author:
THIBODEAUX, Chief Judge.
      CONERY, J., GREMILLION, J.,

text:
    Joshua GODCHAUX, et ux. v. PEERLESS INSURANCE COMPANY, et al.
    No. 13-1083.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Gregory John Laborde, Lafayette, LA, for Defendant/Appellee Brian Campbell.
    Terry Bennett Loup, Roderick A. James, Morris Bart, LLC, New Orleans, LA, for Plaintiffs/Appellants Joshua God-chaux and Anna Godchaux.
    Patrick Craig Morrow, Sr., Morrow, Morrow, Ryan & Bassett, Opelousas, LA, for Defendant/Appellee Brian Campbell.
    Larry Lane Roy, Preis & Roy, Lafayette, LA, for Defendant/Appellee Gilchrist Construction Co.
    David Thomas Butler, Jr., Funderburk & Butler, Baton Rouge, LA, for Defendant/Appellee Brian Campbell.
    Michael M. Thompson, Law Offices of Keith S. Giardina, Baton Rouge, LA, for Defendants/Appellees Brian Campbell, Moody Price, LLC, and Peerless Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, J. DAVID PAINTER, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

|, Debris from a flipping truck struck the vehicle of an on-duty deputy for the St. Landry Parish Sheriffs Office. The deputy and his wife brought suit against the driver, his employer and its insurer, alleging that the crash caused severe injuries to the deputy’s back. At trial, the defendants presented the testimony of Dr. Charles Bain, an alleged biomechanics and causation analysis expert, who testified that the low-impact accident did not cause the deputy’s injuries. At the conclusion of the trial, the jury found the defendants Hable and awarded the deputy $236,165.00 in past medical expenses, $82,665.00 in past lost wages, $100,000.00 in future medical expenses, and $100,000.00 for pain and suffering. The jury further awarded $3,000.00 in loss of consortium damages to the deputy’s wife. The deputy and his wife now appeal the judgment of the trial court, alleging that the court improperly admitted Dr. Bain’s testimony as it did not meet the Daubert standards for admissibility. Furthermore, they argue that the jury erred in failing to provide sufficient damage awards for future medical expenses, future lost wages and lost earning capacity, pain and suffering, loss of enjoyment of life, and loss of consortium. For the following reasons, we reverse the judgment of the trial court regarding the admission of Dr. Bain’s testimony and amend the jury’s quantum award.

I.

ISSUES

We shall consider:

(1) whether the trial court erred by admitting Dr. Bain’s testimony as a biomechanics and causation analysis expert;
h(2) whether the jury erred by only awarding plaintiffs $100,000.00 for future medical expenses;
(3) whether the jury erred by failing to award plaintiffs any damages for future lost wages or earning capacity;
(4) whether the jury erred by faffing to award plaintiffs any damages for loss of enjoyment of life;
(5) whether the jury erred by only awarding plaintiffs $100,000.00 for pain and suffering; and
(6) whether the jury erred by only awarding plaintiffs $3,000.00 for loss of consortium, services, and society.

II.

FACTS AND PROCEDURAL HISTORY

On November 24, 2010, Brian Campbell, an employee of Moody & Price, L.L.C. acting in the course and scope of his employment, was driving northbound on Interstate-49 when he lost control of his truck and flipped, causing the truck to cross the median towards southbound traffic. As a result of the crash, pieces of the headache rack on Mr. Campbell’s truck flew off and struck a Chevrolet Tahoe driven by Joshua Godchaux, an on-duty deputy for St. Landry Parish Sheriffs Office. Mr. Godchaux was struck by broken glass in the head and neck, and was taken to the emergency room where he was treated and released.

A week later, Mr. Godchaux visited Dr. Craig Matherne, complaining that he suffered from neck pain and headaches. Then, two weeks after the accident, Mr. Godchaux complained of low-back pain. Dr. Matherne ordered an MRI, which showed evidence of herniation and bulging discs. Dr. Matherne then recommended that Mr. Godchaux visit Dr. William Brennan, a neurosurgeon, for treatment. Dr. Brennan initially treated Mr. Godchaux with steroid injections and |spain medication, but when Mr. Godchaux began showing symptoms of foot drop and his legs giving out, Dr. Brennan performed surgery.

After surgery, Mr. Godchaux continued to experience low-back pain. After injections failed to provide relief, he visited Dr. Michael Haydel, who implanted a temporary spinal cord stimulator. When this course of action proved to be effective in alleviating his pain, Dr. Haydel referred Mr. Godchaux to Dr. Alan Appley, who implanted a permanent spinal cord stimulator.

Since he was unable to return to his job as deputy because of his injuries, Mr. God-chaux accepted a lower-paying clerical position at Atchafalaya Measurements in June 2012. The Sheriffs Office offered him a light-duty position in August 2012, but Mr. Godchaux rejected the position.

Mr. Godchaux, and his wife, Anna God-chaux, filed suit against Mr. Campbell, Moody & Price, and its insurer, Peerless Insurance Company, seeking damages for the injuries caused by the auto accident. During discovery, the defendants identified Dr. Charles Bain as an expert witness in biomechanics and injury causation analysis. The plaintiffs filed a motion in limine to exclude Dr. Bain’s testimony on the grounds that he did not qualify as an expert and his methods were unreliable. The trial court rejected the motion and allowed Dr. Bain to testify at trial.

III.

STANDARD OF REVIEW

Official Comment (d) of La.Code Evid. 702 states that “[b]road discretion should be accorded the trial judge in his determination as to whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert.” As such, a trial court’s decision to admit or |4exclude expert testimony is subject to an abuse of discretion standard of review. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); State v. Craig, 95-2499 (La.5/20/97), 699 So.2d 865, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). If the appellate court finds that the evidence was improperly admitted, it may conduct a de novo review only if the improperly admitted evidence prevented the jury from making a fair and impartial determination of a disputed fact. See Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La.3/16/10), 35 So.3d 230.

IV.

LAW AND DISCUSSION

Admissibility of Dr. Bain’s Testimony

Mr. and Mrs. Godchaux argue that the trial court erred in admitting Dr. Bain’s testimony since he did not qualify as an expert in biomechanics and causation analysis and his opinions and analytical methods were unreliable. While Dr. Bain likely qualifies as an expert in biomechan-ics, we agree that his testimony should have been excluded as his methods were unreliable and his testimony does not assist the jury in determining any material facts.

Louisiana Code of Evidence Article 702 states that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Considering Article 702 follows the Federal Rules of Evidence, we must consider the Supreme Court’s guidance in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), where the Court reasoned that trial courts perform a necessary gate-keeping function by deciding whether expert testimony is reliable and relevant. The Daubert Court further reasoned that trial courts should consider the following factors when admitting expert testimony: 1) “whether [the expert’s theory or technique] can be (and has been tested)[;]” 2) “whether the theory or technique has been subjected to peer review and publication[;]” 3) whether the theories are subject to “standards controlling the technique’s operation,” with particular consideration of “the known or potential rate of error[;]” and 4) whether the theory or technique is generally accepted in the scientific community. Id. at 593-94, 113 S.Ct. 2786.

Noting that the Daubert analysis did not directly consider an expert’s qualifications, the Louisiana Supreme Court adopted the United States Eleventh Circuit Court of Appeal’s three-part inquiry from City of Tuscaloosa v. Harcros Chem., Inc., 158 F.3d 548 (11th Cir.1998), cert. denied, 528 U.S. 812, 120 S.Ct. 309, 145 L.Ed.2d 42 (1999) “to [provide] more comprehensive guidance to district courts determining admissibility of expert testimony[.]” Cheairs, 861 So.2d at 542. Under the Eleventh Circuit’s three-prong test, expert -testimony is proper only if:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa, 158 F.3d at 562.

Applying the three-prong test, we must first consider whether Dr. Bain is qualified to testify as an expert in biomechanics and causation analysis. | fiMr. and Mrs. God-chaux .argue that Dr. Bain is not a qualified expert in biomechanics and causation analysis since he has not practiced medicine in ten years, has never treated a patient in the United States, is not board certified in neurosurgery or orthopedics, has never taken undergraduate courses in biomechanics or accident reconstruction, and has never conducted on-site accident investigations. In rebuttal, the defendants argue that Dr. Bain is an expert considering he has an undergraduate degree in engineering, is a licensed physician, has completed a three-week program in accident reconstruction, has produced numerous causation reports, and has co-authored numerous papers in biomechanics.

The Louisiana Supreme Court has held that “experience alone is normally sufficient to qualify a witness as an expert[,]” and “the fact that a witness does not have a college degree does not disqualify him from testifying[.]” Cheairs, 861 So.2d at 542 (citing Manchack v. Willamette Industries, Inc., 621 So.2d 649 (La. App. 2 Cir.), writ denied, 629 So.2d 1170 (La.1993)). Notably, this burden is fairly low, as the supreme court does not require extensive experience or a particular type of experience; rather, the supreme court only requires that the expert have experience in the subject matter. This low burden is further supported by Article 702 as an expert need only have “knowledge, skill, experience, training, or education”. La.Code Evid. art. 702 (emphasis added). The use of the word “or” in the article implies that an expert need only have one of these traits to be qualified.

Here, Dr. Bain possessed experience in the fields of biomechanics and causation analysis, given he was a physician and an engineer, and he participated |7in an accident reconstruction program. Furthermore, he produced numerous papers on biomechanics and accident reconstruction. While he did not major in biome-chanics or become board certified in neurosurgery or orthopedics, the lack of a college degree and certification are not automatic grounds for disqualification. As experience alone is sufficient to qualify a witness as an expert, Dr. Bain satisfies the first-prong of the expert-testimony analysis.

We now must consider whether Dr. Bain’s methodology for reaching his conclusions on causation were sufficiently reliable to satisfy a Daubert analysis. Specifically, we must determine whether Dr. Bain’s methods were testable, subject to peer review, have a known rate of error, and are generally accepted by the community.

In reaching his opinions regarding causation, Dr. Bain reviewed the accident report, live video of the accident, images from the Tahoe, repair estimates, depositions, and medical records. He also conducted a comparative analysis of force applied to a Lexus automobile in order to determine the level of force in the accident involving the Tahoe. However, he never spoke to Mr. Godchaux, never contacted any of the treating physicians, never visited the scene of the accident, never inspected the Tahoe personally or talked with the damage appraiser, and did not know the body position of the plaintiff at the time of impact. Furthermore, Dr. Bain did not consider the angle of impact or the dimensions of the headache rack in any calculations.

In assessing his methodology, Dr. Bain has not proven that his conclusions are reliable. While our court has held that an expert need not perform an independent investigation of the accident as such determinations focus on Iscredibility of testimony and not admissibility, the record does not contain any evidence regarding whether his means of data collection, mathematical process, or comparative Lexus study have been peer reviewed or accepted in the communities of biomechanics and accident reconstruction. Considering Dr. Bain did not even re-create the actual accident in reaching his conclusions and only relied on a crash analysis of a different make and model to assess the force asserted on the Tahoe, his findings are inherently suspect without evidence of support from the scientific community. Even if we assume his comparative methods are reliable, Dr. Bain never testified as to the reliability or potential errors in the initial Lexus crash analysis, so the comparative data is also inherently suspect. While not all experts are created equal and may often be assessed on credibility grounds, Daubert and its progeny still mandate unsubstantiated methodology that is patently unsound be stricken to protect the sanctity of the fact finding process. See Ryan v. Zurich Am. Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214. As Dr. Bain failed to show how any of his findings conform to accepted scientific principles in line with Daubert, his methodology is inherently unreliable and should have been excluded.

Even if Dr. Bain’s methodology were reliable, his testimony still should have been excluded as it does not assist the jury in determining a fact in issue. Dr. Bain’s testimony involves a discussion of whether the force of impact in this accident could have caused the injury to Mr. Godchaux. Specifically, Dr. Bain testified that the force of impact to the Tahoe, given the little amount of damage to the vehicle, was too slight to cause injuries to Mr. Godchaux’s back. However, this court in Davis v. Martel, 00-1727, p. 7 (La.App. 3 Cir. 7/18/01), 790 So.2d 1/767, 772, writ denied, 01-2399 (La.11/21/01), 801 So.2d 1087, adopted the reasoning of the second circuit in concluding that force-of-impact testimony cannot be used to prove the extent of injuries: State Farm Mutual Auto. Ins. Co., 188 So.2d 166, 167 (La.App. 2 Cir.1966), persuasively held:

[Plaintiff] argues the trial court erred in concluding, “the impact to which the plaintiffs vehicle was subjected to could not have resulted in any injury to her.” To accept such premise, the trial court essentially is holding that a low estimate of property damage equals minimal impact and therefore minimal injuries or no injuries. The [Louisiana] Second Circuit Court of Appeal in Seegers v.
It is strenuously urged that the force of impact was so slight it could not have caused the injuries of the nature and extent complained of by the plaintiff, Ms. Seegers. This argument, in part is based upon the evidence and the record to reflect that the only damage to the rear of the Seegers’ automobile was the breaking of the tail pipe bracket and a small dent in the rear bumper requiring a cost of repairs of only $448.88. While it is indisputable [sic] true that the impact as [sic] slight, we think it would be dangerous precedent to attempt to measure the degree of injuries in direct proportion to the force of the collision. The testimony of both the medical expert and the lay witnesses established the fact that Ms. Seegers did sustain some injuries and the minimal force of the collision is, therefore, of no material importance.

Since our circuit does not accept force-of-impact testimony to prove causation, the majority of Dr. Bain’s testimony was prejudicial as it could lead the jury to reach improper conclusions of fact. As such, the testimony does not satisfy the third Improng of the Eleventh Circuit’s test and should have been excluded. As such, we conclude that the trial court abused its discretion in admitting the testimony into evidence.

De Novo Review of Liability

As Dr. Bain’s testimony was used for purposes of deciding the essential issue of causation, we conclude that its admission potentially prejudiced the jury leading to an inconsistent jury award, and thus, de novo review is warranted. See Brewer, 35 So.3d 230. Considering the evidence in the record without Dr. Bain’s testimony, there is no dispute that Mr. Campbell was negligent in driving his truck which led to the accident with Mr. Godchaux. The only real question is whether the accident caused Mr. God-chaux’s back injuries. We believe it did. While the defendants have pointed to medical records indicating that Mr. Godchaux suffered from pre-existing back pain, this pain did not necessitate multiple surgeries and the inability to work as a deputy police officer. It was only after the accident that significant medical treatment was needed, which indicates that the accident at the very least aggravated the injury. Moreover, the doctors who cared for Mr. God-chaux all testified that this accident likely caused the injuries. As such, we find the defendants liable on the merits.

De Novo Review of Quantum

| ^Future Lost Wages and Lost Earning Capacity

Mr. Godchaux alleges that the jury erred in failing to award any damages for future lost wages and earning capacity. We disagree. Our court in Batiste v. New Hampshire, 94-1467, pp. 3-4 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ denied, 95-1413 (La.9/22/95), 660 So.2d 472, has provided guidance on assessing this area of quantum:

Loss of earning capacity is not the same as lost wages. Rather, earning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiffs earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiffs lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity. Hoogood v. Aucoin, 574 So.2d 344 (La.1990).
In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages him in the work force. The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition. Finnie v. Vallee, 620 So.2d 897 (La.App. 4 Cir.), writ denied, 625 So.2d 1040 (La.1993).
The very nature of lost earning capacity makes it impossible to measure the loss with any kind of mathematical certainty. The facts of each case must take into account a variety of factors, including the plaintiffs condition prior to the accident, his work record prior to and after the accident, his previous earnings, the likelihood of his ability to earn a certain amount but for the accident, the amount of work life remaining, inflation, and the plaintiffs employment opportunities before and after the accident. Finnie, 620 So.2d at 901.

|12Here, Mr. Godchaux argues that his future earning capacity was diminished as he was forced to take a clerical position at Atchafalaya Measurements which paid less than the St. Landry Parish Sheriffs office. However,' this argument fails to consider that Mr. Godchaux turned down a light-duty position in the Sheriffs office that carried with it the possibility for advancement. Furthermore, in regards to his position at Atchafalaya Measurements, Mr. Godchaux testified that he felt he could occupy the role of manager tomorrow. While neither of these situations amount to certainties, the fact that there is a potential to earn as much income as he did prior to the accident indicates that there is no lost earning capacity. As such, Mr. God-chaux is not entitled to an award for future lost wages and earning capacity.

Future Medical Expenses

Mr. Godchaux contends that the jury erred in only awarding $100,000.00 in future medical expenses. We agree. Awards for future medical expenses constitute special damages which can be established with some degree of mathematical certainty. Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, writ denied, 04-2692 (La.2/18/05), 896 So.2d 31. At trial, Dr. Haydel testified that Mr. Godchaux would need to attend doctor visits for his injuries every two to three months which would amount to a cost of $600.00 to $900.00 per year. Mr. Godchaux also presented evidence that for every $1,000.00 of annual costs, | isthe lifetime future expenses would amount to $72,569.00. The defendants have presented no evidence to contradict these values. As $600.00 is 60% of $1,000.00, we reason that Mr. Godchaux’s future medical expenses for doctor visits would be at least 60% of $72,569.00, which is $43,541.00. In addition, Mr. Godchaux presented uncon-tradicted evidence that the lifetime cost of spinal stimulator replacements would amount to $199,292.00. Given these values, we find that Mr. Godchaux’s award for future medical expenses should be increased from $100,000.00 to $242,833.00.

Loss of Enjoyment of Life and Pain and Suffering

Mr. Godchaux argues that the jury erred in failing to award any damages for loss of enjoyment of life and in awarding only $100,000.00 for pain and suffering. We agree.

Loss of enjoyment of life is a component of general damages that compensates for “detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formally enjoyed.” McGee v. A C and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770. Here, it is clear that Mr. Godchaux has suffered detrimental alterations to his lifestyle as a result of his injuries. He suffers from continued pain, fatigue, and can no longer participate in many social activities he loves, such as hunting and fishing. Furthermore, his marriage and sex life have suffered greatly. Finally, he was forced to give up his career as an on-duty police officer. In Clement v. Citron, 13-63 (La. App. 3 Cir. 6/19/13), 115 So.3d 1260, we awarded $30,000.00 for loss of enjoyment of life to a woman who suffered severe back injuries and could no longer participate in household chores or enjoy numerous social activities she |14loved. As we feel the strains on Mr. Godchaux’s life are even greater than in Clement given his passion for his career, we award $50,000.00 for loss of enjoyment of life.

As for pain and suffering awards, “a court must consider the severity and duration of the injured party’s pain and suffering” in making its assessment. For example, in Melancon v. Lafayette Ins. Co., 05-762 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, writ denied, 06-974 (La.6/16/06), 929 So.2d 1291, this court upheld a general damages award of $550,000.00 for a patient who suffered a disc injury requiring a laminec-tomy. That patient suffered permanent nerve damage, sexual dysfunction, depression, and continued neuropathic pain down his right leg. Although recommended, that patient also had not received a spinal stimulator to relieve the pain. While Mr. Godchaux’s injuries are certainly similar to those suffered by the patient in Melancon given the numerous surgeries (including a laminectomy) and the continued chronic pain, they were not as severe as Mr. God-chaux did not suffer from sexual dysfunction or neuropathic pain or any diagnosed depression. In addition, Mr. Godchaux’s pain has been relieved to a certain extent given the spinal stimulator. Still, we feel an award of only $100,000.00 is inadequate given the duration and scope of Mr. God-chaux’s pain. We, therefore, increase his award for pain and suffering to $150,000.00.

Loss of Consortium

Mrs. Godchaux argues that the jury erred in only awarding $3,000.00 for loss of consortium. Again, we agree. Our court has previously reasoned that “[l]oss of consortium is more than just a loss of general overall happiness, it also includes love and affection, society and companionship, sexual relations, the right |iaof performance of material services, the right of support, aid, and assistance, and felicity.” Bellard v. S. Cent. Bell Tel. Co., 96-1426, p. 21 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, 707 (citations omitted), writ denied, 97-2415 (La.12/12/97), 704 So.2d 1202. Here, Mrs. Godchaux has suffered greatly as a result of Mr. Godchaux’s injury, as her sex life is virtually nonexistent, she sleeps in a separate bed, Mr. Godchaux cannot help with daily chores, and he is withdrawn and depressed. Consequently, we find that the loss of consortium award should be increased to $20,000.00.

V.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s admission of Dr. Bain’s testimony into evidence as Dr. Bain’s testimony was not scientifically valid and was unreliable. We further amend the quantum award by increasing the award for future medical expenses to $242,833.00, increasing the award for pain and suffering to $150,000.00, increasing the award for loss of enjoyment of life to $50,000.00, and increasing the award for loss of consortium to $20,000.00. Costs of this appeal are assessed against the defendants.

REVERSED IN PART AND AMENDED IN PART.

GREMILLION, J., concurs in part, dissents in part, and assigns written reasons.

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

CONERY, J.,

concurs in part and dissents in part.

_JjI agree with the majority’s ultimate holding that the testimony of Dr. Bain should have been excluded. I would exclude his testimony based on a finding that the defendants have not established that there is an accepted field of expertise in “causation analysis.” While Dr. Bain may have been qualified as an expert in “biome-chanics” and “accident reconstruction,” the record before us does not support that he performed any tests, examined the specific vehicles, or performed or reviewed any “crash tests” specific to this case. I agree that Dr. Bain’s opinion should have been excluded on that basis.

I disagree with the majority’s analysis that the exclusion of Dr. Bain’s testimony required a de novo review of the jury verdict. I do not find that “the improperly admitted evidence prevented the jury from making a fair and impartial determination of a disputed fact.” See Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La.3/16/10), 35 So.3d 230.

The major thrust of Dr. Bain’s testimony was that the impact was so slight that it could not have caused injury to Mr. God-ehaux’s lumbar spine. The dash cam video on Mr. Godehaux’s vehicle was reviewed by the jury, thus enabling the jury to see the relatively minor nature of this “collision.” Evidence as to minimal |?property damage further supports the conclusion that this was a minor impact collision. The jury heard medical evidence that the collision aggravated a pre-existing back condition. The jury award reflects that the jury discredited Dr. Bain’s testimony, as the jury did award all the past medical expenses totaling $236,150.00 for the plaintiffs lumbar surgery and treatment. The jury also awarded $100,000.00 in future medical expenses, $82,665.00 in past lost wages, $100,000.00 in pain and suffering, and $3,000.00 in loss of consortium to Mrs. Godchaux, for a total amount of $521,830.00 in damages. The jury award, in my view, was quite generous for aggravation of a pre-existing back condition from a minor impact collision, especially where the record demonstrates credibility problems with the plaintiffs testimony.

There was ample evidence in the record that plaintiff had failed to report a long history of prior back complaints to his medical providers. The dash cam video shows no significant displacement of Mr. Godehaux’s vehicle. Mr. Godchaux was easily able to pull to the side of the road without further incident.

Mr. Godehaux’s trial testimony that he ducked and bent his torso to the right was impeached by his deposition testimony that he blacked out and couldn’t remember what happened to him. He first reported to his doctors that he was “in a head on collision,” implying a far more serious event than that “caught on tape.”

At trial, Mr. Godchaux claimed that his primary injury was to his lumbar spine, yet he did not complain of low back pain when he visited the emergency room or to various physicians he consulted during the two week period following the accident.

Dr. Brennan was first consulted for complaints of low back pain on December 20, 2010, nearly one month after the accident. Mr. Godchaux did not [¡¡inform Dr. Brennan of his long history of low back complaints.

At trial, the jury heard evidence and testimony that Mr. Godchaux suffered from low back pain for many years and had documented complaints of low back pain as late as two weeks before the accident in 2010. He was treated for low back pain in 2008, and in 2009, he was treated for low back pain that radiated into his right leg, the same complaints he gave to Dr. Brennan. Most importantly, as to credibility, the jury heard testimony that Mr. Godchaux failed to disclose these prior back problems to his medical providers. Dr. Brennan performed surgery on Mr. Godchaux only after Mr. Godchaux claimed that he fell when his leg gave out on January 3, 2011.

The majority’s decision to substitute its judgment for that of the jury and award money for specific elements of damages that the jury refused to award, increase specific damage awards and affirm other specific awards made by the jury clearly exemplifies why courts of appeal should not attempt to micromanage jury verdicts. The jury heard all the evidence, and, based on the record, could just as easily have found that Mr. Godchaux’s pre-exist-ing low back injury was not aggravated to the extent that the accident caused his surgical treatment or loss of earnings and other damages. Instead, it awarded all of his past medical expenses, $100,000.00 for future medical expenses, $100,000.00 in general damages, all of his past loss of earnings, as well as $3,000.00 for Mrs. Godchaux’s loss of consortium. The majority increased the damages by $259,833.00 for a total damage award of $781,663.00.

In light of the minor nature of this collision and the impeachment of Mr. God-chaux before the jury, I find that the jury’s award, though generous, is not an abuse of its vast discretion. Damage awards are factual findings by a jury. Under |4the facts and circumstances of this case, great deference must be given to the jury’s factual findings. See Guillory v. Saucier, 11-745 (La.App. 3 Cir. 12/7/11), 79 So.3d 1188, writ denied, 12-75 (La.3/9/12), 84 So.3d 554, and writ denied, 12-81 (La.3/9/12), 84 So.3d 555. I would affirm the jury’s award in its entirety.

GREMILLION, J.,

concurs in part and dissents in part.

hThe first major question that the majority needed to answer was whether the jury should have heard the testimony of Dr. Charles Bane. I agree with my colleagues; they should not have heard it.

Secondly, I break with my fellow dissenter, Judge Conery, and. agree with the majority, that Dr. Bane’s testimony prevented the jury from making a fair and impartial determination. Thus, the majority has correctly concluded that a de novo review is necessary.

Finally, I agree with the conclusions of the majority’s de novo review of liability. The subject accident did cause injury resulting in damages to Mr. Godchaux.

I turn from the majority de novo’s review of liability to its de novo review of damages. The majority reviewed both the special damages awarded by the jury (those damages susceptible to exact mathematical calculation), as well as the general damages (those damages not susceptible to exact mathematical calculation).

With regard to the special damages, I agree with the majority. Mr. Godchaux simply did not prove entitlement to either future lost wages or lost earning capacity. Furthermore, with regard to future medical expenses, I think the ^majority’s $142,833.00 increase to the jury’s award is extremely generous. Nevertheless, it does represent a fair and reasonable review of the record.

I disagree, however, with the manner in which the majority exploded the general damages. I, therefore, dissent.

My review of the record suggests that the jury was wise and certain when it awarded $100,000.00 in general damages. In fact, I agree with Judge Conery on this point. The jury’s award was “generous.”

The fact that the jury chose to award a nice, round, even number on the verdict form’s blank entitled “Pain and Suffering” does not make the award infirm. It does not make it “inconsistent.”

The fact that a verdict form has multiple blanks all purporting to award general damages, does not require a jury to multiply its intended award exponentially just to avoid leaving a few blanks.

In this case, the jury was sympathetic to the plaintiff in some areas, but was skeptical in others. That is what juries do, and that is what we want them to do. However, the majority’s review of this record completely excludes all possibility of skepticism. In fact, it removes the need for a jury altogether. It replaces the jury with a calculator.

My de novo review establishes that $100,000.00 for all general damages was appropriate. Likewise, it establishes that the $3,000.00 for loss of consortium was appropriate. I would increase the plaintiffs recovery in the area of future medicals from $100,000.00 to $242,833.00, as did the majority. In all other respects, I would affirm the jury’s various awards, and leave them unchanged.

Thus, I concur in part and dissent in part.

      . Official Comment (b) of the La.Code Evid. art. 702 states that "[t]his article follows Federal Rule of Evidence 702.”

      . See Taylor v. Progressive Sec. Ins. Co., 09-791 (La.App. 3 Cir. 4/7/10), 33 So.3d 1081, writ denied, 10-1024 (La.9/17/10), 45 So.3d 1044.

      . While we recognize that the first circuit in Fussell v. Roadrunner Towing and Recovery, Inc., 99-194 (La.App. 1 Cir. 3/31/00), 765 So.2d 373, writ denied, 00-1264 (La.6/23/00), 765 So.2d 1042, held that force-of-impact testimony may be used to prove causation of injuries, we are not bound by the opinions of other state courts of appeal. See In re Quirk, 97-1143, p. 13, n. 17 (La.12/12/97), 705 So.2d 172, 181.

      . In admitting Dr. Bain’s testimony, the trial court relied extensively on Taylor v. Progressive Sec. Ins. Co., 09-791 (La.App. 3 Cir. 4/7/10), 33 So.3d 1081, writ denied, 10-1024 (La.9/17/10), 45 So.3d 1044 where this court upheld the admission of a chiropractor's testimony regarding the chiropractic treatment and biomechanics of low-speed crashes. However, this reliance is unfounded. While Taylor stands for the proposition that an expert can testify to the biomechanics in low-speed crashes, it does not hold that an expert can discuss the extent to which certain levels of force actually cause injury. Given the amount of variables in such a determination, this is a small but necessary distinction to avoid a dangerous evidentiary precedent. See also Davis, 790 So.2d 767.

      . We recognize that awards for future lost wages are different than those for lost earning capacity, and that Mr. Godchaux testified that the light-duty position paid less than his previous position. However, Mr. Godchaux presented no evidence as to the difference in pay between his previous position and the light-duty position offered. Given that Mr. Godchaux chose to turn down this light-duty position, we believe this difference in pay is necessary evidence to accurately assess lost future wages, as we have no way of determining if the wage offered was greater or less than that offered by his current position at At-chafalaya. As Mr. Godchaux has failed to present sufficient evidence to accurately assess lost wages, he is not entitled to the award.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kenneth BELL, Sr.
    No. 13-1443.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      James C. “Jam” Downs, District Attorney, Numa V. Metoyer, III, Assistant District Attorney, Alexandria, LA, for the State of Louisiana.
    Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant-Appellant, Kenneth Bell, Sr.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

| defendant, Kenneth Bell, Sr., was found guilty of aggravated battery and cruelty to a juvenile. He was sentenced to five years at hard labor for each offense, with the sentences to run consecutively with each other and with any other time being served. Finding that any error in the trial court’s failure to conform to the sentencing delays required by La.Code Crim.P. art. 873 is harmless, we affirm Defendant’s sentences.

FACTS AND PROCEDURAL HISTORY

Defendant returned home drunk and got into an altercation with his wife. During the altercation, Defendant threw hot grease on his wife, causing burns to her shoulder. He also threw a telephone at her, striking her above her right eye. A juvenile was present in the home at that time and began screaming at Defendant. Defendant subsequently hit the juvenile across the face with a leather belt, causing a welt and a scratch.

Defendant was charged with aggravated battery, a violation of La.R.S. 14:34, and cruelty to a juvenile, a violation of La.R.S. 14:93. Defendant entered a plea of not guilty, and on August 5, 2013, Defendant waived his right to trial by jury. Following a bench trial, Defendant was found guilty as charged. Defendant was sentenced to serve five years at hard labor on each count, to run consecutively with each other and with any other time being served by Defendant.

This appeal followed, and Defendant is now before this court asserting one assignment of error: the trial court did not inform him of his right to a three-day delay between conviction and sentence. We find, however, that this error is harmless for the reasons discussed below.

I ¡.DISCUSSION

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 one error patent, but that error is harmless.

Defendant was entitled to a jury trial in this case. See La.R.S. 14:34, 14:93, and La.Code Crim.P. art. 782. Louisiana Code of Criminal Procedure Article 780 was amended in 2013 to provide as follows:

A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.
B. The defendant shall exercise his right to waive trial by jury in accordance with Article I, Section 17 of the Constitution of Louisiana. The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial. The motion shall be signed by the defendant and shall also be signed by defendant’s counsel unless the defendant has waived his right to counsel.
C. With the consent of the district attorney the defendant may waive trial by jury within forty-five days prior to the commencement of trial.
D. A waiver of trial by jury is irrevocable and cannot be withdrawn by the defendant.

The effective date of the amendment to Article 780 was June 17, 2013. Thus, the requirement that the jury trial waiver be in writing was in effect at the time of the August 5, 2013 waiver in this case. The record reveals no written waiver of jury trial as required by La.Code Crim.P. art. 780. However, Defendant and his attorney were in open court when the judge addressed his right to a jury trial and waiver thereof. Cf. State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321 (the preferred (not required) method is the court’s advisement of the right to a jury | atrial in open court and the defendant’s personal waiver). Thus, we conclude that the error in failing to obtain a written waiver in violation of La.Code Crim.P. art. 780 is harmless under the facts of this case.

Delay Between Conviction and Sentence

In his only assignment of error, Defendant contends that the trial court imposed consecutive sentences immediately after finding him guilty of felony offenses and did not inform him of his right to a three-day delay between conviction and sentence.

Louisiana Code of Criminal Procedure Article 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

At the conclusion of trial, the trial court stated, in part: “I find you guilty of aggravated battery for pouring the hot grease on the victim. For chasing her through the house and throwing things like radios and other objects at her. And I sentence you to five years to the Louisiana Department of Public Safety and Corrections.” The trial court then found Defendant guilty of cruelty to juveniles and sentenced him. The minutes of sentencing read, in pertinent part: “Court gives reasons and finds the defendant Guilty as to count one, Aggravated Battery and Guilty as to count two, Cruelty to a Juvenile. Defense advised the Court that they will waive any sentencing delays.”

Defendant contends that he was not clearly aware that the trial court would immediately proceed to sentencing after it found him guilty and that the trial court | ¿did not ask him either if he was- ready for sentencing or if he wished to address the court prior to sentencing. Defendant asserts that there was no express or implied waiver of the statutory delay. In support of this statement, Defendant cites State v. Hood, 10-70 (La.App. 3 Cir. 10/6/10), 2010 WL 3903954, an unpublished opinion. In Hood, this court found that an express waiver occurred when defense counsel responded affirmatively when the trial court asked if he was ready for sentencing. Defendant additionally contends that there was no colloquy between the trial court and himself or defense counsel regarding readiness for sentencing. Defendant also cites State v. C.S.D., 08-877 (La.App. 3 Cir. 2/4/09), 4 So.3d 204. In C.S.D., the verdict was rendered, and the trial court ordered a presentence investigation and set the sentencing for January 7, 2008. Later, the trial court denied the motions for post-verdict judgment of acquittal and new trial and immediately proceeded with sentencing. This court noted that there was nothing in the record to indicate that defense counsel was unaware of the date sentencing was to be taken up. Following the denial of the defendant’s motions, defense counsel did not request a continuance of sentencing and did not object to proceeding with the hearing. Additionally, the trial court recessed to allow the parties to review letters it had received, and defense counsel reviewed the presentence investigation report, called a witness, and submitted a sentencing memorandum. C.S.D. did not assign the trial court’s failure to observe the sentencing delay as error on appeal and did not allege that he was prejudiced as a result of the error. This court found the facts supported an implied waiver of the delay for sentencing.

Defendant argues that in cases where sentences were imposed consecutively, the sentences must be vacated and the matter remanded to the trial court for resentenc-ing in accordance with this court’s decisions in State v. Jason, 01-1428 (La.App. 3 Cir. 7/10/02), 820 So.2d 1286 and State v. Dronet, 97-991 (La.App. 3 Cir. 11/4/98), 721 So.2d 1038. In Jason, 820 So.2d 1286, the trial court sentenced the defendant on the same day it denied his motion for new trial. Because the defendant challenged his sentences on appeal, this court found that the error was not harmless, vacated the defendant’s sentences, and remanded the matter for resentencing. In Dronet, 721 So.2d 1038, the trial court sentenced the defendant immediately following the denial of his motion for new trial. This court addressed the issue stating:

In State v. Dauzat, 590 So.2d 768 (La. App. 3 Cir.1991), writ denied, 598 So.2d 355 (La.1992), this court stated:

Generally, this error, while patent, is not reversible unless the defendant is prejudiced by the lack of a sentencing delay. However, the Louisiana Supreme Court’s most recent pronouncement on this issue has required a strict application of Article 873, particularly where the defendant challenges the penalty imposed. State v. Augustine, 555 So.2d 1331 (La.1990).
Id. at 775 (citations omitted). Although this court could not find any prejudice as a result of the trial court’s failure to observe the delay in sentencing, this court remanded for resentencing, since the defendant challenged his sentence on appeal. Id. at 775-76. See also State v. Williams, 96-37 (La.App. 3 Cir. 6/26/96); 677 So.2d 692. Likewise, the defendant in the present case challenged his sentence on appeal. The fact that his defense counsel announced to the court, “We’re ready,” for sentencing could not constitute a waiver of the provisions of La.Code Crim.P. art. 873. Its provisions must be strictly applied.

Id. at 1040.

The State alleges that, during a recess for lunch, defense counsel advised the trial court that, should Defendant be found guilty, he was prepared to waive any delay for sentencing. The State alleges that the trial court informed defense counsel that, should it be necessary, it would sentence Defendant that day. The State notes that, while still off the record, defense counsel conferred with Defendant regarding the waiver of delays for sentencing and that Defendant agreed to waive any delays. The State also alleges that during another recess, defense | (¡counsel and Defendant reasserted their wish to waive sentencing delays if Defendant was found guilty. The State further alleges that the clerk subsequently noted the waiver in the minutes of court. In support of its claims, the State gives record citations that reflect that court was in recess.

The State argues that this court should find an express waiver of the sentencing delays because Defendant twice informed the trial court, during recesses, that he wanted to be sentenced immediately. Alternatively, the State asserts that this court should find an implied waiver, as was done in State v. Schmidt, 99-1412 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, writ denied, 00-2950 (La.9/28/01), 798 So.2d 105, cert. denied, 535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002), because defense counsel requested a waiver, voiced no objection when sentence was immediately imposed, and there was no request for a continuance as in State v. Giles, 04-359 (La.App. 3 Cir. 10/6/04), 884 So.2d 1233, writ denied, 04-2756 (La.3/11/05); 896 So.2d 62.

In Schmidt, 771 So.2d 131, this court found that the defendant implicitly waived the twenty-four-hour delay between the denial of his motion for new trial and sentencing when defense counsel affirmatively responded to the trial court’s inquiry as to whether his client was prepared for sentencing and where defense counsel failed to lodge a contemporaneous objection when the trial court proceeded. This court noted that the defendant presented substantial evidence at his scheduled sentencing hearing following the trial court’s denial of his motion to reconsider the motion for new trial. Even though the defendant challenged his sentence on appeal, this court found that he could demonstrate no prejudice as a result of the trial court’s failure to observe the delay. This court discussed the trial court’s reasons for sentencing and noted that there was no indication that a twenty-four-hour delay would have resulted in a lesser sentence. Thus, this court found |7that the defendant implicitly waived the twenty-four-hour delay when defense counsel responded affirmatively to the trial court’s question, “ ‘[I]s your client prepared for sentencing?,’ ” and defense counsel failed “to lodge a contemporaneous objection when the trial court proceeded with sentencing.” Id. at 160.

In Giles, 884 So.2d 1233, there was no objection when sentencing was taken up immediately after the denial of the motion for post-verdict judgment of acquittal and motion for new trial. During the sentencing hearing, defense counsel argued for a lenient sentence, submitting evidence in favor thereof. Defense counsel also referred to the sentencing range, the time the defendant had already spent in jail, and argued that the minimum should be imposed without benefits. This court noted that the defendant made no claim of prejudice due to the failure of the trial court to observe the sentencing delay and found that there was an implied waiver of said delay.

The State argues that imposition of sentence without a waiver of the sentencing delay is harmless error when a defendant does not complain of actual prejudice. In State v. Price, 43,469 (La.App. 2 Cir. 9/17/08), 996 So.2d 343, the second circuit found the trial court’s failure to obtain a waiver of the seventy-two-hour sentencing delay was harmless, as the defendant did not complain of actual prejudice. Additionally, “where a defendant does not challenge his sentence on appeal, any failure to abide by sentencing delays pursuant to Louisiana Code of Criminal Procedure article 873 is harmless error” if there is “no showing or suggestion that the defendant was prejudiced by the failure to observe the delay.” See State v. Augustine, 12-1759, pp. 4-5 (La.App. 4 Cir. 9/18/13), 125 So.3d 1203, 1206, writ denied, 13-2484 (La.4/4/14), 135 So.3d 639.

|RIn the instant matter, there is no mention of sentencing delays in the transcript. However, the court minutes indicate and the State argues that defense counsel waived all sentencing delays. When there is a conflict between the transcript and the minutes of court, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). We conclude that the minute entry is not sufficient to prove a waiver of the sentencing delays. See State v. Stovall, 07-343 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, unit denied, 08-501 (La.9/26/08), 992 So.2d 984.

There was no express waiver of the sentencing delays in the case at bar, as the trial court did not ask defense counsel on the record if Defendant waived the sentencing delays or if he was ready to proceed to sentencing. Unlike in C.S.D., 4 So.3d 204, and Schmidt, 771 So.2d 131, the sentencing hearing in this matter was not scheduled for a particular date. No evidence or argument regarding the sentence to be imposed was presented by defense counsel in the case at bar. Thus, the case is distinguishable from Schmidt, 771 So.2d 131, and Giles, 884 So.2d 1233. Defendant does not challenge his sentence on appeal as the defendants in Jason, 820 So.2d 1286, and Dronet, 721 So.2d 1038, did.

In State v. Bell, 11-720, p. 8 (La.App. 3 Cir. 1/9/13), 106 So.3d 295, 301, writ denied, 13-347 (La.11/1/13), 124 So.3d 1106, the defendant alleged that “the trial court patently erred in failing to withhold the imposition of sentence for twenty-four hours following the denial of his motion for new trial, as required by La.Code Crim.P. art. 873.” This court found that “the trial court did run afoul” of that article. “ However, the error [was] harmless,” as the defendant did “not assign as error exces-siveness of his sentence, and he [did] not show, or even allege, any way he was prejudiced by the lack of delay.” Id. See also State v. Cortes, 11-794 (La.App. 3 Cir. 2/1/12), 84 So.3d 733; State v. Roberson, 06-1568 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, writ denied, 07-1243 (La.12/14/07), 970 So.2d 531; State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553; State v. Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103.

In State v. Terry, 47,425 (La.App. 2 Cir. 11/21/12), 108 So.3d 126, writ denied, 12-2759 (La.6/28/13), 118 So.3d 1096, the defendant filed several post-trial motions on the day of sentencing. The trial court failed to observe the twenty-four-hour sentencing delay as required by Article 873. The second circuit addressed the issue stating:

While Defendant has alleged prejudice from this, his only argument is that the sentences imposed were maximum sentences. This standing alone is insufficient to prove prejudice by imposition of the sentences without observance of the delay. Defendant did not object to the immediate sentencing on the day of imposition; and, furthermore, Defendant did not raise the issue in his motion to reconsider sentence. As such, Defendant has failed to show actual prejudice. Accordingly, this claim is without merit.

Id. at 148.

Even though the trial court erred in failing to observe the sentencing delay set forth in La.Code Crim.P. art. 873, based on the decisions in Price, 996 So.2d 343, and Bell, 106 So.3d 295, we conclude that this error was harmless because there was no objection to proceeding with sentencing, no request for a continuance was made, no motion to reconsider sentence was filed, Defendant did not assign as error the ex-cessiveness of his sentence, and he did not show or even allege any way in which he was prejudiced by the lack of delay. This assignment of error lacks merit.

DECREE

Any error in the trial court’s failure to observe the sentencing delay required by La.Code Crim.P. art. 873 is harmless under the facts of this case. Therefore, Kenneth Bell, Sr.’s sentences are affirmed.

| inAFFIRMED.

      . Pierre predates the 2013 amendment to La. Code Crim.P. art. 780 requiring a written waiver; however, it is instructive in assessing whether obtaining an oral waiver is harmless in light of the newly-required written waiver.


author: CONERY, Judge.

text:
    CITY OF DeRIDDER, Louisiana v. ADMINISTRATORS OF VACANT SUCC. OF Isaac J. CELESTINE, et al.
    No. 13-1453.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      David R. Lestage, Hall, Lestage & Lan-dreneau, DeRidder, Louisiana, for Plaintiff/Appellee City of DeRidder, Louisiana.
    Harold Dewey Register, Jr., A Professional Law Corporation, Lafayette, Louisiana, for Defendants/Appellants Administrators of Vacant Succ. of Isaac J. Celestine and Anna Thomas Celestine, Fredrick C. Celestine, Eva Celestine Gunter, and Marva Celestine Bluitt.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and JOHN E. CONERY, judges.
   CONERY, Judge.

liThe City of DeRidder, Louisiana (“City”) instituted a combined petitory and boundary action against the Vacant Successions of Isaac J. Celestine and Anna Thomas Celestine and their surviving children, Fredrick C. Celestine, Eva Celestine Gunter, and Marva Celestine Bluitt (“Cel-estines”) to determine the ownership of approximately two acres of immovable property that the City claimed was part of the Community Cemetery. After a bench trial on the merits, the trial court ruled in favor of the City, finding it had record title to the property and that La.R.S. 9:5804 precluded the running of acquisitive prescription against the City. The trial court also fixed the boundary of the Community Cemetery in accordance with record title as confirmed by the most recent survey of Registered Professional Land Surveyor Stanley J. Vidrine. The court ordered the Celestines to remove the existing fence which encroached on the City’s property at their cost and allow the City to construct a new fence in accordance with the Vidrine survey, the new boundary set by the trial court. The Celestines now appeal the September 18, 2013 judgment of the trial court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 14, 1942, the Long-Bell Farm Land Corporation executed an Act of Donation to the City of a 5.2 acre tract of immovable property for use as a cemetery, the eastern two acres of which are the subject of this lawsuit. The City designated the property as the Community Cemetery and accepted the donation in a May 11, 1942 Resolution. Both the donation and acceptance were filed by the Clerk of Court in Beauregard Parish under Instrument No. 68,733 and were recorded in Conveyance Book 81 at Page 332. The City submitted into evidence at trial a certified copy of the donation and acceptance, as well as the May 20, 1942 |2survey of R.A. Scalfi, the Parish Surveyor, which depicts the donated property divided into lots and blocks for burial sites.

On February 2, 1949, the Long-Bell Lumber Company, which was a company related to the donor of the Community Cemetery, sold approximately 3.5 acres of immovable property, a portion of which adjoins the eastern boundary of the Community Cemetery, to Mrs. John B. Jones. On August 12, 1957, Mr. John B. Jones subdivided Mrs. Jones’s property into the Jones Subdivision. On September 30, 1957, Mr. Jones sold to Isaac and Anna Celestine by virtue of a vendor’s lien deed all of Block One and Block Two of the Jones Subdivision. On December 14,1959, the heirs of Mrs. Jones executed a quit claim deed to Isaac and Anna Celestine conveying their interest to that same land.

Sometime between the May 20, 1942 survey of the Community Cemetery and the purchase of the property in the Jones Subdivision by Isaac and Anna Celestine in 1957, someone erected a fence that runs north and south across the eastern portion of approximately two acres of the originally donated cemetery property. The Celestines contend that their parents maintained the property east of the fence since 1957 and that upon their death, the Celestines have continued to maintain the disputed two acres to the present. The Celestines claim ownership by acquisitive prescription.

Sometime after taking office in July 2006, Mayor Ronald Roberts became aware that the City owned additional property at the Community Cemetery that had not been sold as burial sites. The City’s Director of Public Works commissioned a survey by Stanley J. Vidrine, a registered professional land surveyor, in order to determine the extent of the boundary of the City’s property. Mr. Vidrine’s survey was completed on October 30, 2007. Mr. Vid-rine included |sthe fence by partially drawing it in on the survey, as is the customary practice of surveyors. The fenced-in portion claimed by the Celestines was an encroachment on the City’s property as set forth in its title and confirmed by Mr. Vidrine’s survey.

Upon completion of the Vidrine survey, the City began communicating with the Celestines concerning the City’s claim of ownership of the property east of the fence and its desire to begin to prepare the property to be sold as burial sites. When the Celestines refused to remove the fence and relinquish the disputed property to the City, the City filed this combined petitory and boundary action. After the death of their parents, the Celestines contacted an attorney to prepare the successions of their parents. Those successions were never opened. The City requested that the district court appoint administrators for those vacant successions and named the vacant successions and the three sole heirs in this combined action.

A bench trial on the merits was held on August 7, 2013, after which the parties were allowed to file post-trial memoranda. The trial court promptly issued its written reasons for ruling and judgment on September 18, 2013. The trial court found that although the Celestines were in possession of the approximately two acres of the disputed immovable property, they had no proof of valid title to the disputed acreage. The City had proved record ownership and just title by virtue of the 1942 recordation of both the donation and acceptance. Thus, the Celestines’ only other method of proving ownership was by way of thirty years acquisitive prescription pursuant to La.Civ.Code arts. 3446 and 3486.

|4In addition to the finding that the Cel-estines had no proof of valid title to the disputed acreage, the trial court also found that La.R.S. 9:5804 precluded the running of acquisitive prescription against the City. The trial court fixed the boundary of the Community Cemetery based on the 2007 survey of Mr. Yidrine. The trial court then ordered the Celestines to remove the fence partially enclosing the approximately two acres in dispute as depicted on the Vidrine survey at their own cost and allow the City to erect a new fence to mark the boundaries set by the trial court. The Celestines timely appealed.

ASSIGNMENT OF ERROR

The Celestines assert as their sole assignment of error on appeal that “The trial court erred in ruling that the disputed portion of land is not susceptible to acquisitive prescription because the City never exercised dominion or control over the disputed portion of property.”

LAW AND DISCUSSION

“[Ajppellate 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).

However, statutory interpretations are questions of law. Shell v. Wal-Mart Stores, Inc., 00-997 (La.App. 3 Cir. 3/21/01), 782 So.2d 1155, writ denied, 01-1149 (La.6/15/01), 793 So.2d 1244. Although a reviewing court defers to a trial Lcourt’s reasonable decision on a question or matter properly within the trial court’s discretion, if the trial court’s decision is based on an erroneous interpretation or application of the law, such an incorrect decision is not entitled to deference. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

In essence, the only issue before this court is the application by the trial court of La.R.S. 9:5804. The trial court found that despite the failure of the City to recognize that their record title to the contested two acres of immovable property had been partially fenced-in and clearly possessed by the Celestines in excess of the thirty year acquisitive prescriptive period, La.R.S. 9:5804 was controlling and suspended the running of acquisitive prescription against the city. The statute provides:

Any municipal corporation owning alienable immovable property may prevent the running of prescription acquir-endi causa against it in favor of any third possessor, by recording a notice with the clerk of court of the parish where the property is situated, or with the register of conveyances in the Parish of Orleans insofar as property in that parish is concerned. This notice shall contain a description of the property and a declaration that it is public property belonging to the municipality and the recording shall suspend the running of prescription during the time the ownership of the property shall remain vested in the name of the municipality.
The recordation of the written act by which a municipal corporation shall acquire alienable immovable property likewise shall be deemed sufficient notice in order to suspend the term of prescription.

At the trial on the merits, the City properly entered into evidence both the Act of Donation and the May 11, 1942 Resolution whereby the City accepted the donation of the 5.2 acres of immovable property designated as the Community Cemetery, as well as the May 20, 1942 R.A. Scalfí survey which depicts the donated property divided into lots and blocks for burial sites.

|fiMr. Vidrine, who, prepared the 2007 survey for the City, testified at trial that he was familiar with the work of Mr. Scal-fi, the former Parish Surveyor. Mr. Vid-rine purchased Mr. Scalfi’s field notes and also worked with his plats and surveys on occasion. Mr. Vidrine further opined that if the fence in question was in existence when Mr. Scalfi performed his survey in 1942, it would have been so noted on his plat. It was not. He further testified that the disputed two-acre tract on the eastern boundary claimed by the Celestines was part of the original donation to the City and that the existing fence encroached on the City’s property.

Able counsel for the Celestines cited several cases in brief and at oral argument which they urge support their position that the trial court erred in holding that La. R.S. 9:5804 suspended the running of acquisitive prescription against the City. Louisiana Highway Comm’n v. Raxsdale, 12 So.2d 681 (La.App. 2 Cir.1943); Prothro v. City of Natchitoches, 265 So.2d 242 (La. App. 3 Cir.1972); City of New Iberia v. Romero, 391 So.2d 548 (La.App. 3 Cir. 1980). The properties at issue in Raxs-dale, Prothro, and Romero were acquired by the public entities prior to the enactment of La.R.S. 9:5804 in 1926. The holdings in those cases do not apply to cases such as this arising subsequent to the statute’s enactment.

The trial court correctly held that by filing and recording the donation, acceptance, and the parish surveyor’s plat in this case, the City proved it had complied with the statute and suspended the running of acquisitive prescription pursuant to La.R.S. 9:5804:

City presented evidence that it met the requirements of this statute, preventing the running of acquisitive prescription against it from November 14,1942, thus, defendants cannot claim ownership[.] Defendants have not proved that they gained ownership through acquisitive prescription from ancestors in title of the property before City suspended the running of prescription against it.

|7The Celestines nevertheless argued to the trial court that acquisitive prescription had run against the City “because the tract of land in dispute has never been used or owned by the municipality as a public thing[.]” The trial court also ruled against the Celestines on this issue, citing La.Civ.Code art. 450 and Locke v. Lester, 78 So.2d 14 (La.App. 2 Cir.1955) for the proposition that prescription is suspended for an entire tract of land accepted and recorded pursuant to La.R.S. 9:5804. The trial court stated, “The court finds the Acceptance by the City of the donated land that designates the immovable property as a Community Cemetery establishes the property as a public thing.”

The trial court further found that even if the immovable property at issue was deemed to be a “private thing,” it also would not be susceptible to acquisitive prescription based on the provisions of La.Civ. Code art. 3485, which provides, “All private things are susceptible of prescription unless prescription is excluded by legislation.” The trial court correctly found that Comment (c) of La.Civ.Code art. 3485 specifically lists La.R.S. 9:5804 as a legislative provision which excludes the running of acquisitive prescription against a “private thing” when that thing is owned by a political subdivision of the State, such as the City. Thus, the City’s compliance with the provisions of La.R.S. 9:5804 would also have suspended the running of acquisitive prescription even if the property in question had been a private thing.

We find no legal error in the trial court’s ruling and find that there is ample evidence in the record to support the trial court’s factual findings. We find no manifest error and affirm its decision on this issue.

The trial court then addressed the City’s boundary action pursuant to La.Civ. Code art. 792, which states, “The court shall fix the boundary according to lathe ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to the limits established by possession.” Additionally, La.Code Civ.P. art. 3693 instructs, “After considering the evidence, including the testimony and exhibits of a surveyor or other expert appointed by the court or by a party, the court shall render judgment fixing the boundary between the contiguous lands in accordance with the ownership or possession of the parties.”

The trial court ultimately found that the City had proved ownership of the disputed property, had complied with the notice requirements of the statute, and in its judgment, the court fixed the boundaries of the Community Cemetery in accordance with the 2007 Certificate of Survey by Mr. Vid-rine. The trial court ordered the Celes-tines to remove the fence enclosing the approximately two acres at their own cost and allow the City to erect a new fence to mark the boundaries set by the trial court. We agree and affirm the trial court’s judgment in all respects.

CONCLUSION

Finding that the trial court did not commit an error of law in its application of La.R.S. 9:5804 and did not make a factual finding that was manifestly erroneous or clearly wrong, we affirm the trial court’s judgment in favor of the City of DeRidder, Louisiana. We assess all costs of this appeal to the appellants, the Vacant Successions of Isaac J. Celestine and Anna Thomas Celestine and their surviving children, Fredrick C. Celestine, Eva Celestine Gunter, and Marva Celestine Bluitt.

AFFIRMED.

      . Louisiana Civil Code Article 3446 provides, "Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.” La.Civ.Code art. 3486 provides, "Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.”

      . See Seminary v. DuPont, 09-1082 (La.App. 5 Cir. 5/11/10), 41 So.3d 1182, writ denied, 10-1336 (La.9/24/10), 45 So.3d 1077, wherein a mandatory injunction was affirmed by the fifth circuit, ordering a neighbor to remove a fence that encroached on the neighboring homeowner's property.