.Code Civ.P. art. 2083(C). In consideration of whether a Rruling is a final or interlocutory judgment, and therefore important to the question of whether a ruling is suitable for appeal, La.Code Civ.P. art. 1841 provides that:

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.

Additionally, La.Code Civ.P. art. 1918 provides that: “A final judgment shall be identified as such by appropriate language.” Such a judgment must be precise, definite and certain. Elston v. Montgomery, 46,262 (La.App. 2 Cir. 5/18/11), 70 So.3d 824, writ denied, 11-1292 (La.9/23/11), 69 So.3d 1165. Further, in Elston, the second circuit referenced supreme court jurisprudence indicating that a final judgment, rendered upon a money demand, must indicate the amount of recovery with certainty and precision. Id. (quoting, Fontelieu v. Fontelieu, 116 La. 866, 41 So. 120 (1906)). Importantly, if the amount must be determined by a future contingency or ascertained by extrinsic reference (or is otherwise indefinite and uncertain), it is not a proper judgment. Id. See also Vanderbrook v. Coachmen Indus., Inc., 01-0809 (La.App. 1 Cir. 5/10/02), 818 So.2d 906.

In this case, it is clear that the trial court’s ruling is not final as it is conditional and determined by the future contingency of Mr. Kimsey scheduling surgery within one year. Further, and although the trial court recognized the quantum of future medical expenses proven, the trial court’s judgment did not cast the defendant(s) in judgment for that figure. See Elston, 70 So.3d 824. In short, Lthe award of the claimed future medical expenses, and the related loss of future earnings, was not awarded with certainty and precision. Id. Rather, the award was indefinite, conditional, and would only become payable upon the plaintiffs further action. That indefinite quality is further evident from the judgment’s indication that, if the surgery is not scheduled “within one year of the Court’s Judgment, becoming final any party may return to this Honorable Court to address whether or not these costs should be paid at a future date or whether the obligation for payment of same should be terminated.”

|7In light of the conditional and uncertain nature of the judgment, we find that subject matter jurisdiction is lacking for consideration of this matter as an appeal. Therefore, we find it appropriate to dismiss the appeal and remand for further proceedings. We do so below.

We further observe, here, that at the oral argument conducted in this matter, the plaintiff requested that this court consider the matter under its supervisory jurisdiction in the event the panel concludes that the ruling presented is not a final judgment. See La. Const, art. 5, § 10(A)(providing that a court of appeal has “supervisory jurisdiction over cases which arise within its circuit.”). Subsequent to oral argument, the plaintiff filed a “Motion to Convert Appeal to a Supervisory Writ Application in the Alternative.” Given the nature of the plaintiffs motion to |Rconvert the appeal into an application for supervisory writ, it is apparent that the traditional formalities associated with such an application have not been satisfied. La. Code Civ.P. art. 2201; Uniform Rules— Courts of Appeal, Rule 4-1, et seq. (providing, in part that: “An application for writs of any kind ... shall not be considered by the court or any judge of the court unless it is properly filed with the clerk.”).

Notwithstanding that lack of formal procedure, and although it is otherwise within the discretion of an appellate court to convert an appeal to an application for supervisory writ, we do not exercise that discretion in this instance. See Stelluto v. Stelluto, 05-0074 (La.6/29/05), 914 So.2d 34. Importantly, an appellate court will generally refrain from the exercise of its supervisory jurisdiction when an adequate remedy exists by appeal. Thomas v. Lafayette Par. Sch. System, 13-91 (La.App. 3 Cir. 3/6/13), 128 So.3d 1055. In this instance, an adequate remedy by appeal will exist upon the entry of a precise, definite and certain judgment, one that denies or grants relief without the presence of contingencies as referenced above.

For these reasons, we dismiss the defendant’s appeal and further deny the motion to convert the appeal to an application for supervisory writ. We remand for further proceedings.

DECREE

For the foregoing reasons, we dismiss the appeal of the plaintiff, Karl Kimsey, as well as the related answer filed by the defendant, State Farm Mutual Automobile Insurance Company. Additionally, we deny the plaintiffs motion to |9convert appeal to a supervisory writ application. We remand this matter for further proceedings.

APPEAL DISMISSED. MOTION TO CONVERT APPEAL TO A SUPERVISORY WRIT APPLICATION DENIED. REMANDED.

      . The equivocalness of the trial court’s award of future medical expenses and loss of earnings is apparent from consideration of the judgment in its totality. The judgment provides as follows:
      The above captioned matter came before the Court [for] bench trial on August 22, 2012. Written reasons for Judgment were issued by the Court on October 19, 2012, and Amended Reasons for Judgment were issued on November 26, 2012. The Court finds in favor of Karl Kimsey and against Terry Dickens on the issue of liability. Furthermore, the orders of the Court are as follows:
      IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Karl Kimsey and against Terry Dickens and National Automotive Insurance Company in the amount of $9,058.16, together with judicial interest from the date of demand until paid.
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be an award in favor of Karl Kimsey for past and present lost wages in the amount of $3,850.00.
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that future medical expenses be awarded to Karl Kimsey in the form of directing the plaintiff’s expert witness, Glenn M. Hebert, to facilitate knee surgery and post-operative physical therapy which the Court has approximated at $34,602.00. Mr. Hebert is directed to schedule the surgery by a physician of the plaintiff’s choosing in the Alexandria, Lake Charles or Lafayette area, without cost to the defendants.
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, State Farm Mutual Automobile Insurance Company, is to approve the surgery scheduled by Mr. Hebert without fail, provided that the surgery is scheduled within one year of the Court’s ruling becoming final. State Farm Mutual Automobile Insurance Company’s exposure and responsibility for payment for the surgery or associated costs is limited to the remaining balance of its UEO policy limits of $36,400.
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if surgery is scheduled and performed within the time frame directed by the Court, Karl Kimsey is awarded the sum of $300.00 per week during his recovery for a maximum period of thirty-six (36) weeks. Alternatively, in the event that the surgery is not scheduled, Karl Kimsey is to receive $50.00 per week for a period of eight (8) weeks to be paid by State Farm Mutual Automobile Insurance Company.
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if Karl Kimsey fails to schedule and complete the surgery within one year of the Court’s Judgment, becoming final any party may return to this Honorable Court to address whether or not these costs should be paid at a future date or whether the obligation for payment of same should be terminated.
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the expert fee of Glenn M. Hebert is set at $1,000.00 for his trial testimony.
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cross claim by State Farm Mutual Automobile Insurance Company against National Automobile Insurance Company is resolved by National Automobile Insurance Company’s payment of the balance of its policy limits to plaintiff, thus exhausting National Automobile Insurance Company’s total obligations to all claimants.
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Judgment on the Cross Claim is granted in favor of State Farm Mutual Automobile Insurance Company against Terry Dickens in the amount of $7,450 which reflects prior and future payment to Karl Kimsey for past lost wages. Judgment is furthered [sic] granted in favor of State Farm Mutual Automobile Insurance Company against Terry Dickens for any future amounts made payable to Karl Kimsey or on his behalf for medical services or treatment as a result of this Court’s ruling with regard to future medicals.
      IT IS FINALLY ORDERED, ADJUDGED AND DECREED that court costs be evenly assessed against the defendants, National Automotive Insurance Company and State Farm Mutual Automobile Insurance Company.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Catrina L. WALLACE.
    No. 13-862.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Rachel I. Conner, New Orleans, Louisiana, James E. Boren, Baton Rouge, Louisiana, for Defendant/Appellant, Catrina L. Wallace.
    J. Reed Walters, District Attorney, Jena, Louisiana, for Appellee, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

1 .FACTS AND PROCEDURAL HISTORY

Defendant, Catrina L. Wallace, was convicted of three counts of distribution of cocaine, having sold, on three separate occasions within a three-week period, one to three grams of cocaine to a' confidential informant. She “was sentenced to serve five years at hard labor on each count, to run consecutively, with the first two years to be served without the benefit of parole, probation, or suspension of sentence, for a total of fifteen years imprisonment[.]” State v. Wallace, 11-1258, p. 1 (La.App. 3 Cir. 5/30/12), 92 So.3d 592, 594, writs denied, 12-1861, 12-1865 (La.3/8/13), 109 So.3d 355. On appeal, this court affirmed Defendant’s convictions, but vacated her sentences and remanded the matter to the trial court for resentencing, having found that the trial court abused its discretion when it imposed three five-year sentences to be served consecutively, resulting in constitutionally excessive sentences. Pursuant to the remand, this court instructed the trial court “that the maximum consecutive sentence may not total more than ten years at hard labor with the first two years to be served without the benefit of parole, probation, or suspension of sentence.” Id. at 605-06.

Subsequent thereto, on April 11, 2013, Defendant filed a Motion to Correct Illegal Sentence. Defendant noted this court’s decision and requested the matter be placed on the docket for resentencing. On May 7, 2013, the trial court sentenced Defendant to serve five years at hard labor on counts one and two, to run consecutively. On count three, the trial court sentenced Defendant to serve five years at hard labor, to run consecutively to the sentences in counts one and two. The trial court then suspended the sentence imposed on count three and ordered that Defendant be placed on five years active supervised probation upon her | ¡release from her parole obligation. The State filed a Motion to Reconsider Sentence on May 10, 2013, alleging the sentences imposed were not in accordance with La.R.S. 40:967(B).

On May 29, 2013, Defendant filed a writ of mandamus with this court, requesting a clarification of our earlier ruling and an order directing the trial court to comply with it. This court denied Defendant’s request. State v. Wallace, 13-614 (La. App. 3 Cir. 6/6/13) (unpublished opinion).

A resentencing hearing was held on June 11, 2013. At that time, the trial court sentenced Defendant to serve five years at hard labor on count one, with the first two years of the sentence to be served without the benefit of parole, probation, or suspension of sentence. On count two, Defendant was sentenced to five years at hard labor with the first two years of the sentence to be served without the benefit of parole, probation, or suspension of sentence. Two years of the sentence on count two were suspended, and the trial court ordered the sentences for ■counts one and two to run consecutively. On count three, Defendant was sentenced to five years at hard labor with the first two years of the sentence to be served without the benefit of parole, probation, or suspension of sentence. Three years of the sentence were suspended, and the trial court ordered the sentence to run consecutively with those imposed in counts one and two. The trial court then ordered that Defendant be placed on five years active supervised probation upon release from her parole obligation. Defense counsel objected and moved for reconsideration of the sentences on the basis that the sentences were excessive and that consecutive sentences were imposed. Defendant’s motion to reconsider was denied.

A motion for appeal was filed by Defendant on June 28, 2013, and was subsequently granted. Defendant is now before this court asserting two ^assignments of error. First, Defendant contends that the trial court abused its discretion when it resentenced her in contravention of this court’s previous order. Second, Defendant contends that the trial court’s increase in sentence at resentencing without justification evidences unconstitutional vindictiveness and improper punishment for her having successfully sought appellate review. For the following reasons, we vacate Defendant’s sentences on the basis that the total term of imprisonment imposed exceeds that set forth in this court’s prior opinion, and we remand the matter for resentencing. Because we vacate Defendant’s sentences, we need not address Defendant’s second assignment of error.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find several errors patent regarding the sentences. However, due to the fact that we vacate the sentences imposed on May 7, 2018, and on June 11, 2013, the errors patent are rendered moot.

ASSIGNMENT OF ERROR NO. 1

In her first assignment of error, Defendant contends that the trial court abused its discretion when it resentenced her in contravention of this court’s previous order. Defendant argues that on June 11, 2013, the trial court sentenced her to fifteen years at hard labor, with five years suspended, and the first six years |4of the sentence to be served without benefits. Defendant alleges the sentences imposed on remand are considerably harsher than the original sentences imposed and subsequently vacated by this court. Defendant asks this court to vacate the sentences imposed and order the trial court to comply with this court’s ruling such that she “may receive a maximum sentence of ten years at hard labor, inclusive of timé suspended and time on probation, with a maximum of two years to be served without benefits.”

Defendant’s assignment of error requires this court to interpret its prior ruling. In Wallace, 92 So.3d at 605-06, this court vacated Defendant’s sentences, stating:

Defendant’s convictions are affirmed. However, the trial court abused its discretion when it imposed three five-year sentences to be served consecutively, resulting in constitutionally excessive sentences. We, therefore, vacate the sentences and remand to the trial court for resentencing with the instruction that the maximum consecutive sentence may not total more than ten years at hard labor with the first two years to be served without the benefit of parole, probation, or suspension of sentence.

Defendant was convicted of distribution of cocaine which is punishable by “a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence[.]” La.R.S. 40:967(B)(4)(b).

Louisiana Revised Statutes 15:301.1(A) provides:

When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory | ^requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

Based on the requirements set forth in La.R.S. 40:967(B)(4)(b) and La.R.S. 15:301.1, we find that the first two years of each sentence imposed upon Defendant herein must be without the benefit of parole, probation, or suspension of sentence. This court made no mention of probation in its prior opinion. We will now determine whether the sentences imposed by the trial court on May 7, 2013, and June 11, 2013, are in contravention of this court’s previous order.

In State v. Dixon, 02-1265 (La.App. 3 Cir. 3/5/03), 839 So.2d 1141, the defendant was convicted of attempted simple robbery and sentenced to serve three years at hard labor. Two years of the sentence were suspended, and he was placed on three years supervised probation upon his release from incarceration. On appeal, the defendant claimed his sentence was illegally excessive because it exposed him to a sentence beyond the statutory maximum authorized for the offense, which carried a maximum term of imprisonment of three and one-half years. This court addressed the issue stating:

Two years were suspended (leaving one year to be served in prison), and he was placed on three years supervised probation upon his release from the one-year period of imprisonment. Accordingly, once he completes his one-year term of imprisonment, he is to serve three years of supervised probation. If his probation is revoked, he will then be incarcerated for the two year period that was originally suspended. La.Code Crim.P. art. 900(A)(5). Thus, the total period of imprisonment to which Defendant is exposed is three years, which is six months below the three and one-half year maximum term of imprisonment authorized for attempted simple robbery.

Id. at 1143. Cf. State v. Brown, 93-2305 (La.App. 4 Cir. 11/17/94), 645 So.2d 1282. In Dixon, this court further found the three years of probation imposed by the trial court was not considered imprisonment, stating:

| (¶Additionally, La.Code Crim.P. art. 893 authorizes a trial court to suspend a sentence for certain felony offenses, in whole or in part, and place a defendant on supervised probation for one to five years. Although there are felony offenses that have maximum sentences of less than five years (i.e., attempted simple robbery), Article 893 does not limit the probationary period for those offenses to the maximum term of imprisonment that may be imposed. Hence, pursuant to Article 893, a trial court may place a defendant convicted of attempted simple robbery on probation for five years even though the maximum term' of imprisonment is three and one-half years.

Dixon, 839 So.2d at 1144. See also State v. Whatley, 06-316 (La.App. 3 Cir. 11/2/06), 943 So.2d 601, writ denied, 06-2826 (La.8/31/07), 962 So.2d 424. We find this court’s analysis in Dixon, 839 So.2d 1141, to be applicable to the case at bar, and, as set forth in this court’s prior opinion, the maximum sentence that could be imposed is comparable to a maximum sentence provided by a statute.

Under the sentences imposed in the instant case on May 7, 2013, and June 11, 2013, Defendant was sentenced to fifteen years at hard labor. However, five years of each sentence were suspended. If Defendant’s probation is revoked under either set of sentences, she could be required to serve the five-year period that was originally suspended. As set forth in La.Code CrimJP. art. 900(A)(5), if a court decides a defendant has violated or is about to violate a condition of probation, the trial court may “[o]rder that the probation be revoked. . In the event of revocation!,] the defendant shall serve the sentence suspended, with or without credit for the time served on probation at the discretion of the court.” Under both sets of sentences, the term of imprisonment to which Defendant is exposed exceeds that mandated in this court’s prior opinion, as Defendant’s total exposure to imprisonment is fifteen years. As set forth above, we also find that time on probation is not considered imprisonment and does not count toward the total sentence imposed. For the reasons set forth herein, Defendant’s sentences, as |7imposed on May 7, 2013, and June 11, 2013, are vacated and set aside, and the matter is remanded to the trial court for resentencing within the parameters set forth in this court’s prior opinion.

ASSIGNMENT OF ERROR NO. 2

In her second assignment of error, Defendant contends that the trial court’s increase in sentence at resentencing without justification evidences unconstitutional vindictiveness and improper punishment for her having successfully sought appellate review. In light of Defendant’s sentences being vacated, we need not and do not address this assignment of error.

DISPOSITION

Defendant’s sentences are vacated, and this matter is remanded for resentencing as set forth in this court’s prior opinion with the maximum consecutive sentence not to exceed ten years at hard labor with the first two years to be served without the benefit of parole, probation, or suspension of sentence.

SENTENCES VACATED; REMANDED FOR RESENTENCING.

PICKETT, J., concurs in the result.

      . The trial court erred when it failed to vacate the sentences imposed on May 7, 2013, before imposing the June 11, 2013, sentences. See State v. Brack, 99-1103 (La.App. 3 Cir. 3/1/00), 758 So.2d 310, overruled on other grounds by State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597; State v. Walton, 98-1433 (La.App. 3 Cir. 3/24/99), 738 So.2d 36, writ denied, 99-1195 (La.10/1/99), 748 So.2d 434. Also, at the June 11, 2013 sentencing proceeding, the trial court imposed indeterminate sentences on counts two and three when it suspended the sentences and placed Defendant on five years of supervised probation without specifying to which count or counts the probation applied. See State v. Morris, 05-725 (La.App. 3 Cir. 12/30/05), 918 So.2d 1107. Finally, the trial court failed to set a probation supervision fee. See State v. Fontenot, 06-226 (La.App. 3 Cir. 7/12/06), 934 So.2d 935.


author: EZELL, Judge.

text:
    Harris DAVID v. VERMILION SHELL & LIMESTONE CO., INC.
    No. WCA 13-863.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for PlaintifftAppellant, Harris David.
    Mark D. Boyer, Boyer, Hebert, Abels & Angelle, LLC, Denham Springs, LA, for Defendant/Appellee, Vermilion Shell & Limestone Co., Inc.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   EZELL, Judge.

11 Harris David appeals a trial court judgment which dismissed his claim for workers’ compensation benefits against his former employer, Vermillion Shell and Limestone. Mr. David alleges he suffered a compensable injury on August 30, 2010, when his eighteen-wheeler truck was rear-ended by another eighteen-wheeler truck. The workers’ compensation judge found that Mr. David failed to prove by a preponderance of the evidence that he suffered any injury or disability as a result of the accident. For the following reasons, we affirm the judgment of the Office of Workers’ Compensation.

FACTS

Mr. David was employed as a driver for Vermillion Shell and Limestone for approximately three-and-one-half years prior to the vehicular accident on August 30, 2010. On the day of the accident, Mr. David was travelling east on Interstate 10 across the Atchafalaya Basin Bridge. Another truck owned by Averitt Express was also travelling in the same direction. Apparently the Averitt Express driver fell asleep at the wheel and rear-ended the vehicle driven by Mr. David. The accident broke the rear glass, blew out a tire, and broke a rim on Mr. David’s vehicle.

After the accident, Mr. David drove to Abbeville to have the tire and glass repaired. Mr. David then went home to get some rest; after which, he got up and completed the delivery job he was attempting before the accident. Mr. David did not seek medical treatment and continued working for Vermillion Shell and Limestone after, the accident for approximately ten months.

On June 17, 2011, Cody Miller, Mr. David’s supervisor, reprimanded Mr. David for texting on his phone while driving his truck. Mr. David left work and [ 2never returned. He filed a claim for unemployment benefits which was denied because he left his job without good cause.

Mr. David sought medical treatment for the first time after he left employment with Vermillion Shell and Limestone. He initially sought treatment with his family doctor who does not treat workers’ compensation injuries. Mr. David then saw an orthopedic surgeon, Dr. Michel Heard, on July 6, 2011. Mr. David told Dr. Heard that he was not initially hurting after the accident but started having pain a couple of days later. The pain progressed to the point that he had to stop working. Mr. David reported. neck and shoulder pain that radiated into his left arm. He also complained of low back pain that radiated into his left paralumbar area and left posterior buttocks.

After an examination, x-rays, MRIs, and five visits, Dr. Heard noted some preexisting changes. An MRI indicated a cervical herniation at C6-7, which Dr. Heard opined was caused by the vehicular accident on August 30, 2010. Dr. Heard further opined that the accident made Mr. David’s neck and low back pain symptomatic.

Mr. David filed a disputed claim for compensation on July 8, 2011, alleging that the rear-end collision caused his injuries. A hearing was held on July 27, 2012. The workers’ compensation judge found that Mr. David failed to prove his case by a preponderance of the evidence and dismissed his claim. Mr. David then filed the present appeal.

COMPENSABLE ACCIDENT

Mr. David asserts that the workers’ compensation judge was clearly wrong in finding that he failed to meet his burden in proving that he suffered an injury as a result of the August 80, 2010 work accident. Mr. David argues that the workers’ | ¡¡compensation judge placed too much emphasis on the fact that he did not seek medical treatment until ten months after the accident. He argues that delays or gaps in medical treatment have been found by the courts to be of little significance.

In written reasons for judgment, the workers’ compensation judge noted several inconsistencies in Mr. David’s testimony. She observed that Mr. David had admittedly concealed the fact that he suffered with high blood pressure from his employer, noting that high blood pressure can prevent the issuance of a commercial driver’s license. She also noted that Mr. David had not disclosed a previous workers’ compensation injury to Dr. Heard. Furthermore, she observed that Mr. David told Dr. Heard he quit work due to pain as opposed to quitting over a reprimand. Based on these observations, the workers’ compensation judge did not find Mr. David to be very credible.

A workers’ compensation judge’s findings of fact are reviewed under the manifest error/clearly wrong standard of review and the findings will not be set aside unless clearly wrong after reviewing the record in its entirety. Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112. When there is a conflict in testimony, reasonable evaluations of credibility and inferences of fact will not be disturbed upon review even though the appellate court may disagree. Id. Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of the trier of fact, “for only the factfinder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said.”

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

An employee must establish a causal connection between the work-related accident and the resulting complained-of disability to prove an entitlement to |4workers’ compensation benefits. Ashworth v. Administaff, Inc., 10-318 (La.App. 3 Cir. 10/6/10), 48 So.3d 1178. The employee’s burden is by a preponderance of the evidence. Id. “[I]f the probability of causation is equally balanced based on the evidence presented, then the employee has not carried [his] burden of proof.” Id. at 1181.

In addition to the inconsistencies noted by the workers’ compensation judge, Mr. David also admitted that in 1991 he fell down some stairs while working for the Louisiana Department of Transportation and Development. As a result of the accident, he suffered a back injury and was taken off work for two years. He also filed a workers’ compensation claim at that time. Mr. David testified that he told Dr. Heard about the 1991 accident, but Dr. Heard denied knowledge of any previous accident in his deposition. Mr. David admitted he did not report any previous injuries on Dr. Heard’s questionnaire. He also denied previously having any type of x-ray testing to Dr. Heard. However, admitted he had a CT scan in 1991 after his fall. He testified that he did not think the 1991 accident was relevant. He agreed that he told Dr. Heard he stopped working in June 2011 because he was in too much pain while admitting that he actually quit after he was approached about texting while driving.

Mr. David also testified that he does not drink. On further questioning, he agreed that he talks about drinking on Facebook but stated that he is only joking. Lonnie Abshire, Mr. David’s first cousin, disagreed with Mr. David and testified that Mr. David likes to drink.

Mr. David argues that he is entitled to a legal presumption of causation. This court has explained the claimant’s burden of proof and application of the legal presumption as follows:

|fi“An employee in a worker’s compensation action has the burden of establishing a causal link between the work-related accident and the subsequent disabling condition.” Miller v. Roger Miller Sand, Inc., 94-1151, p. 6 (La.11/30/94), 646 So.2d 330, 334. An employee’s disability is presumed to have resulted from the accident if before the accident, the injured employee was in good health, but commencing with the accident, symptoms of the disabling condition appeared and continuously manifested themselves afterwards. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). However, the presumption requires either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection. Id.

Marks v. 84 Lumber Co., 06-358, pp. 3-4 (La.App. 3 Cir. 9/27/06), 939 So.2d 723, 727.

The workers’ compensation judge found that Mr. David was not entitled to the presumption of causation because the presumption requires an immediate onset of symptoms after the accident, or at least close in time to the accident, with a continual manifestation. The workers’ compensation judge explained that the accident becomes a diminishing possibility as an explanation when ten months intervene between the accident and the complaints and disability.

While Mr. David and his wife testified that he suffered with neck pain after the accident and had to take an extreme amount of Ibuprofen to alleviate the pain, the workers’ compensation judge was very adamant that she did not place stock in the testimony. The workers’ compensation judge explained that “[i]n order to accept that an injured worker can work his full duty without restriction, without complaint, and without medical treatment for 10 months, some higher degree of credibility and corroboration would be expected than was observed by the [workers’ compensation judge].”

IfiOnly Mr. David and his family offered any proof of a disability following the accident. Mr. David testified that he started having headaches two to three days after the accident and his left shoulder started bothering him. As long as he was taking Ibuprofen, he could manage. His pain was never below a nine out of ten every day. Mr. David’s wife Cynthia testified her husband had a headache when he got home after the accident. She testified that he would take twenty Ibuprofen pills at a time, every four hours, to relieve the pain. He did this every day after the accident. Yet, he never sought medical treatment during this time period. Mrs. David explained that her husband continued working because they were experiencing financial difficulties due to a repayment plan bankruptcy. Mr. David’s daughter and son-in-law, who live with him, testified that he was fine before the accident and in a lot of pain after the accident.

Mr. David’s supervisor and several coworkers testified at the hearing. Testimony revealed that Mr. David never complained about his neck or back hurting while working. Mr. David had to use a manual tarp to cover the load on his truck. He would have to operate a hand crank to get the tarp in place every day he had load to deliver. He coworkers saw him working this hand crank by himself on many occasions. Mr, David was also responsible for maintenance on his vehicle like changing the oil or tires. Mr. David would also sometimes drive five to six hours at a time, depending on where he had to deliver materials. On occasion, Mr. David would run the front-end loader and help move culverts. Just before Mr. David quit, he was working full time with overtime.

Mr. David’s testimony about his injury, his previous back injury, and the circumstances involving the timing of his workers’ compensation claim all cast serious doubt on Mr. David’s testimony. Other than Mr. David’s own self-serving 17testimony and that of his family, there is no other testimony that Mr. David suffered with such serious neck problems after the accident. While a co-worker testified that he saw Mr. David taking Ibuprofen pills all the time after the accident, he also saw him taking Ibuprofen before the accident. Even though Mr. David and his wife testified that the pain was so bad he had to take twenty Ibuprofen pills every four to six hours every day, Mr. David continued to work after the accident for ten months. He had to drive long hours, change an occasional tire, hand crank the tarp on the truck, and even move some pipe. He never complained to anyone at work that his neck hurt. It was not until Mr. David quit his job and was denied disability that hie decided to seek medical attention. Due to his lack of credibility, it is possible that some intervening cause could have occurred in the ten months after the accident that Mr. David failed to disclose which caused his injury. It is also possible that he was in pain before the accident since a coworker observed him taking Ibuprofen pills before the accident. We find no manifest error in the workers’ compensation judge’s decision that Mr. David failed to establish that he suffered an injury as a result of the accident. •

The judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to Harris David.

AFFIRMED.


author: CONERY, Judge.

text:
    Robert VEROLINE, Jr., et al. v. PRIORITY ONE EMS, et al.
    No. CA 13-865.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Gregory Engelsman, Bolen, Parker, Brenner, Lee & Engelsman, Ltd., Alexandria, Louisiana, for Defendants/Appellees, C.R.R. Enterprises, Inc. d/b/a Priority • One, Phillip Hutson, Stewart Coleman.
    Leslie R. Leavoy, Jr., Leavoy Law Office, DeRidder, Louisiana, for Plaintiff/Appellant, Robert Veroline, Jr., Cindy Vero-line, Joshua Paul Veroline.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   CONERY, Judge.

|, FACTS AND PROCEDURAL HISTORY

On July 4, 2005, Heather Veroline dislocated her knee while near the dam on Toledo Bend Reservoir, Texas side. Paramedics Phillip Hutson and Stewart Coleman arrived at the scene and, according to their testimony, Ms. Veroline was in severe pain. While Mr. Hutson prepared the ambulance and retrieved supplies, Mr. Coleman immobilized her knee, placed her on a gurney, and carried her about 1,000 yards to the ambulance. Both paramedics testified that Ms. Veroline and her mother requested that they administer pain medication. Mr. Coleman then administered morphine for the pain and phenergan to prevent the side effects of morphine, both through an IV. Shortly thereafter, Ms. Ve-roline gasped as if she was going to vomit.

She then began shaking, gasping, and she went into ventricular fibrillation. Mr. Coleman administered narcan to reverse the effects of the morphine. He commenced chest compressions and Ms. Vero-line projectile vomited. Mr. Coleman performed CPR, administered epinephrine, manually evacuated the vomit, and attempted to intubate and defibrillate her without success. He continued to perform CPR and attempted to defibrillate her until they arrived at the hospital, where she was pronounced dead shortly thereafter.

Ms. Veroline’s parents, Robert and Cindy Veroline, and brother, Joshua Veroline, filed suit against C.R.R. Enterprises, Inc. d/b/a Priority One and the paramedics, Phillip Hutson and Stewart Coleman, alleging negligence, as they purportedly breached the standard of care. After a five-day jury trial and a short jury deliberation, the jury returned a verdict for defendants. Plaintiffs timely filed a motion for a new trial and a judgment notwithstanding the verdict, which were |2both denied by the trial court. The plaintiffs appeal, asserting two assignments of error. For the following reasons, we affirm.

ASSIGNMENTS OF ERROR

I. The jury was manifestly erroneous by failing to find that the insertion of an IV and administration of morphine with phenergan violated the defendants’ own written protocols and was therefore negligent or grossly negligent.
II. The jury was manifestly erroneous by failing to find that the defendants’ failure to follow their own written protocols to treat allergic reactions immediately with epinephrine, not narcan was negligent or grossly negligent.

LAW AND ANALYSIS

“[A]ppellate jurisdiction of a court of appeal extends to law and facts.” La. Const, art. 5, § 10(B). The appellate court must determine whether the trial court committed an error of law or made a factual finding that was manifestly erroneous or clearly wrong. Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000). The reviewing court must review the record in its entirety to make this determination. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). “Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.”

Id. at 882.

This court has stated, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. at 883. See Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3 Cir. 11/2/00), 774 So.2d 1022. Additionally, “When the district court has permitted laboth parties to present their experts before making its factual determinations, the fact finder’s choice of alternative permissible views cannot be considered to be manifestly erroneous or clearly wrong.” Houssiere v. ASCO USA, 12-791, p. 12 (La.App. 3 Cir. 1/16/13), 108 So.3d 797, 805-6 (quoting Dumesnil v. Sw. La. Elec. Membership Corp., 08-982, p. 6 (La.App. 3 Cir. 2/4/09), 2 So.3d 1254, 1258), writ denied, 13-694 (La.5/17/13), 118 So.3d 377. Furthermore, “[w]here the testimony of expert witnesses differ, it is for the trier of fact to determine the most credible evidence and a finding of fact in this regard will not be overturned absent manifest error.” Smith v. Cappaert Manufactured Hous., Inc., 11-1464, p. 11 (La.App. 3 Cir. 4/10/12), 89 So.3d 1234, 1242-3 (quoting Opelousas Prod. Credit Ass’n v. B.B. & H., Inc., 587 So.2d 812, 814 (La.App. 3 Cir.1991)), writs denied, 12-1418 (La.10/8/12), 98 So.3d 857 and 12-1516 (La.10/12/12), 98 So.3d 871. See also Revel v. Snow, 95-462 (La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ denied, 95-2820 (La.2/2/96), 666 So.2d 1084. “The only time [the trial court’s decision to accept the opinion of one expert and to reject that of another] will be deemed manifestly erroneous is when the court was clearly wrong in accepting the expert’s opinion on which it relied.” Tullis v. Rapides Parish Police Jury, 95-905, p. 8 (La.App. 3 Cir. 1/17/96), 670 So.2d 245, 250.

In this case, the appellants assert two assignments of error, both alleging that the jury was manifestly erroneous in its factual findings. Appellants do not contend, nor is there evidence in the record to support, that the trial court was erroneous in accepting the three experts and their opinions. The assignments of error concern Mr. Coleman’s administration of morphine and phenergan, followed by narcan, and eventually epinephrine. Each drug administration or the timing thereof was allegedly in violation of appellee’s own written protocols. Because |4both assignments of error allege that the jury was manifestly erroneous in its factual findings, they will be discussed together.

At trial, the jury heard the testimony of several fact witnesses and three expert witnesses. Dr. John McMillan testified as plaintiffs only expert witness. He testified that, according to the defendants’ own protocols, Mr. Coleman should not have administered morphine, should not have followed up with narcan, but should have administered epinephrine immediately upon Ms. Veroline’s reaction. He further testified that Ms. Veroline did not demonstrate all of the symptoms of anaphylaxis, but that all of the symptoms and manifestations are not required for an anaphylaxis determination. Dr. McMillan concluded that Ms. Veroline died from morphine ana-phylaxis. He further concluded that Mr. Coleman breached the standard of care and his course of treatment was a direct causal relationship to the morphine ana-phylaxis and ultimately Ms. Veroline’s death.

The appellees presented the jury with two expert witness as’* trial, Dr. James “Butch” Knoepp and Dr. Thomas Arnold. Dr. Knoepp testified that an anaphylactic reaction to morphine is “unusual.” He further testified that he “searched high and low for evidence of anaphylaxis,” but he could find none. Disagreeing with Dr. McMillian, Dr. Knoepp testified that ana-phylaxis is a “cascade of events,” which means that he is of the opinion that a patient is “not going to have just the trachea closing down-.without other parts of the body swelling, redness, manifesting.” Dr. Knoepp acknowledged that the administration of narcan was not in appellees’ protocol, but that “it was a thoughtful response.” Dr. Knoepp concluded that he thinks that Ms. Veroline “died from ventricular fibrillation and the inability to defi-brillate her.” He testified that he does not | fibelieve that Mr. Coleman breached the standard of care and stated that “this poor guy was a one-man band playing five instruments.”

Dr. Arnold testified that a dislocated knee would be “extremely uncomfortable” and “quite painful.” He testified that he did not have a problem with the administration of morphine. Regarding the nar-can, he stated that he “would have done the same thing.” He further testified that he did not think Ms. Veroline had an ana-phylactic reaction, as it was not systemic or an “anaphylaxis picture.” Dr. Arnold opined that Ms. Veroline had an adverse reaction to one of the medications given to her, but it was a reaction different from anaphylaxis. He stated that Mr. Coleman did an “admirable job.” Dr. Arnold concluded that the standard of care was upheld.

The fact finder in this case, the jury, was presented with several alternative permissible views of what occurred on the day of Ms. Veroline’s death. The jury found that the defendants had not breached the standard of care, apparently adopting some or all of the defense’s expert’s views. The jury decided which experts were credible and its adoption of those opinions cannot be considered manifestly erroneous. Therefore, we affirm.

DISPOSITION

The jury was not manifestly erroneous in its conclusions, and for this reason, we affirm the judgment of the trial court.

AFFIRMED.

      . Although mentioned, the issues of the denial of appellants’ post-verdict motions and the allegedly "hurried” jury deliberation were not briefed. Thus, we will consider the issues abandoned. Uniform Rules- — Courts of Appeal, Rules 1-3 & 2-12.4.


author: AMY, Judge.

text:
    William K. ROGERS, Individually and o/b/o Martha Laverne Rogers v. HILLTOP RETIREMENT & REHABILITATION CENTER, et al.
    No. 13-867.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      John E. Morton, Morton Law LLC, Alexandria, LA, for Plaintiffs/Appellants, William K. Rogers, Individually and on behalf of Martha Laverne Rogers.
    Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellee, Devinder Verma, M.D.
    Jeremy C. Cedars, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellee, Hilltop Retirement & Rehabilitation Center.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   AMY, Judge.

hThe plaintiff alleges that his mother suffered injuries as a result of medical malpractice by a doctor and a nursing home. A medical review panel returned a unanimous opinion in favor of the doctor and the nursing home. Soon after the plaintiff filed suit, the defendants filed a motion for summary judgment, contending that the plaintiff could not prove either that the defendants breached the applicable standard of care or, if the standard of care was breached, that any injuries suffered by the plaintiffs mother were caused by the breach. The trial court granted the defendant’s motions and dismissed the plaintiffs claims. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, William K. Rogers, filed this suit “individually and on behalf of Martha Laverne Rogers.” According to the record, Ms. Rogers was a resident at a nursing home from 2007 until her death on April 10, 2010. Ms. Rogers had been admitted to the hospital in late March of 2010, where she was diagnosed with pneumonia and new-onset atrial fibrillation and underwent a bronchoscopy to clear a mucous plug. Ms. Rogers returned to the nursing home for hospice care shortly before her death.

Alléging that Ms. Rogers’ death was the result of medical malpractice, the plaintiff filed a request for a medical review panel in November of 2010 against Hilltop Retirement and Rehabilitation Center and Dr. Devinder Verma. In June of 2012, the medical review panel issued a unanimous opinion finding no breach of the standard of care on the part of either Hilltop or Dr. Verma. The plaintiff filed suit on October 3, 2012. Hilltop and Dr. Verma’s answers were filed by November |⅞13, 2012. Approximately one month after all answers were filed, both Hilltop and Dr. Verma filed motions for summary judgment, contending therein that the plaintiff could not meet his burden of proof with regard to either breach of the applicable standard of care, or a causal connection between any breach and Ms. Rogers’ injuries. A hearing on the motions for summary judgment was scheduled for February 25, 2013.

Contending that he would be able to meet his evidentiary burden, the plaintiff timely provided an affidavit from a nursing home administrator, Jake Lighten, LNHA, MHA. Therein, Mr. Lighten observed that, based on his review of Ms. Rogers’ medical records, on March 22, 2010, before her hospitalization, Ms. Rogers exhibited an abnormal sleeping pattern and was left in bed in a semi-responsive to non-responsive state. He opined that Hilltop staff failed to recognize the abnormal pattern and failed to assess or document it. Further, Mr. Lighten noted two gaps in Ms. Rogers’ medical records, one from February 23, 2010, to March 22, 2010, and one from January 15, 2010, to January 21, 2010. He stated that “[t]his lack of documentation led up to a hospitalization and a decline in condition.” Mr. Lighten also stated that “[a] nurse is responsible for knowing and following the recognized standard of care, which requires suctioning of the ET tube to avoid or remove the mucous plug.”

Thereafter, the plaintiff sought a continuance of the February 25, 2013 hearing and an extension of the deadline for filing an opposition. On February 19, 2013, the plaintiff filed a supplemental opposition to the motions for summary judgment and included the affidavit of Diane Brown-Bell, R.N. Therein, Ms. Brown-Bell enumerated what she considered to be a number of failings on the part of Hilltop’s nursing staff, including items such as “failure to administer Roxanol as |sper order for pain or shortness of breath” and “failure to notify attending physician, Dr. Renois, of change in condition[.]” Neither Mr. Lighten nor Ms. Brown-Bell’s affidavits address causation.

The trial court denied the plaintiff’s motion to continue and motion to extend the deadline for filing an opposition. Further, finding that Ms. Brown-Bell’s affidavit was untimely, the trial court struck her affidavit. Addressing the merits of the defendants’ motions for summary judgment, the trial court found that the plaintiff had not created any genuine issues of material fact with regard to any breach of the applicable standard of care by Dr. Verma or any issue concerning causation with regard to Hilltop. Accordingly, the trial court granted the defendants’ motions for summary judgment and dismissed the plaintiffs claims against them. The trial court denied a subsequent motion for new trial filed by the plaintiff.

The plaintiff appeals, asserting as error that:

1. A “de novo” review of the record herein warrants a reversal of both summary judgments because:
a. Consideration of defendants’ “expanded” summary judgment claims by the trial court violated Article 966(E) of the [Louisiana Code of Civil Procedure].
b. The trial court’s grant of defendants’ La.[Code Civ.P.] ■ Article 1425/Daubert objections to plaintiff’s opposing affidavits was contrary to law.
2. The trial court abused its discretion by:
a. Denying plaintiffs motion for additional time for late filed opposition expert affidavits, for additional discovery and/or a continuance particularly where no prejudice was shown by defendants. Lb. By refusing to admit into evidence the supplemental affidavits of Jake Lighten, LNHA, MHA and Diane Brown-Bell, R.N. wherein said expert witnesses addressed defendants’ credentials challenge.

Discussion

The Motion for Continuance and Late-Filed Affidavit

The plaintiff first contends that the trial court erred in denying his motion for continuance and/or for an extension of time in filing his memorandum in opposition to the defendants’ motions for summary judgment. The record indicates that, on January 10, 2013, the plaintiff filed a motion for continuance, alleging that no discovery had been conducted. Further, via facsimile filing on February 14, 2013, the plaintiff submitted a motion to extend deadline for filing opposition to the defendant’s motions for summary judgment. See La.R.S. 13:850. The trial court ultimately denied the plaintiffs motions. In so doing, the trial court noted that this litigation, including the medical review panel, had been instigated in 2010, thus providing the plaintiff with sufficient time to retain an expert.

“A continuance may be granted • in any case if there is good ground therefor.” La.Code Civ.P. art. 1601. The trial court’s decision whether to grant or deny a continuance is reviewed for abuse of discretion. Newsome v. Homer Mem’l Med. Ctr., 10-564 (La.4/9/10), 32 So.3d 800. The trial court may take into consideration such factors as diligence, good faith, reasonable grounds, fairness to both parties and the need for the orderly administration of justice. Ardoin v. Bourgeois, 04-1663 (La.App. 3 Cir. 11/2/05), 916 So.2d 329. Additionally, it is within the trial court’s discretion to issue summary judgment where discovery is not completed. Peterson v. City of Tallulah, 43,197 (La.App. 2 Cir. 4/23/08), 981 So.2d 192. However, the parties must be given “a fair opportunity to present their claims and, unless a plaintiff shows probable injustice, a suit should not be delayed | spending discovery when it appears at an early stage that there is no genuine issue of material fact.” Id. at 195.

Our review of the record indicates that the plaintiff has been pursuing his cause of action for more than two years, with approximately five months of that time occurring after suit was filed and before the hearing on the motions for summary judgment. Accordingly, we find no abuse of discretion in the trial court’s determination that the plaintiff had sufficient opportunity to conduct discovery and obtain appropriate expert testimony and in denying the motion for continuance.

The plaintiff also contends that the trial court erred in striking Ms. Brown-Bell’s affidavit as untimely. Citing Peoples State Bank v. Hwy One Crawfish, Inc., 99-1393, 99-1394 (La.App. 3 Cir. 5/24/00), 771 So.2d 101, writ denied, 00-2842 (La.12/8/00), 776 So.2d 469, the plaintiff argues that “only where defendants can prove prejudice, should the court exercise its discretion to exclude Ms. Brown-Bell’s affidavit.”

We find no merit to this argument. Louisiana Code of Civil Procedure Article 966(B)(1) (emphasis added) provides that “[t]he motion for summary judgment, memorandum in support thereof, and supporting affidavits shall be served within the time limits provided in District Court Rule 9.9.” Pursuant to La.Dist.Ct. Rule 9.9, opposition memoranda must be filed at least eight days before the hearing. Those time limitations are mandatory, and if an affidavit is filed untimely, the trial court may rule it inadmissible and exclude it from evidence. Phillips v. Lafayette Parish Sch. Bd., 10-373 (La.App. 3 Cir. 12/8/10), 54 So.3d 739. Although the trial court has some discretion to admit late-filed materials, the trial court’s decision to disallow the affidavits is not an abuse of discretion. Id.

|fiThe record indicates that Ms. Brown-Bell’s affidavit was not filed timely. Accordingly, we find no abuse of discretion on the part of the trial court in excluding it from evidence. Further, we observe that, contrary to the plaintiffs argument, Peoples State Bank states that “[o]nly if there is evidence that the opposing party will be prejudiced by the late introduction of the affidavits is it reversible error for a trial court to allow the affidavits to be filed.” 771 So.2d at 107; We find that the facts of this matter are distinguishable from the situation contemplated in Peoples State Bank and are inapplicable to this case.

The plaintiff's arguments in this regard are without merit.

Exclusion of Evidence at Motion for New Trial

The plaintiff also assigns as error that the trial court’s exclusion of the amended affidavits of Mr. Lighten and Ms. Brown-Bell at the hearing on the plaintiffs motion for new trial. However, the plaintiff failed to brief this issue. Uniform Rules, Courts of Appeal, Rule 2-12.4 states that “[a]ll specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Thus, we find that the plaintiff has abandoned this issue.

Motion for Summary Judgment

The plaintiff also complains that the trial court inappropriately granted the defendants’ motions for summary judgment. Specifically, he contends that the trial court erred in considering additional arguments posed by the defendants less than three days before the hearing on the motions. The plaintiff also argues that the trial court erred in disregarding the opinions of his expert witnesses.

The motion for summary judgment is favored in our law and shall be construed to secure the just, speedy, and inexpensive determination of actions. |7La.Code Civ.P. art. 966(A)(2). “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.Code Civ.P. art. 966(B)(2). The moving party bears the burden of proof. La.Code Civ.P. art. 966(C)(2).

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.

Id.

The appellate court reviews the grant or denial of motion for summary judgment de novo. C & C Energy, L.L.C. v. Cody Invs., L.L.C., 09-2160 (La.7/6/10), 41 So.3d 1134. Accordingly, the appellate court asks the same questions as the trial court should in determining whether summary judgment is appropriate — whether a genuine issue of material fact exists, and whether the moving party is entitled to judgment as a matter of law. Id. In the context of medical malpractice actions,

a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfiffner v. Correa, 1994-0924, 1994-0968, 1994-0992 (La.10/17/94), 643 So.2d 1228.

|8Samaha v. Rau, 07-1726, pp. 5-6 (La.2/26/08), 977 So.2d 880, 888-84. Expert testimony is also required to establish causation unless the causal connection between the breach of the standard of care and the plaintiffs damages are obvious. See Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228.

With regard to the plaintiffs contention that the defendants expanded the scope of their motions for summary judgment shortly before the hearing, we find no evidence in the record supportive of this assertion. The plaintiff contends that, because “medical causation” is not included as an undisputed fact and because neither of the defendants’ motions includes evidence concerning medical causation, the defendants have failed to meet their burden of proof with regard to lack of medical causation. As discussed more fully below, the defendants were not required to present evidence that they did not cause any of Ms. Rogers’ alleged damages. As the party not bearing the burden of proof at trial, they were only required to point out an absence of factual support for this element of the plaintiffs claim. La.Code Civ.P. art. 966(C)(2). Further, the record reveals that both Dr. Verma and Hilltop contended that the plaintiff would be unable to meet his burden of proof with regard to causation in their originally-filed motions for summary judgment.

The plaintiff also argues that causation is an issue for the factfinder, and not appropriate for determination during a motion for summary judgment. However, “[w]hile the question of causation is usually an issue for the factfinder’s determination, it is possible to determine this issue on summary judgment if treasonable minds could not differ.” Henderson v. Homer Mem’l Hosp., 40,585, p. 11 (La.App. 2 Cir. 1/27/06), 920 So.2d 988, 995, writ denied, 06^91 (La.5/5/06), 927 So.2d 316. Further, in order to defeat a motion for summary judgment, the plaintiff must show that they can meet their burden of proof for every element of the claim, including the element of causation. Robin v. Hebert, 12-1417 (La.App. 3 Cir. 5/1/13), 157 So.3d 63, 2013 WL 1809821 (unpublished opinion). Thus, we find that the element of causation was properly before the trial court and is an appropriate consideration in determining the defendants’ motions for summary judgment.

Another of the plaintiff’s arguments is that the trial court erred in disregarding the expert affidavits submitted in support of his opposition to the motions for summary judgment. He also contends that the trial court inappropriately rejected his experts without holding a Daubert hearing. As previously discussed, the trial court rejected Ms. Brown-Bell’s affidavit because it was untimely, and we find no error in the trial court’s ruling striking her affidavit from evidence. Further, because the record indicates that the trial court considered Mr. Lighten’s affidavit in ruling on the motion for summary judgment, we find no support in the record for the plaintiffs contention that the trial court should have held a Daubert hearing before rejecting Mr. Lighten’s affidavit.

With regard to the merits of the motions for summary judgment, the issue herein is less whether Mr. Lighten is qualified to offer an opinion as to causation as opposed to whether the plaintiff actually made a showing with regard to causation. The initial burden of proof in the motions for summary judgment was on the defendants, who had to point out an absence of evidence for one or more of the essential elements of the plaintiffs claim. La.Code Civ.P. art. 966(C)(2). The defendants contended that the plaintiff could not meet his burden with regard to |10either the existence of a breach of the applicable standard of care or whether any alleged breach caused Ms. Rogers’ alleged damages. The defendants attached a copy of the medical review panel’s opinion in support of their contentions. We do not reach the issue of breach of the applicable standard of care because our review of the record indicates that the defendants met their burden of proof with regard to causation.

The facts of this case do not involve an act of such obvious negligence that causation can be inferred under the circumstances. See Miller v. Tulane Univ. Hosp., 09-1740 (La.App. 4 Cir. 5/12/10), 38 So.3d 1142. The record shows that, in opposing the motions for summary judgment, the plaintiff offered no evidence concerning causation, via expert testimony or otherwise. Although Mr. Lighten’s affidavit identifies several areas in which he identifies an alleged breach of the applicable standard of care, the affidavit does not address causation with regard to either Dr. Verma or Hilltop. Therefore, we find that the plaintiff failed to rebut the defendants’ showing with regard to this essential element on their motions for summary judgment. The plaintiff having failed to meet his burden of proof, there is no genuine issue of material fact concerning causation and the defendants are entitled to judgment as a matter of law. Accordingly, the trial court was correct in granting the motions for summary judgment.

The plaintiffs arguments concerning summary judgment are without merit.

luDECREE

For the foregoing reasons, we affirm in all respects the judgment of the trial court granting the motions for summary judgment filed by the defendants, Hilltop Retirement & Rehabilitation Center and Dr. Devinder Verma. Costs of this appeal are allocated to the plaintiff, William K. Rogers.

AFFIRMED.

      . Ms. Rogers is also referred to as "Martha Lavergne Rogers” in the record.

      . According to the record, Ms. Rogers changed her choice' of primary physician from Dr. Verma to Dr. Daniel Renois in December of 2009.

      . For instance, in Hilltop’s motion for summary judgment, Hilltop stated that ”[t]here is no evidence to support the allegations that: 1) Hilltop Retirement & Rehabilitation Center deviated from the appropriate standard of care or 2) caused this patient harm.” Similarly, in Dr. Verma’s motion for summary judgment, Dr. Verma stated ”[i]n this case, the plaintiff has failed to present expert evidence to prove the essential elements of his claim that Dr. Verma breached the standard of care and/or caused any alleged injuries.”

      . We note that the plaintiff points to Mr. Lighten’s statement that the lack of documentation "led up to a hospitalization and a de-dine in condition.” However, this statement does not address causation and does not create a genuine issue of material fact.