text:
    Esther G. MELDER v. BROOKSHIRE’S GROCERY COMPANY, et al.
    No. 14-669.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      David A. Hughes, Hughes Law Firm, Alexandria, LA, for Defendants/Appellants, Brookshire’s Grocery Company, DeRon Floyd, Allen Hudson, Richard Cog-burn.
    Otis E. Dunahoe, Jr., Dunahoe Law Firm, Natchitoches, LA, Gayla M. Monda, Kean Miller LLP, Baton Rouge, LA, for Plaintiff/Appellee, Esther G. Melder.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

_JjThe defendants in this litigation, Brookshire’s Grocery Company (Brook-shire’s), Richard Cogburn, Deron Floyd, and Allen Hudson, appeal a trial court judgment rendered against them awarding the plaintiff, Esther Gay Melder, $343,331.12 in compensatory damages for injuries she sustained in an accident which occurred in a Natchitoches, Louisiana Brookshire’s grocery store on July 23, 2011. For the following reasons, we amend the judgment to reflect that Deron Floyd and Allen Hudson were not cast in judgment, but affirm the judgment in all other respects.

DISCUSSION OF THE RECORD

Esther Gay Melder, a Natchitoches, Louisiana resident, was shopping in a Natchitoches Brookshire’s grocery store on July 23, 2011, when a sign located over a cooler in the meat and seafood department fell and struck her. The sign weighed approximately five pounds and measured twenty-three and five-eighths inches by forty-eight inches by one-half inch. The sign had been in place for approximately four years and was installed by Richard Cogburn, the Marketing Manager of Brookshire’s Natchitoches store.

Mrs. Melder filed a petition for damages on July 18, 2012, alleging that the negligence and fault of Brookshire’s, concurrently with the negligence and fault of its employees, Deron Floyd, Allen Hudson, and Richard Cogburn, caused the accident and her injuries. The matter ultimately went to trial on November 7, 2013, and upon completion of the evidence, the trial court factually found that Brookshire’s breached its duty to keep its premises safe for patrons, as did its employee, Mr. Cog-burn. The trial court also found no fault on the part of Mrs. Melder or the remaining two defendants. After allowing the parties to submit 1 ^quantum briefs, the trial court issued written reasons for judgment which set the quantum recovery as follows:

General damages

Pain and suffering since the accident $84,000.00

Future pain and suffering, including surgery 150,000.00

Loss of enjoyment of life 40,000.00

Totals $274,000.00

Special damages

Past Medical:

Natchitoches Regional Medical Center $8,644.50

Ashley Ridge Imaging 3,100.00

Dr. Russell Tynes 2,286.12

Dr. Anil Nanda 487.50

Totals $9,518.12

Future Medicals for surgery:

Willis Knighton Medical Center $42,000.00

Dr. Nanda 17,813.00

Totals $59,813.00

Total Award $343,331.12

After the trial court executed a judgment corresponding to its reasons for judgment, the defendants perfected this appeal. In their appeal, they assert four assignments of error:

1.The trial court erred in not considering the evidential contradictions of Mr. and Mrs. Melder and their son’s testimony (as to her health problems prior to the incident at issue) as opposed to records and testimony of fact.
2. The trial court erred in its award of both the past and future physical and mental pain and suffering as well as future medical and loss of enjoyment of life.
3. The trial court erred in including the estimated cost of Dr. Nanda’s future services with his deposition and in-elusion of the estímate into the trial court records.
4. The trial court erred in the inclusion of two of the defendants, Deron Floyd and Allen Hudson, in the court’s opinion of determining fault | owhen, at the end of the trial, the court verbally had found them NOT to be in fault in this proceeding.

OPINION

Assignment of Error Number One

In their first assignment of error, the defendants argue that the trial court erred in not considering the evidentiary contradictions present in the testimony of Mr. and Mrs. Melder and them son as those contradictions relate to her medical history. This assignment of error questions factual findings of the trial court, and it is well settled that a reviewing court may not set aside a factfinder’s determinations absent manifest error. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). This court reasserted that basic rule of appellate review in Poole v. Poole, 08-1325, p. 5 (La.App. 3 Cir. 4/1/09), 7 So.3d 806, 810, wherein it stated the following:

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. [Stobart, 617 So.2d 880 (La.1993).] Where there is conflict in the testimony presented at trial, the trial court’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989). A trial court’s credibility determinations are subject to the strictest deference, and the manifest error or clearly wrong standard demands great deference for the trial court’s findings. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Stobart, 617 So.2d at 882. Thus, if the trial court’s decision is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though the appellate court would have weighed the evidence differently. Rosell, 549 So.2d 840.

The evidence presented at trial established that Mr. Cogburn was the Marketing Manager for Brookshire’s Natchitoches store at the time of the accident and was the individual who installed the sign that struck Mrs. Melder. The record |4also established that Mrs. Melder sought medical treatment from Dr. Paul Wheeler, an emergency room physician at Natchitoches Regional Medical Center (Natchitoches Regional) in Natchitoches, Louisiana; Dr. Russell Tynes, a Shreveport, Louisiana internist; and Dr. Anil Nanda, a Shreveport, Louisiana neurosurgeon.

Dr. Wheeler was the first physician to see Mrs. Melder after the accident. Mrs. Melder reported the accident to Brook-shire’s store manager before she left the store, but did not immediately seek medical attention. Instead, she purchased her items and returned home, where she informed her husband of the incident, told him she was in pain, and asked him to take her to the hospital. Part of her concern at the time was that she previously underwent two cervical surgeries that resulted in a fusion of her spine from the C-3 through the C-6 area. She testified that she feared the accident may have caused further damage to her neck.

Mr. Melder drove his wife to Natchi-toches Regional where she was examined by Dr. Wheeler in the emergency room. Dr. Wheeler testified that Mrs. Melder complained to him of neck and left shoulder pain caused by being hit by a falling sign. According to Dr. Wheeler, an x-ray of her neck revealed arthritic changes as well as evidence of her prior surgery. Dr. Wheeler rated Mrs. Melder’s pain as one or two on a scale of one to ten, provided her with a prescription for pain medication, and released her. Mrs. Melder, on the other hand, rated her pain as being at the top of the pain scale.

Dr. Tynes previously treated Mrs. Meld-er between 2008 and 2010, for complaints of back pain radiating down both legs. His diagnosis at that time had been sciatica affecting both legs, which he treated with steroid injections. He testified that following the July 23, 2011 accident, he saw Mrs. Melder for the first |stime on August 11, 2011. At that time, she complained to him of severe pain in her neck area, lower back and hips, and down into her legs. He treated these complaints with a steroid injection as well.

On August 30, 2011, or less than one month after her first visit to Dr. Tynes, Mrs. Melder saw Dr. Nanda for her complaints related to the July 23, 2011 accident. Dr. Nanda had performed Mrs. Melder’s cervical fusions in 2005, and saw her again in 2009, for pain in her upper left extremity; and Mrs. Melder had returned to him expressing concern about her previous cervical fusions and the effect the recent accident may have had on them. Dr. Nanda examined Mrs. Melder on August 30, 2011, and found no evidence to suggest that her cervical fusions were affected by the July 23, 2011 accident.

Thereafter, Mrs. Melder was followed by both Dr. Tynes and Dr. Nanda. At the instruction of Dr. Tynes, Mrs. Medler underwent an MRI on December 22, 2011. The results revealed that she suffered from a bulging disc and significant arthritic problems in her lumbar spine. Dr. Nanda reviewed the MRI and initially recommended conservative treatment with steroid injections. However, he suggested to her that if the conservative treatment was not productive or if her pain worsened, he would recommend that she undergo a lumbar laminectomy.

Dr. Tynes testified at the November 2013 trial on the merits that he last saw Mrs. Melder in September of 2013, and at that time, she still suffered from lower back pain, which limited her activities and diminished her lifestyle. His ultimate medical conclusion was that she suffered an aggravation of her preexisting conditions, “more likely than not” caused by the July 23, 2011 accident.

IfiDr. Nanda supported Dr. Tynes’ conclusion concerning Mrs. Melder’s condition and its causation, although he based his opinion primarily on the veracity of his patient. He testified:

The bottom line is, I think the issue here is, based on the veracity of the patient, and she had preexisting degenerative condition, a traumatic event could have aggravated a preexisting condition. The trauma in itself would not have caused degeneration of the spine or neck, but an event could have made it worse, and that’s based on her veracity. That’s what I’m ethically comfortable with saying.

Mrs. Melder, who was eighty-two-years old at the time of trial, testified that she previously operated a Bed and Breakfast business in Natchitoches, and since her retirement, continued to assist her two sons in operating their similar businesses in Natchitoches. Her duties with her sons included “cooking, making jellies, overseeing or doing house cleaning, landscaping of the yards, and shopping for food.” In fact, on the day of the accident, she was shopping for breakfast items for one of her son’s establishments. Additionally, since her retirement and before the July 2011 accident, she had continued to do her own housework and yard work, enjoyed cooking and entertaining, and was an active bridge player.

According to Mrs. Melder, her lifestyle changed drastically after the accident in that her lower back pain began to significantly radiate down both legs, the effect of the steroid shots was shorter in duration, and the residual pain was much more severe than before the accident. Mrs. Meld-er testified that she has to curtail her activities, rest in bed for hours each day, and is never free from pain. The testimony of her husband of sixty-four years, L.J. Melder, Sr., and her son L.J. Melder, Jr., supported Mrs. Melder’s testimony concerning her physical abilities both pre- and post-accident. Both testified that she has experienced a diminished ability to be active and perform any significant physical functions; that she |7constantly complains of pain in her lower back and legs; and that the pain has gotten progressively worse.

With regard to its evaluation of the testimony before it, the trial-court made the following finding in its written reasons for judgment:

The court carefully observed Mrs. Melder as it listened to her testimony, and found her to be very credible and straightforward in her testimony. She has suffered considerable and much greater pain in her back and legs than before the accident, only [on] a now almost daily basis, and for which the steroid injections provide very little relief.
The court also found the testimony of her husband and son to be credible as to her complaints of levels of pain and inability to function, and as to when the more severe problems began, following the accident.
The court also found both her and their testimony to be compelling regarding how her life has changed since the accident. She was 80 when the accident occurred, but most of her back pain was being controlled by the steroids, and she lived a very active lifestyle for someone her age. Following the accident, she has suffered almost daily pain, has given up most of her activities, and goes to bed for several hours each afternoon. She has clearly suffered a loss of the enjoyment of her life. She will now undergo a laminectomy, she says.

Given the record before us, we find no manifest error in the trial court’s factual determinations concerning the extent of Mrs. Melder’s injuries. Thus, we find no merit in this assignment of error.

Assignment of Error Number Two

The particulars of the accident were not seriously' disputed at trial. The trial court found that Mr. Cogburn, as an employee of Brookshire’s, breached his duty, and that as its employee, Brook-shire’s was responsible for his fault. The trial court found no fault as to Mr. Hudson or Mr. Floyd, and found no comparative fault as to Mrs. Melder. In this assignment of error, the defendants do not question the trial court’s fault determinations, but question all aspects of the $274,000.00 general |sdamages award as well as the $59,813.00 award for future medical expenses. They complain that all of the awards are excessive.

Louisiana Civil Code Article 2315' provides that an individual is entitled to recover the damages she sustains as a result of another’s fault. The damages are generally categorized as either special or general damages. General damages are based on the facts and circumstances of the particular case and may not be fixed with pecuniary exactitude. Jones v. Centerpoint Energy Entex, 11-02 (La.App. 3 Cir. 5/25/11), 66 So.3d 539, writ denied, 11-1964 (La.11/14/11), 75 So.3d 946. General damages involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms. Id. The role of an appellate court in reviewing general damages is to review the exercise of discretion made by a fact-finder, and the adequacy of award should be determined by the facts or circumstances particular to case under consideration. Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La.1993). Additionally, “the discretion vested in the trier of fact is ‘great’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Id. at 1261. The standard for review for general damages is nonspecific, and it is only when an award is beyond that which a reasonable factfinder could assess for the effects of a particular injury to a particular plaintiff under the particular circumstances should an appellate court increase or reduce award of general damages. Id.

Special damages are those damages which may be determined with some degree of certainty and include past and future medical expenses. McDaniel v. Carencro Lions Club, 05-1013 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, writ denied, 06-1998 (La.11/3/06), 940 So.2d 671. The award of future medical [(¡expenses must be supported by medical testimony indicating both their need and probable cost. Id.

In arguing this assignment to the court, the defendants assert that Mrs. Melder’s degenerative joint disease had begun to worsen long before the July 2011 accident, that the accident was minor in nature, and that the acceleration of her condition was minimal. However, as previously stated, the trial court factually concluded otherwise, and we find no manifest error in those factual findings.

The trial court awarded Mrs. Melder general damages of $84,000.00 for past pain and suffering, $150,000.00 for future pain and suffering including surgery, and $40,000.00 for loss of enjoyment of life. It awarded special damages of $59,813.00, including Mrs. Melder’s past and future medical expenses. Based on the vast discretion vested in the trial court with regard to general damage awards as set forth in Youn, 623 So.2d 1257, we find no abuse of discretion in the trial court’s award of general damages in this case.

Next, the defendants argue that the trial court erred in awarding future medical expenses for the lumbar laminec-tomy recommended by Dr. Nanda. Again, the trial court obviously accepted Mrs. Melder’s testimony that her condition had deteriorated to such a condition that she was willing to proceed with the recommended surgery. We find no manifest error in the trial court’s findings of fact on this issue and find no abuse of discretion in awarding the future medical costs for the lumbar laminectomy procedure.

We find no merit in this assignment of error.

Assignment of Error Number Three

In this assignment of error, the defendants assert that the trial court erred in including the estimated cost of Dr. Nan-da’s future services with his deposition and 11 ninclusion of the estimate into the trial court records. However, the trial court is given vast discretion in its evidentiary rulings, and its decision to admit or exclude evidence will not be reversed on appeal in the absence of an abuse of discretion. BellSouth Telecomm., Inc. v. City of Lafayette, 05-1478, 05-1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844. We find no abuse of discretion in the trial court’s inclusion of future estimated medical costs into the trial court records. The evidence establishes that Mrs. Melder has decided to undergo a laminectomy to be performed by Dr. Nanda, as a result of injuries sustained in the July 2011 accident.

Assignment of Error Number Four

In their fourth and final assignment of error, the defendants assert that the trial court erred in casting Deron Floyd and Allen Hudson in judgment with Brook-shire’s and Mr. Cogburn.

In the oral reasons rendered at trial on November 7, 2013, the trial court specifically stated that it found no fault on the part of Mr. Floyd or Mr. Hudson; and the January 6, 2014 written reasons for judgment make no mention of either man. The issue raised by this assignment of error arises because the trial court executed a judgment on the same day it filed its written reasons for judgment, which makes no mention of either man as well. Instead, it provides a short disposition of the case with the following language:

For the reasons set forth ¾ written ruling of even date herewith, it is therefore:

ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Esther G. Melder and against defendants in the full sum of Three Hundred Forty Three Thousand, Three Hundred Thirty One Dollars, and 12/100 ($343,331.12) cents, together with legal interest from date of judicial demand until paid, and all costs of these proceedings.

_|n(Emphasis added.)

Out of concern that this language might constitute a judgment against Mr. Floyd or Mr. Hudson, the defendants raised this issue on appeal. However, this has become a non-issue on appeal because Mrs. Melder acknowledges to this court that her understanding was that the judgment refers only to Brookshire’s and Mr. Cogburn as the defendants cast in judgment. Therefore, for the limited purpose of clarifying the judgment as rendered, we amend that judgment to read in pertinent part as follows:

For the reasons set forth in written ruling of even date herewith, it is therefore:

ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Esther G. Melder and against defendants, Brookshire’s Grocery Company and Richard Cogburn, in the full sum of Three Hundred Forty Three Thousand, Three Hundred Thirty One Dollars, and 12/100 ($343,331.12) cents, together with legal interest from date of judicial demand until paid, and all costs of these proceedings.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claims by Esther G. Melder against Der-on Floyd and Allen Hudson are dismissed with prejudice.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment awarding Esther Gay Melder general and special damages in the total amount of $343,331.12 against Brook-shire’s Grocery Company and Richard Cogburn. We further amend the trial court judgment to reflect that Deron Floyd and Allen Hudson were not cast in judgment to any extent. We assess all costs of this appeal to Brookshire’s Grocery Company and Richard Cogburn.

AFFIRMED AS AMENDED.

      . The trial court found that the estimate was accidentally not attached to Dr. Nanda's deposition when filed and was "relevant to a determination of damages.”


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Carolyn SHIVER, d/b/a LABS v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 14-760.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Malcolm Brasseaux, Church Point, LA, for Plaintiff/Appellant, Carolyn Shiver.
    Michael J. Breaux, Lafayette, LA, for Defendant/Appellee, Lafayette City-Parish Consolidated Government.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

_JfThis appeal concerns the trial court’s denial of a motion for continuance and subsequent grant of a motion for involuntary dismissal. Alleging that health problems had prevented him from properly preparing for the trial, the plaintiffs attorney filed a motion for continuance on the morning of trial. After a contradictory hearing, the trial court denied the motion for continuance. Noting that the plaintiff was not present for trial, the defendant moved for involuntary dismissal, which was granted by the trial court. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

In February 2011, Carolyn Shiver d/b/a LABS brought this action against the Lafayette City-Parish Consolidated Government. Ms. Shiver alleged that a sewer line owned by LCG backed up into her property, causing damages. Ms. -Shiver later amended her petition to indicate that Shiver Development, L.L.C. owned the property, which was leased to Laboratory and Analytical Business Services, Inc. Ms. Shiver asserted that she was a guarantor of the lease.

In August 2013, LCG requested that the matter be set for trial, and the trial court scheduled a bench trial for January 27, 2014. On the morning of trial, Ms. Shiver’s attorney filed a motion for continuance, asserting that he had been in poor health and was unable to prepare for the trial. The trial court conducted a hearing at which Ms. Shiver’s attorney and opposing counsel were present and argument was made. Thereafter, the trial court denied the motion for continuance. Observing that the plaintiff was not present for trial, the defendant moved for | {.involuntary dismissal pursuant to La. Code Civ.P. art. 1672. The trial court granted the motion and dismissed the plaintiffs claims, with prejudice.

The plaintiff appeals, asserting that the trial court erred in denying the motion for continuance.

Discussion

Written Motion for Continuance Not in the Record

As a preliminary matter, we note that the plaintiffs attorney, Mr. Bras-seaux, asserts in brief that his motion for continuance is not contained in the record, and he has attached a copy of the motion to his brief. An appellate court must render judgment based upon the record on appeal. La.Code Civ.P. art 2164. Appellate courts may not review evidence that is not in the appellate record, nor may they receive new evidence. Denoux v. Vessell Mgmt. Servs., Inc., 07-2143 (La.5/21/08), 983 So.2d 84. Documents attached to memoranda do not constitute evidence and may not be considered on appeal. Id. Further, appellate courts may not consider facts, memoranda, or exhibits referred to in the appellate briefs if they are not in the appellate record. Pickett v. J.B. Tuck Land Clearing, 12-1409 (La.App. 3 Cir. 5/1/13), 157 So.3d 34, 2013 WL 1809881.

Louisiana Code of Civil Procedure Article 2132 provides that “[a] record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court.” However, in this case, the transcript 1 jjOf the hearing on the motion for continuance is included within the record and contains sufficient information to resolve the plaintiffs assignment of error.

Trial Court’s Ruling as to Motion for Continuance

The plaintiff asserts that the trial court erred in denying her motion for continuance. Continuances may be granted on either peremptory or discretionary grounds. La.Code Civ.P. arts. 1601 and 1602. The peremptory grounds for a continuance are when “the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; .or that a material witness has absented himself without the contrivance of the party applying for the continuance.” La.Code Civ.P. art. 1602. Otherwise, “[a] continuance may be granted in any case if there is good ground therefor.” La.Code Civ.P. art. 1601.

The trial court has wide discretion in ruling on a motion for continuance, and absent a clear showing of an abuse of that discretion, the appellate court will not disturb the trial court’s ruling on appeal. Newsome v. Homer Mem. Med. Ctr., 10-564 (La.4/9/10), 32 So.3d 800. In deciding whether or not to grant a motion for continuance, the trial court may consider 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. The defendant’s right to have his ease heard as soon as possible may also factor into the trial court’s decision. Succession of Harrell v. Erris-Omega Plantation, Inc., 12-696 (La.App. 3 Cir. 12/5/12), 104 So.3d 751, writ denied, 13-438 (La.4/5/13), 110 So.3d 595.

The trial court’s discretion may not be used arbitrarily where the denial of a continuance based on a good-faith ground may deny a litigant their day in court. Matthews v. Matthews, 220 So.2d 246 (La.App. 3 Cir.1969). Thus, the denial of a continuance can rise to an abuse of discretion where a litigant’s principal trial counsel has a sudden and genuine illness. Id. However, counsel’s unsupported allegations of illness do not entitle the moving party to a continuance. Dillard v. Stamm, 400 So.2d 1112 (La.App. 1 Cir.1981).

At the hearing on the motion for continuance, Mr. Brasseaux contended that he had been in the hospital and had gotten out “on Labor Day” and that he had been suffering from chest pains, nausea, and headaches. The defendant opposed the motion for continuance, arguing that the defendant was ready for trial and had incurred expenses due to subpoenaing witnesses. The defendant’s attorney, Mr. Breaux, also represented that he had contacted Mr. Brasseaux the week before trial and had been informed that the plaintiff intended to seek a continuance. However, Mr. Breaux stated that he had not received the motion for continuance until 10:00 a.m. the morning of trial. After considering these arguments, the trial court denied the motion for continuance.

We find no abuse of discretion in that decision. According to the record, this matter had already been pending for three years. The defendant asserted that it had already incurred expense in preparing for trial, including the cost of subpoenaing witnesses. As' evidenced by the transcript, the timeliness of the motion for continuance was of concern to the trial court. According to the arguments presented at the hearing, although Mr. Brasseaux may have been suffering from ill health, his illness was not sudden, and the record reveals that Mr. Brasseaux had knowledge of his need for a continuance at least one week before the trial date. Mr. Bras-seaux’s statements at the hearing indicates that his health problems became apparent several months before-the trial date. Further, according |sto Mr. Breaux, at least one week before the trial date, Mr. Bras-seaux told Mr. Breaux that he intended to file a motion for continuance but did not actually do so until the morning of trial. The transcript of the hearing contains no explanation for this delay.

Given these circumstances, we find no. abuse of discretion in the trial court’s denial of the motion for continuance. This assignment of error is without merit.

DECREE

For the foregoing reasons, the trial court’s judgment signed April 7, 2014, is affirmed. Costs of this appeal are assessed to the appellant, Carolyn Shiver.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 1672(A)(1) provides that "[a] judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.” We observe that the plaintiffs assignment of error addresses the denial of the motion for continuance, not the trial court’s grant of the motion for involuntary dismissal.-


author: PICKETT, Judge.

text:
    Houston FREEMAN, Jr. v. WEST FRASER, INC.
    No. 14-691.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      John Craig Jones, Attorney at Law, Oakdale, LA, for Plaintiff-Appellee, Houston Freeman, Jr.
    John Joseph Rabalais, Heather W. Blackburn, Rabalais, Unland & Lorio, Cov-ington, LA, for Defendant-Appellant, West Fraser, Inc.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

| ,West Fraser, Inc. appeals a judgment of the trial court finding Houston Freeman sustained a compensable injury and awarding workers’ compensation benefits, penalties, and attorney fees.

STATEMENT OF THE CASE

Freeman suffered a contusion to his hip when he fell at work on December 28, 2010. His doctor released him to light-duty work in late February 2011. West Fraser offered him a position as a security guard checking in trucks beginning on March 7, 2011, where he only had to do limited walking. Freeman worked twelve hours the first day, and then four hours on the next day before he claimed the pain to his hip was too great to continue. West Fraser offered him a position where he had to do no walking, but Freeman never replied to their offer. Freeman claimed he never received notice of the new position but told his cardiologist that he suffered heart problems because of the stress associated with his employer calling him back to work. His cardiologist indicated he was unable to work from March 24, 2011 through May 17, 2011, due to shortness of breath and chest pain. West Fraser cut off Freeman’s benefits effective March 2, 2011.

On May 3, 2011, Dr. Mark Dodson, Freeman’s treating physician for his hip injury, indicated in response to a query that he agreed with the opinion of a second doctor that Freeman’s hematoma to his hip had completely resolved. He also agreed with the suggestion of a work-hardening program. Dr. Dodson also prescribed treatment for Freeman with a pain management specialist. Freeman eventually completed the work-conditioning program. On September 19, 2011, Dr. Dodson stated that Freeman had reached maximum medical improvement. He |2began treating with a pain management specialist in January 2012, continuing through October 2012.

The workers’ compensation judge (WCJ) found that Freeman suffered a workplace injury on December 28, 2010. The WCJ awarded temporary total disability (TTD) benefits from March 2, 2011 through September 19, 2011, and supplemental earnings benefits (SEB) from September 20, 2011. The WCJ found that West Fraser was responsible for the pain management treatment prescribed by Dr. Dodson. The WCJ found that Freeman did not commit fraud by giving false information for the purpose of receiving benefits. Finally, the WCJ assessed a penalty of $4,000.00 against West Fraser for terminating Freeman’s benefits on March 2, 2011, and additionally awarded $15,000.00 in attorney fees. West Fraser now appeals.

ASSIGNMENTS OF ERROR

On appeal, West Fraser asserts five assignments of error:

1. The workers’ compensation judge erred in awarding Freeman temporary total disability benefits from March 2, 2011, through September 19, 2011.
2. The workers’ compensation judge erred in holding that Freeman was entitled to supplemental earnings benefits starting September 20, 2011.
3. The workers’ compensation judge erred in failing to find Freeman was entitled to pain management treatment.
4. The workers’ compensation judge erred in failing to find Freeman violated La.R.S. 23:1208.
5. The workers’ compensation judge erred in awarding penalties and attorney fees.

^DISCUSSION

The WCJ’s finding that Mr. Freeman suffered a workplace injury on December 28, 2010, is not in dispute. The question posed by West Fraser is whether the workplace injury, a deep contusion of his left hip, caused Freeman to become temporarily totally disabled.

Louisiana Revised Statutes 23:1221(l)(c) states, in pertinent part:

[Cjompensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

The WCJ found that Freeman met this burden of proof and awarded TTD benefits from March 2, 2011 through September 19, 2011. We review the finding of the WCJ under the manifest error standard of review. Arnold v. Cavanaugh Aviation, 95-438 (La.App. 3 Cir. 10/4/95), 663 So.2d 329. In order to prove a matter by clear and convincing evidence, a claimant must demonstrate that the existence of a disputed fact is much more probable than its nonexistence. Bundren v. Affiliated Nursing Homes, Inc., 94-808 (La.App. 3 Cir. 2/1/95), 649 So.2d 1177. After reviewing the record in its entirety, we find the WCJ committed manifest error in finding Freeman proved that the contusion to his hip caused him to be temporarily totally disabled after March 2, 2011. While the evidence shows that he was in pain because of his injury, his physician released him to light-duty work in late February 2011. West Fraser, attempted to provide Freeman with a light-duty position on March 7, 2011, and then modified the position when Freeman claimed he could not walk the short distances required of him because of the pain. The |4record does show that Freeman could not work from March 24, 2011 through May 17, 2011, because of an unrelated heart condition. On May 3, 2011, even Dr. Dodson, Freeman’s treating physician, believed that the contusion had resolved. We note also that the record shows that Freeman applied for social security disability benefits because of his other health problems. Taken as a whole, we find Freeman did not meet his burden of proving by clear and convincing evidence that he was entitled to TTD benefits because of the injury he sustained to his hip.

We further find that the evidence shows that Freeman was not entitled to SEB either because of his injury. Freeman has shown no inclination to seek employment, either with West Fraser or with another company, since he walked off the job on March 8, 2011.

Our finding that Freeman is not entitled to workers’ compensation benefits leads us to further conclude that West Fraser was not arbitrary and capricious in terminating Freeman’s benefits. Thus, we reverse the award of penalties and attorney fees.

Dr. Dodson and the employer’s choice of doctor and the IME physician disagreed about whether Freeman was entitled to pain management treatment. We find that the WCJ did not commit manifest error in finding the treatment necessary. We affirm the judgment of the WCJ on this issue.

We also find that the WCJ did not err in finding that Freeman did not commit fraud so as to forfeit benefits pursuant to La. R.S. 23:1208. He told several different stories at different times about how the injury occurred and the severity of it. He often seemed to exaggerate his symptoms to the medical professional treating him. We agree with the WCJ, though, that there was no intent to defraud.

CONCLUSION

|BThe judgment of the WCJ awarding TTD benefits, SEB, and penalties and attorney fees is reversed. The judgment of the WCJ ordering West Fraser to pay for pain management treatments is affirmed, as is the judgment finding Freeman did not commit fraud. Costs of this appeal are assessed in equal parts to West Fraser and Freeman.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.


author: COOKS, Judge.

text:
    Chad Michael TREMIE v. Christa Gail Lejeune TREMIE.
    No. 14-733.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2014.
    John E. Fitz-Gerald, Law Offices of John E. Fitz-Gerald, Lake Charles, LA, for Plaintiff/Appellant, Chad Michael Tre-mie.
    Brad Guillory, Lake Charles, LA, for Defendant/Appellee, Christa Gail Tremie.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and J. DAVID PAINTER, Judges.
   COOKS, Judge.

| .FACTS AND PROCEDURAL HISTORY

Chad Michael Tremie (hereafter Chad) and Christa Gail Lejeune Tremie (hereafter Christa) were married on September 11, 1999. Three children were born of their marriage: Christopher Michael, born on January 26, 2000; Addy Mil, born on February 18, 2002; and Elizabeth Kate, born on July 22, 2003.

Chad filed for divorce on August 16, 2010, and the parties were divorced by judgment dated November 4, 2011. The parties filed a Joint Stipulation wherein they agreed to share joint custody, with Christa named as domiciliary parent, subject to specified visitation for Chad. It was also agreed that Chad would pay Christa child support in the amount of $1,200.00 per month. The parties further agreed that beginning in 2010, Christa would have the state and federal income tax dependency exemption for Christopher and Chad would have the same for Addy. They also agreed the exemptions for Elizabeth would be alternated.

On May 9, 2012, Chad filed a Rule for Contempt, Change of Custody and Modification of Visitation. On May 23, 2012, Christa filed her own Rule for Contempt and a Rule to Increase Child Support. Through mediation, Chad and Christa were able to resolve all issues, except for Christa’s request for an increase in child support.

A trial on the child support increase request was held on October 29, 2013, after which the trial court ordered Chad to produce various items previously requested to help determine his true income. The trial court noted Chad is self-employed. It was acknowledged that, along with paying himself $1,000.00 per week, Chad often would pay personal expenses out of his business account. After trial on the merits was concluded, the trial court determined it would need certain documents which Chad failed to produce to determine his true income and ultimately, the appropriate award for child support. The trial court ordered these |,.¡documents produced and took the matter under advisement. After reviewing the evidence and testimony adduced at trial, as well as the additional information produced by Chad, the trial court rendered written reasons for judgment on March 28, 2014.

Christa was awarded child support in the amount of $1,619.00 per month from May 23, 2012 until December 31, 2012, and then $1,615.00 per month beginning January 1, 2013. The trial court also determined medical expenses of the children not covered by insurance would be paid 69% by Chad and 31% by Christa. The state and federal tax dependency exemptions were maintained as previously determined. Costs of the proceedings were assessed against Chad. This appeal followed, wherein Chad alleges the trial court’s judgment is contrary to the law and evidence and should be reversed.

ANALYSIS

In his first assignment of error, Chad contends the trial court erred in failing to submit the post-trial credit card statements, personal and business cancelled checks, and 2012 tax returns into the record of these proceedings. Chad asserts this court cannot properly conduct an appellate review of the trial court’s decision without these documents, which were relied upon by the trial court in reaching its judgment.

The trial court’s written reasons for judgment clearly indicate its reliance on certain documents submitted to the trial court by Chad, following the trial on the merits:

The trial was held on October 29, 2013, after which the Court ordered Chad to produce various items. Despite previous requests for information, Chad had continued to fail to produce the information. The Court ordered those items produced in order to accurately determine his child support obligation. After receiving the additional information submitted, the Court took the matter under advisement to review all of the evidence and now renders the following written reasons for judgment.
The challenges with accurately computing Chad’s child support obligation up until trial were due to Chad’s failure to produce documents ordered to be produced. Chad testified that he is paid $1,000 a week from the business. In addition, he acknowledges that he pays personal expenses out of his business account. However, he did not produce the documents necessary to determine his true income until the Court ordered those items produced at the conclusion of trial. The Court ordered him to produce his American Express Statements for 2012-2013, the 2012 cancelled checks for his personal and business accounts and a copy of the documents that he gave to his CPA for his 2012 taxes (or his return if it was completed).

It is clear the trial court’s judgment increasing Chad’s child support obligation was based, at least in part, on the post-trial submissions of the documents listed above. However, the record submitted to this court does not include those documents. In his assignments of error, Chad asserts the trial court erred, not only in failing to submit these documents into the record, but also in its use and interpretation of the documents.

In order to determine whether a trial court’s interpretation and ultimate conclusions regarding the evidence is correct or reasonable, the evidence must be available to the reviewing court. Louisiana Code of Civil Procedure Article 2132 allows the correction of an appellate record which omits a material part of the trial record; however, that article does not permit introduction of new evidence after the transcript of the appeal is filed in the appellate court. Sutton v. Montegut, 544 So.2d 1181 (La.App. 5 Cir.1989) (on rehearing). Further, a court of appeal has no jurisdiction to receive new evidence. Bullock v. Commercial Union Ins. Co., 397 So.2d 13 (La.App. 3 Cir.1981); Sutton, 544

So.2d 1181. Pursuant to La.Code Civ.P. art. 2161, we cannot dismiss an appeal because the trial court record is missing, incomplete, or in error, no matter who is responsible; however, we can remand the case for retrial or for correction of the record. Bamma Leasing Co., \ Jnc. v. State, 556 So.2d 149, 151 (La.App. 5th Cir.1990). In this case, the record cannot be corrected to include the missing exhibits, because neither party properly moved the exhibits into the record before the trial court. Accordingly, this matter will be remanded to the trial court for a retrial.

DECREE

For the foregoing reasons, this matter is remanded to the trial court for retrial.

REMANDED.

      . Chad asserts the trial court erred in "incorrectly calculating [his] income” and in "failing to identify with specificity which certain expenses, either from the American Express statements or the cancelled checks submitted post-trial, which the trial court used to calculate income for years 2012 and 2013.”


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Richard Lynn LONG, Jr., Appellant.
    No. 49,398-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 2014.

      Louisiana Appellate Project, by Teresa C. Carroll, Jonesboro, LA, for Appellant.
    John M. Lancaster, District Attorney, Penny W. Douciere, Kenneth D. Wheeler, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and GARRETT, JJ.
   STEWART, J.

|, The defendant, Richard Lynn Long, Jr., pled guilty to first degree murder, in violation of La. R.S. 14:30, reserving his right to appeal the trial court’s denial of his motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence in accordance with the penalty provisions of this crime. The defendant now appeals, urging that the trial court erred in denying his motion to suppress. Finding no error in the trial court’s judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

On the evening of September 11, 2010, Frances Coenen was home alone at her house located at 4086 Highway 80 in Ray-ville, Louisiana. At approximately 9:00 p.m., she heard glass shattering. Searching her home for the source of the sound, Mrs. Coenen noticed that glass had been broken out of the east window of a front bedroom, and that there was tape on the window. The bedroom light was on, but she noted that nothing else in the room appeared to be in disarray.

Mrs. Coenen called the sheriffs office as a precautionary measure, telling them, “I don’t think it’s anything, I think somebody is trying to scare me because my husband is not here.” Nevertheless, the sheriffs office stayed on the telephone with her until Officer Thomas Alexander of the Rayville Police Department, with whom Mrs. Coenen was familiar, arrived.

Officer Alexander and Mrs. Coenen walked down the hallway toward the bedroom where the shattered window was located, with Officer Alexander walking directly in front of her. As they approached the | ^bedroom, they heard a “thumping” noise. Officer Alexander entered the bedroom first, and walked toward the bed. Mrs. Coenen entered the bedroom directly behind Officer Alexander and immediately noticed the drawers in the dresser had been pulled out, the curtain had been pulled aside, the closet door was open, and a table had been moved. Mrs. Coenen informed Officer Alexander that someone was in the house. The defendant then jumped out of the closet, which was located to the right of Officer Alexander and Mrs. Coenen, brandishing a handgun. Officer Alexander then instructed Mrs. Coe-nen to run, and she overheard him identify himself as a police officer. The defendant shot Officer Alexander three times in the torso. The defendant fled the scene through the shattered window, traveled across Highway 80, and was picked up by codefendant Anthony Oatis. Officer Alexander died at the scene as a result of his wounds.

Mrs. Coenen ran down the hall toward the kitchen, where she was met at the door by another police officer who had arrived as backup for Officer Alexander. Other officers arrived and began to search the house. They found Officer Alexander on the floor of the bedroom across the hall from where he had been shot. They entered the bedroom where the defendant shot Officer Alexander and found codefen-dant Robert J. Walker, hiding under the bed.

Walker agreed to cooperate with law enforcement officials, telling the investigators that he, the defendant, and Oatis had planned to travel to the Coenens’ home to burglarize it. Walker was familiar with Mrs. Coenen and her husband, Theo Coe-nen, because Walker worked previously as a trustee |sat the Richland Parish Sheriffs Office. He noticed the Coenens’ jewelry in their home while assisting Mr. Coenen with carrying boxes there on several occasions.

Walker stated that during the day of September 10, 2010, he, the defendant, and Oatis traveled in a Ford Fusion, owned by Oatis’ girlfriend, to the Coenens’ home to obtain a layout of the home and consider escape routes. The trio agreed that on September 11, 2010, Oatis would drop off Walker and the defendant near the Coe-nens’ residence, and they would enter the home to obtain some jewelry. Oatis would then pick them up at a pre-arranged location.

On the evening of September 11, 2010, the trio arrived shortly before dark in an area near the Coenens’ home. Walker and the defendant walked around the home for approximately 30 minutes. They saw Mrs. Coenen inside, and discussed how they would get in the home with her present. Deciding to enter through a window, they, duct taped the window and placed pillows on it to muffle the sound of glass breaking. Walker and the defendant also waited for a train to pass to further muffle the sound.

Once inside the home, Walker stated that he looked for jewelry while the defendant looked for Mrs. Coenen. The defendant told Walker that he thought he overheard Mrs. Coenen calling the police, and the men unsuccessfully attempted to exit the home. Upon hearing Mrs. Coenen talking to a police officer in the home, they hid in different closets in a bedroom. Walker stated that he heard the police officer tell the defendant to put his hands up or he would shoot. He then heard several gunshots and |4assumed that the police officer was the shooter because he was unaware that the defendant was armed. Walker left the closet in which he was hiding, and went to hide under the bed. He was eventually discovered during a search of the home.

Walker assisted the officers in capturing Oatis by placing a recorded, controlled call to Oatis to tell him that he made it out of the house and needed him to come back to pick him up.

The defendant was arrested on the morning of September 12, 2010, at approximately 7:00 a.m., at the Parkview Apartments in Monroe, Louisiana. When arrested, the defendant possessed a duffel bag containing clothes that appeared to have been recently washed. A mixture of DNA from Officer Alexander and the defendant was found on a blue T-shirt located in the duffel bag. Officer Alexander’s DNA was also found in the Ford Fusion driven by Oatis, and the .38 caliber Rossi located on Highway 80, across from the Coenens’ home.

Louisiana State Trooper Daniel Grissom arrived at the scene on September 11, 2010, at approximately 10:25 p.m. Officer Grissom spoke with Mrs. Coenen at her home around 2:30 a.m. that night, and later that morning at the office of former district attorney, Billy Coenen. Recalling the events that took place at her home the night before, Mrs. Coenen told Officer Grissom that before she began to run upon Officer Alexander’s urging, she saw a man standing in front of Officer Alexander. After Officer Alexander identified himself as a police officer, the man fired his gun. Mrs. Coenen described the man as a “big man but not as big as Tommy [Officer |,■Alexander].” Further, she stated the man was wearing dark clothes, and did not have much hair. When Officer Grissom asked Mrs. Coenen if she would be able to identify the man in a photographic lineup, she responded, “I doubt it.”

On September 17, 2010, Officer Grissom visited Mrs. Coenen at her home to show her a photographic lineup that consisted of six subjects. Before showing her the lineup, he told her that the subject may or may not be in the lineup. He testified that it took her “less than five seconds” to identify the defendant, whose photo was in position number five, as the suspect. Upon instruction, she circled the defendant’s photograph, and signed and dated it. Mrs. Coenen also wrote, “[H]e jumped out of the closet in front of policeman at my house.” Mrs. Coenen admitted that she asked Grissom if she had selected the right person, but Grissom did not tell her if she had.

On October 12, 2010, the defendant was indicted on one count of first degree murder and one count of conspiracy to commit first degree murder. On November 3, 2010, the defendant entered a plea of not guilty to both charges, and the state served the defendant notice of its intent to seek the death penalty.

At the September 1, 2011, preliminary examination, Mrs. Coenen made a second, in-court identification of the defendant. When questioned about her statement to Officer Grissom that she “doubted” if she could identify the suspect, she explained that she was very upset at the time, but after she had the opportunity to think about the events that transpired that 1 (¡night, she could “see” him. She further testified that she was wearing her contacts that night, and that she was not unusually medicated. She stated that she saw a gun, and that it sounded like a “cap pistol” when it was fired. Over the defendant’s objection, the state introduced into evidence the photographic lineup that was previously presented to Mrs. Coenen. The defendant argued that the format of the lineup violated the Department of Justice’s protocol and policy of how to perform a lineup for photographic identification. The lower court allowed the use of the lineup.

At the November 28, 2012, motion to suppress hearing, Mrs. Coenen again identified the defendant as the suspect. The defendant challenged the reliability of Mrs. Coenen’s identification, arguing that he was unable to verify the protocol, practices used, words spoken, instructions given, persons involved, or whether there was a tentative identification. He further argued that Mrs. Coenen’s change from “doubting” whether she could identify the suspect to immediately picking out the suspect was not trustworthy.

During Officer Grissom’s testimony, he explained how a photographic lineup procedure is conducted. He stated that after a suspect is identified, his photo is retrieved from either a driver’s license database or the APHIS database. The photo is then emailed to a division within the Louisiana State Police, who compiles similar photos to the suspect’s photo and then emails all of the photos back.

The trial court denied the motion to suppress. After stating that the general reason for suppressing a photographic lineup is primarily whether it |7is imper-missibly suggestive, it found that the photographic lineup in this case was not suggestive.

On January 13, 2013, the defendant subsequently withdrew his not guilty plea and pled guilty to first degree murder. He reserved his right to appeal the trial court’s denial of his motion to suppress the sole eyewitness’s identification of the defendant pursuant to State v. Crosby, supra. The state agreed that it woul4 not seek the death penalty, and that it would dismiss the conspiracy to commit first degree murder charge. Pursuant to La. R.S. 14:30(C)(2), the defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. The defendant appeals, asserting one assignment of error.

LAW AND DISCUSSION

Motion to Suppress

In his pro se brief, as well as the brief submitted by his counsel, the defendant argues that the district court erred in denying his motion to suppress Mrs. Coe-nen’s identification of him through the photographic lineup.

Great discretion is vested in the trial court when ruling on a motion to suppress, and its ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Long, 03-2592 (La.9/9/04), 884 So.2d 1176, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005); State v. Horton, 01-2529 (La.6/21/02), 820 So.2d 556.

On the trial of a motion to suppress, the burden of proof is on the defendant to prove the ground of his motion. La. C. Cr. P. art. 703(D). In | ^seeking to suppress an identification, the defendant must prove the identification procedure used was suggestive and that the totality of the circumstances presented a substantial likelihood of misidentification. State v. Martin, 595 So.2d 592 (La.1992); State v. Stokes, 36,212 (La.App.2d Cir.9/18/02), 828 So.2d 631, writ denied, 02-2807 (La.9/05/03), 852 So.2d 1023.

A lineup is unduly suggestive if the procedure used focuses attention on the defendant. For example, distinguishing marks on the photos may single out the accused, or suggestiveness can arise if sufficient resemblance of physical characteristics and features does not reasonably test identification. State v. Sparks, 88-0017 (La.5/11/11), 68 So.3d 435, cert. denied, 80 U.S. 3647, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012); State v. Stokes, supra.

It is not required that each person whose photograph is used in the lineup have the exact physical characteristics as the defendant. What is required is a sufficient resemblance to reasonably test the identification. State v. Smith, 430 So.2d 31 (La.1983); State v. Davis, 27,961 (La. App.2d Cir.4/8/96), 672 So.2d 428, unit denied, 97-0383 (La.10/31/97) 703 So.2d 12.

The likelihood of misidentification violates due process when the totality of the circumstances indicate that misiden-tification probably occurred. State v. Brown, 40,769 (La.App.2d Cir.3/8/06), 923 So.2d 976, citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Even if suggestiveness is proven by the defendant, it is the likelihood of | amisidentification, and not the mere existence of suggestiveness, which violated due process. State v. Williams, 375 So.2d 364 (La.1979); State v. Davis, supra.

The central question is whether under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive. State v. Sparks, supra, citing Neil v. Biggers, supra. Thus, despite the existence of a suggestive pre-trial identification, an in-court identification is permissible if, under all the circumstances, there does not exist a very substantial likelihood of irreparable misidentifieation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Positive identification by only one witness may be sufficient to support a conviction. State v. Williams, supra; State v. Davis, supra.

The U.S. Supreme Court has approved several factors for evaluating whether the reliability of an identification may outweigh the suggestiveness of the procedures employed. See Manson v. Brathwaite, supra; Neil v. Biggers, supra; State v. Davis, supra. The factors are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the victim’s prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.

In the case sub judice, the defendant argues that his head is the only one “tilted or cocked to the side” in the photographic lineup, and that he is the only suspect in the lineup with any bright color in his photo. In State v. Tucker, 591 So.2d 1208 (La.App. 2d Cir.1991), writ denied, 594 So.2d 1317 (La.1992), this court found that the lineup was not suggestive after determining that even though the defendant was the only subject with his teeth showing, smiling, in his photo, it did not unduly focus attention on the defendant. We do agree that the defendant’s head is slightly tilted; however, his head positioning does not distract or draw attention to his photo in the lineup. Further, the fact that the defendant appears to be wearing a red lanyard of some type around his neck does not “single him out.” In the photo, the defendant appears to be wearing a dark T-shirt, with a white T-shirt underneath, and a red lanyard. The remaining five individuals have collars of various colors. One individual also appears to be wearing a blue lanyard in his photo. For these reasons, we find that the position of the defendant’s head, as well as his red lanyard, do not unduly focus attention to the defendant’s photo or cause suggestiveness to arise.

The six men depicted in the photos share similar characteristics regarding their age, skin tone, build, and facial hair. The photos are identical in size and coloring, and are evenly spaced on the page.

Officer Grissom testified that he either used the defendant’s driver’s license photo, or that he obtained a photo of the defendant from the APHIS. He then e-mailed the photo to a division of the Louisiana State Police in Baton Rouge. This division used the photo of the defendant to identify five other men that closely matched his description, and compiled a photographic lineup. The photographic lineup was emailed back to Grissom, who assessed it to ensure that it was not suggestive.

|n Mrs. Coenen successfully identified the defendant on three separate occasions. She identified him as the suspect from the photographic lineup, in court at the preliminary examination that took place one year later, and in court at the motion to suppress hearing that took place two years later.

Further, we find that the factors set forth by the U.S. Supreme Court for evaluating whether the reliability of an identification may outweigh the ' suggestiveness of the procedures employed with respect to Mrs. Coenen’s identification of the defendant, were satisfied. Just hours after the crime occurred, Mrs. Coenen gave her initial statement to Grissom. She told him that she witnessed a black male wearing dark clothes, with light or little hair, jump out of the closet in the bedroom with a gun in his hand. She also stated that the lights in the bedroom were on, and that she was standing four feet from the suspect.

The defendant argues that the seconds that Mrs. Coenen had to observe the suspect was not enough to time obtain an accurate description, but the evidence proves otherwise. Even though the time that she viewed the suspect was brief, she indicated that she was an “arm’s length” away from him. The bedroom light and hallway light were on, and Mrs. Coenen was wearing her contact lenses, at the time the crime occurred. Mrs. Coenen’s ability to accurately report details regarding the suspect’s appearance to authorities, such as the color of his shirt and the hair on his head, or lack thereof, prove that she gave the suspect an adequate amount of attention.

| i2When Officer Grissom initially interviewed her during the early morning hours on September 12, 2010, she described the suspect as a “big man with dark clothes and not much hair.” The defendant argues that this description does not fit his description. Even though she admitted doubt in her ability to identify the suspect, Mrs. Coenen explained at the September 1, 2011, preliminary examination that she was very upset at the time, but after she had the opportunity to think about the events that transpired that night, she could visualize his appearance. In State v. Prudholm, 446 So.2d 729 (La.1984), the supreme court determined that the victim’s general description at the time of the offense carried little weight considering her state of mind after the crime. Comparable to the instant case, Officer Grissom testified that Mrs. Coenen was visibly upset when he initially interviewed her and gave him a general description. After Mrs. Coenen had the opportunity to think, she gave extensive details that proved to be accurate regarding the suspect. She correctly identified the defendant as not having much hair on his head, as shown by his photo in the photographic lineup. She stated that the defendant’s clothing was dark, and the authorities were subsequently able to recover a blue T-shirt in his possession at the time of his arrest that contained Officer Alexander’s DNA. Though Mrs. Coenen was unable to provide a detailed description of the handgun used, she was able to report that the suspect was holding a small, dark handgun in his right hand. Her description matched the handgun that was recovered on Highway 80 across from her home. This very gun contained Officer Alexander’s DNA.

liSSix days after the crime occurred, Grissom presented the lineup to Mrs. Coe-nen in her home, and informed her that the suspect may or may not be in the lineup. Without being prompted, she was able to accurately identify the defendant in the lineup in a matter of seconds. She never paused or showed interest in any of the other suspects in the lineup. Mrs. Coenen testified that prior to viewing the photographic lineup, she had not been shown any photographs of the defendant by any family member, law enforcement official, or through the media. Moreover, Mrs. Coenen repeatedly stated in her testimony during both the preliminary examination and the motion to suppress hearing that she had no doubt that she chose the correct suspect, and that she did so without being prompted, coached, or influenced by other means.

Based on the evidence presented, we agree with the lower court’s determination that the defendant failed to show that the lineup was unduly suggestive, or that it created a substantial likelihood of mis-identification. Further, Mrs. Coenen’s testimony, coupled with her accurate description of the defendant, supports her identification of the defendant as the suspect. Therefore, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: CARAWAY, J.

text:
    STATE of Louisiana in the Interest of P.B.
    No. 49,668-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 2014.

      Layne M. Adams, Monroe, LA, for the mother.
    Elizabeth C. Brown, West Monroe, LA, Kristy Kay Finley, for the child.
    Varhonda Burrell, for the father.
    James Caldwell, Attorney General, Jerry L. Jones, District Attorney, Johnny L. Sanders, Assistant District Attorney, for the State of Louisiana.
    Before BROWN, CARAWAY and PITMAN, JJ.
   CARAWAY, J.

|,After the minor child had been adjudicated in need of care three times, had nine placements and remained in foster care for almost five years, the trial court changed the permanent goal from reunification with the child’s parents to adoption. The mother has appealed the judgment. For the following reasons, we affirm.

Facts

By Instanter Order dated August 13, 2009, 5-year-old P.B. (born 6/11/04) was removed from the home of his mother, 25-year-old April Brown (hereinafter “Brown”), on the grounds of dependency and lack of supervision arising from Brown’s drug use, and placed in the custody of the Louisiana Department of Social Services (hereinafter “State”). At the time, Brown was not married to or involved with P.B.’s father, Willie B.

In early August 2009, Brown had been admitted to a hospital by physician’s emergency commitment due to her attempted suicide. In the three days prior to the commitment, Brown had smoked over $2,000 worth of crack cocaine and consumed an entire bottle of antiseizure medication. In the week prior to her hospitalization, Brown was observed by family members exhibiting behavior which suggested drug use. Brown’s older |2child had observed her mother go into the bathroom and smoke crack with other individuals; the children were left alone on more than one occasion. Upon Brown’s release from the hospital, she left town with an unknown male. She returned on August 12, 2009, and attempted to retrieve her children from her grandmother. Following police intervention, the State obtained the Instanter Order.

The lengthy timeline of the events for this case puts into perspective the issue on appeal concerning the disputed permanency ruling, as follows:

November 2, 2009 — By stipulation, P.B. was adjudicated a child in need of care and placed in the home of Brown’s grandmother. P.B. exhibited behavioral concerns and demonstrated sexual acting out. He was placed on medication. March 16, 2010 — Review Family Team Conference Report indicated that Brown had not completed the case plan. Brown maintained unstable housing as she had no home of her own and lived with a boyfriend, failed to complete substance abuse treatment, had tested positive for cocaine three times (including an admitted September 2009 drug binge), and was not mentally stable. The state set forth a goal of reunification for P.B. August 2010 — Second Administrative Team Review report indicated that Brown had “made very little progress on her case plan.”
September 13, 2010 — Permanency hearing judgment maintained reunification as the permanent plan for P.B. and his mother
September 17, 2010 — P.B. placed in the home of his father, Willie B., and his wife.
February 17, 2011 — Judgment granted formal custody of P.B. to Willie B.
March 14, 2011 — P.B. was removed from his father’s home by Instanter Order on the grounds of physical abuse and neglect, threatened harm, dependency and bruises. Willie was arrested for domestic abuse battery arising from a physical altercation between |3Willie and his wife February 27, 2011. P.B. was placed in the custody of the State.
May 4, 2011 — Brown arrested for contempt/possession of drug paraphernalia.
July 18, 2011, August 15, 2011 — P.B. was adjudicated a child in need of care pursuant to parents’ stipulations. Reunification was continued as permanent plan. Parents were granted visitation.
September 12, 2011 — Administrative Review Family Team Conference Report placed P.B. in the home of Danny K. Brown visited P.B. on April 29, May 19, June 16, and July 7, 2011. She was unable to attend a July 27, 2011 visit because she was incarcerated. The report concluded that Brown had not made any progress on her plan. She failed to address her mental health problems and had not refrained from drug use despite her completion of a substance abuse assessment.
October 20, 2011 — P.B. placed in the home of a cousin and his wife, Noah and Allyson Brandon. At this time, the State changed the goal from reunification to adoption.
February 23, 2012 — Permanency hearing judgment approved goal of adoption for P.B. Brown moved out of her boyfriend’s (Paul McGhee’s) home after the two had a fight.
February 29, 2012 — Brown moved in with husband, Gary G.
March 15, 2012 — Brown met requirements of Enriched Day Program. Began continuing care program held each Thursday evening. Attended all sessions and tested negative on all drug screens and alcohol swabs.
March 20, 2012 — Brown’s mental health was stable. She had attended all monthly mental health counseling sessions since January 2012.
April 13, 2012 — Brown consistently attended parenting classes. Visited P.B. in January, February, March and April 2012.
14July 11, 2012 — Brown refused to give urine sample; given positive code and did not return next day for further testing; she missed July visit with P.B. July 20, 2012 — Brown moved out of home with Gary G. and back in with boyfriend, Paul McGhee.
August 2012 — Brown’s whereabouts unknown until she called the State on August 13, 2012.
August 13, 2012 — P.B. placed in new foster home of Jennifer and Chris Trom-batore.. Brown visited with P.B. on August 15, 2012.
September 2012 — Brown attended scheduled visit with P.B.
October 22, 2012 — Court dismissed Brown’s Motion to Modify Goal of Adoption due to Brown’s failure to attend. Court observed that Brown had failed to establish a stable address because she kept moving back and forth between her husband and boyfriend.
November 27, 2012 — Brown filed second Motion to Modify Disposition of Adoption to Reunification.
February 14-March 12, 2013 — State lost contact with Brown.
March 12, 2013 — State filed Petition to Terminate Parental rights.
March 28, 2013 — By agreement of the parents, the State and P.B.’s counsel, a guardianship of P.B. was granted to Clara and Billy Joe Williams. Permanent plan changed to guardianship.
June 18, 2013 — P.B. removed from the Williams home and placed in state custody by Instanter Order on grounds of Neglect/Dependency after the Williamses refused to pick P.B. up from a behavioral hospital due to the child’s defiance and threats and physical aggression towards the guardians’ grandchildren.
June 19, 2013 — P.B. placed in new foster home of Marcus and Christie Coleman.
July 8, 2013 — Judgment terminated Guardianship. Brown exercised scheduled visitation with P.B.
July 17, 2013-Brown exercised scheduled visitation with P.B.
August 2013 — Brown consistently at-, tending 12-step program. She had negative drug screen. Brown exercised scheduled visitation with P.B.
| ^September 2013 — Parents stipulated to adjudication of P.B. as child in need of care. Brown exercised scheduled visitation with P.B. and had negative drug screen.
October 2013 — Brown had positive hair sample for cocaine, opiates and hydroco-done. Admitted to using cocaine in July 2013. Brown exercised scheduled visitation with P.B.
November 2013 — Brown exercised scheduled visitation with P.B.; referred to drug rehabilitation group.
December 9, 2013 — Family Team Administrative Review Conference held. Court approved case plan including permanent goal of reunification for P.B. and his parents.
June 16, 2014 — Last case plan continued goal of reunification.
June 18, 2014 — P.B. filed Motion to Change Goal to Adoption or Transfer Guardianship on the grounds that P.B. had been in State custody for almost 5 years which included 3 adjudications as a child in need of care, nine placements and lack of parental stability, including Brown’s lack of a long-term relationship.

During a multiple-day hearing, beginning June 19, 2014, and concluding on July 23, 2014, the trial court heard evidence on the permanency determination/motion for goal change. The witnesses included Brown, who was confronted with the results of her most recent drug screening of June 25, 2014, in which she tested positive for cocaine. The state case worker, the foster parent, Christie Coleman, and the counseling professional, Phyllis Taylor, were among the witnesses. With the presentation of evidence concluded, that State argued that a 90-day extension of the goal of reunification was appropriate due to the parents’ considerable progress. Brown concurred in the State’s position. P.B.’s counsel urged that due to the length of time in which the parents had been | ^working toward stability and their lack of success, the best interest of the child required a changing of the goal to adoption or alternatively granting guardianship to the foster family.

Following the hearing, the trial court rendered dral reasons for judgment as follows:

And today we are now looking at him being in custody for a period of over five years that he’s been in custody. He has been in State’s custody for one-half of his life. He ... I will say, had it not been for his desire to be reunified with his mother when he .came into custody this last time, the goal after that would have been adoption because that’s what the goal was up until that point. There had been four years to complete the case plan and very little progress. Ms. Brandy, the DCFS worker assigned to the ease testified that the parents have completed everything on their case plans. But the evidence showed otherwise. Both of the parents ... the evidence clearly showed that both parents have made progress and perhaps even more than ever before. And the Court was especially pleased with the things that mom is now doing. She’s in aftercare. She routinely attends AA, NA, Celebrate Recovery. She’s in church. She’s in the heart to home ministry. She has a sponsor. She’s taking some baby steps with her other children, recognizing that it takes baby steps to get there. She’s begun the process of stabilizing relationships and becoming stable with her mental health issues. However, neither parent has completed the case plan, and that’s what the evidence shows. Neither parent currently has stable income or stable home. They have begun to show some stability but it’s not there, both in respect to the physical place that they have and the relationships with other people in their lives, including their other children and significant others. The evidence shows that neither has made significant contributions of support to [P.B.]. Despite Mom’s progress she does have a June 25, 2014, positive drug screen for ... positive hair follicle test for cocaine. Father has not made all of his visits and has not kept his phone contacts. The parents are still not demonstrating appropriate parenting skills and a bond with their child. According to Ms. Taylor, who is [P.B.’s] therapist, in her opinion it would be detrimental to return him to his parents. She specifically testified that he will regress if returned to his parents. And the Court finds her testimony credible and 1 give it great weight. The Coleman’s is ... the Coleman’s home is [P.B.’s] ninth placement. It has been the longest placement he has had and clearly the most stable placement. Ms. Coleman ... I’m sorry, Ms. Taylor relates that [P.B.] feels safe and secure in this placement. There he is loved, he is nurtured, he is supported in a consistent manner in a stable family that, places a very |7high priority on [P.B.’s] needs. According to Ms. Taylor, this is a requirement for [P.B.] to continue to make progress in treatment. And the Court finds that testimony to be credible. All of the witnesses agree that [P.B.] is thriving in this placement. And that’s the first time that has been the case in all five years that he’s been in care. He is beginning to manage his anger that he has and he is beginning to be able to express his emotions in an appropriate way. The evidence clearly shows that [P.B.] loves both of his parents, but that he lacks a bond with his dad and with his father’s other children. The evidence also shows that he does have a bond, although minimal, with his mother and the siblings on his mother’s side; his mother’s other children. So, considering [P.B.’s] health and safety is the paramount concern, I do find that the permanent plan of adoption is the most appropriate and in his best interest.

The court also found that the State exceeded reasonable efforts at reunification and that family treatment was no longer in P.B.’s best interest. The Court temporarily suspended P.B.’s visitation with his parents for six weeks.

Brown has appealed the judgment raising seven claims of manifest error in the ruling. Brown contends that the trial court erred in finding that she had not completed her plan, ignoring La. Ch.C. art. 702(C), changing the goal from reunification to adoption when no grounds existed to terminate her parental rights. She also argued that the court placed undue emphasis on the preference of the child and erred in failing to follow the State’s recommendation for reunification.

Law

More than simply protecting parental rights, our judicial system is required to protect the children’s rights to thrive and survive. State in the Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445. Furthermore, aj^child has an interest in the termination of rights that prevent adoption and inhibit that child’s establishment of secure, stable, long term, continuous family relationships. Id.

The court is required to determine the permanent plan for the child that is most appropriate and in the best interest of the child. La. Ch.C. art. 702(C). Two placement priorities include reunification, or the return of the child to the legal custody of the parents within a specified time period consistent with the child’s age and need for a safe and permanent home, and adoption. In order for reunification to remain the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care. La. Ch.C. art. 702(C)(1).

In most permanent plan determinations, the court is required to determine whether the department has made reasonable efforts to reunify the parent and child or to finalize the child’s placement in an alternative safe and permanent home in accordance with the child’s permanent plan. The child’s health and safety is the paramount concern in the -court’s determination. La. Ch.C. art. 702(E).

To reverse a trial court’s permanency plan determination, an appellate court must find from the record that the trial court’s finding is clearly wrong or manifestly erroneous. State ex rel. H.M. v. T.M., 44,446 (La.App.2d Cir.5/6/09), 12 So.3d 409; State ex rel. J.B. v. J.B., Jr., 35,486 (La.App.2d Cir. 2/27/02) 811 So.2d 179; State ex rel. S.D. v. D.M.D.B., 36,406 (La.App.2d Cir.8/14/02), 823 So.2d 1113.

After the goal plan is changed from reunification to adoption, the Children’s Code provides for the filing of a petition for termination of parental rights under La. Ch.C. art. 1004. The grounds for termination of parental rights are contained in La. Ch.C. art. 1015. In relevant part, those grounds include: 1) abandonment of the child by the parent by placing him in the custody of a nonparent or the State under circumstances demonstrating an intent to permanently avoid parental responsibility, and/or, 2) at least one year has elapsed since the child was removed from the parent’s custody; there has been no substantial parental compliance with a case plan; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future considering the child’s age and his need for a safe, stable, and permanent home. La. Ch.C. arts. 1015(4)and (5).

In the context of both termination of parental rights and evaluation of permanency plans, the courts have used a reformation test to determine if a plan of reunification is consistent with the best interest and special needs of a child. State ex reí. S.D., supra. This test evaluates whether there is an expectation of reformation of a parent’s conduct and indicates that no such expectation exists when the parent exhibits prolonged and consistent abusive or negligent behavior or a long history of substance abuse. Conduct | insuch as behavioral or mental disorders which cause a parent to refuse to cooperate with the authorities in addressing the needs of the child would also suggest that no reasonable expectation of reformation exists and that it is unlikely that the parent will reform. Id. However, a reasonable expectation of reformation is found to exist if the parent has cooperated with the state officials and has shown improvement, although all of the problems that exist have not been eliminated. State in the Interest of S.M., supra; State in the Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309 (La.1993).

Mere cooperation by a parent is not the sole focus of the evaluation of a permanency plan. Rather, the courts must assess whether the parent has exhibited significant improvement in the particulars that caused the State to remove the children from the parent’s care and custody. State in the Interest ofS.M., supra. Stability in the home environment and relationships is a consideration in the permanency plan determination. Id. A parent who professes an intention to exercise his or her parental rights and responsibilities must take some action in furtherance of the intention to avoid having those rights terminated. Id.

That children have a need for permanency is well established in the jurisprudence and it is not the intent of either state or federal law that children remain in foster case permanently. State in the Interest of S.M., supra; State ex rel. J.M., 02-2089 (La.1/28/03), 837 So.2d 1247; State ex rel. C.E.C. v. D.M.D.B., 40,409 (La. App.2d Cir.9/28/05), 912 So.2d 418. |nThus, the length of time a child has been forced to remain in foster care is a factor the courts consider in the termination of parental rights decision. Id.

Discussion

Until his placement in the Coleman foster home in June 2013 at age 9, P.B. had experienced almost five years of emotional toil and turmoil dating back to 2008, even before the State’s intervention. Much of this instability and harm to the child caused by his parents occurred while the goal in this state action under the Children’s Code was reunification of the child with the parents. Coincidently, in June 2013, as P.B.’s life found stability, Brown began some progress away from the drug dependency which had ruled her life and thwarted her ability to act as a parent. Nevertheless, most telling for the assessment of Brown’s life for the year leading up to the trial court’s July 2014 ruling is the fact that the State continued mechanically with plans for reunification, seeking in June 2014, only the continuation of the Case Plan with further delay for some contingent, distant reunification. The State’s next “Progress Review Date” was proposed for December 31, 2014.

In response to the State’s June 19, 2014 Case Plan for the continuation of such instability in the child’s life, the child’s attorney moved the court to change the case goal to adoption. The action was supported by the counseling services rendered by Phyllis Taylor. Taylor was qualified as an expert in licensed professional counseling and registered play therapy. She began to meet with P.B. for counseling in December 2012 through April 2013 and again in June 2013 through the time of the hearing. 1 ^Taylor saw P.B. a total of 49 times to address his aggressive and destructive behavior and issues with his parents. Taylor testified that P.B. indicated to her that the source of his anger was his parents’ drug use and the instability he experienced in foster care. Taylor felt that P.B. required stability, nurture, support and consistency in his placement. Taylor testified that P.B. has “some fearfulness” about both of his parents going back to drug or alcohol abuse. Taylor explained that P.B. loves his mom but he is scared of the possibility that things will not be any different. She felt that his current placement was providing for those needs and had done better with his present placement than he had with his aunt and uncle. She stated that he had “done extremely well” and “made a lot of progress,” including doing “a lot better” with anger management. In Taylor’s opinion, P.B. has bonded with his foster family. In fact, he told her that he loved them. Taylor stated that in her opinion, P.B. would regress if placed in Brown’s home.

While we have thoroughly reviewed the trial testimony of the state case worker and Brown along with the other witnesses, we reject Brown’s assignments of error that the trial court was manifestly erroneous in its conclusions. In June 2014, the parents had not completed their case plans. Instead, the State’s proposal for the case plan had built in further delay for the measure of their performance at the end of 2014. The proposed extended time period, falling on the heels of the prior five years of protracted state action for this child in need of care, would be detrimental to this child, who at 10 years old, understood the importance of the security he had finally obtained. Article 702(C) has not been violated by the trial | ^court’s ruling’as the parents did not make significant measurable progress when reunification was attempted from August 2009 until June 2014.

Accordingly, we find that the trial court properly followed the Children’s Code provisions in determining the permanent plan of adoption for this child. Adoption is the most appropriate goal and in the best interest of P.B.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Brown.

AFFIRMED.

      . During the case, Brown had been married to Gary G. She now uses the surname Brown in her appellate brief.

      . The State had investigated Brown and her family previously based upon reports that she had overdosed on a prescription drug and abused cocaine in November and December 2008. She had been admitted to several psychiatric hospitals and had been diagnosed with pseudoseizures, medical noncompliance and drug dependency.

      . P.B.'s 6-year-old sister, Marissa (born 2/15/03), the child of Brown and Danny K., was also removed from the home and eventually placed with her father. Brown also had a third child, K.G. (born 3/17/08), who was then living with his father, and Brown’s husband, Gary G. The two older children, P.B. and Marissa, had been residing with Brown’s grandmother for four weeks prior to removal.

      . Willie's two other sons were also removed from the home at that time.

      . Willie was also arrested on August 5, 2011, for unauthorized use of a motor vehicle, violation of protective order, two probation violations, failure to pay a fine, forgery and cruelty to the infirm. Both domestic abuse charges were alcohol related. At the time of the report, Willie remained incarcerated. He was hospitalized from June 12-16 after being beaten up in a drug deal.

      . The trial court ultimately denied approval of this plan on July 24, 2014 after hearing and granting P.B.’s motion to change goal from reunification to adoption.

      . Willie and the State did not appeal the ruling but filed briefs adopting Brown’s arguments.

      . The court may modify a judgment of disposition on its own motion or on the motion of the district attorney, the department, the child, or his parents. La. Ch.C. art. 714(A). Because P.B. requested a more restrictive disposition, a contradictory hearing was required. La. Ch.C. art. 714(B)(2). The judgment is appealable under La. Ch.C. art. 710.

      . In State in the Interest of S.M., supra, the court considered that the mother failed to establish a residence of her own and changed residences frequently. She also consistently and repeatedly entered into brief, unstable relationships with men, and each of the four children was fathered by different men.


author: KEATY, Judge.

text:
    Corey LAMARTINIERE v. BOISE CASCADE CORPORATION.
    No. 13-1075.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2014.

      Eugene A. Ledet, Jr., Dalrymple & Le-det, LLC, Alexandria, LA, for Plaintiff/Ap-pellee, Corey Lamartiniere.
    Charles W. Farr, Attorney at Law, Mandeville, LA, for Defendant/Appellant, Boise Cascade Corporation.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   KEATY, Judge.

_JjWe revisit this workers’ compensation case on remand from the supreme court after it determined that we “erred as a matter of law in requiring the claimant to file an answer to the appeal for a modification of the judgment granted fully in favor of the non-appealing party.” Lamartiniere v. Boise Cascade Corp., 14-1195, p. 1 (La.10/24/14), 149 So.3d 1234, 1234.

The procedural history of this matter was recited by the supreme court in its partial grant of the claimant’s request for writ of certiorari:

The claimant, Corey Lamartiniere, filed suit against defendant Boise Cascade Corporation (Boise) after the defendant discontinued all benefits based upon its belief that claimant had committed fraud in violation of La.Rev.Stat. 23:1208. The trial court found the claimant did not violate La.Rev.Stat. 23:1208 and reinstated temporary total disability benefits (TTDs) from the date of his termination. Boise appealed. The Court of Appeal affirmed the trial court’s finding that Boise failed to meet its burden of proving fraud but reversed the trial court’s reinstatement of TTDs, holding the trial court committed manifest error in finding claimant met his burden of proving entitlement to continued TTDs. Additionally, the Court of Appeal declined to consider the claimant/appellee’s alternative request in his brief for supplemental earnings benefits, for which a worker unable to make 90% of his pre-accident wage may be eligible. The appellate court held it could not consider the request because the claimant did not file an answer to Boise’s appeal.

Id. at pp. 1-2, 149 So.3d 1234. In its decree, the supreme court directed that the case be remanded to this court “for a determination of whether the record has been sufficiently developed to support a finding regarding the claimant’s entitlement for supplemental earnings benefits [SEBs].” Id. at 3, 149 So.3d 1234.

We noted the following in our original opinion:

After having .completed a thorough review of the evidence and exhibits submitted at trial, we conclude that the WCJ committed manifest error in finding that Claimant met his burden of proving his entitlement to TTDs. Claimant failed to offer any testimony regarding his current level of pain or his current ability/inability to work at the May 16, 2013 trial of this matter. On the other hand, | ^.through the results of the FCE; the testimonies of Dr. Bunch, Mr. Strother, and Mr. Latiolais; and the surveillance videos, particularly the one showing Claimant loading thirty-four bags of ice into the cooler at Strother’s, Boise rebutted the evidence in the medical records indicating that Claimant was unable to engage in any employment. Thereafter, Claimant failed to offer any additional evidence to show his current inability to work. When confronted with the evidence of his activities at Strother’s, Claimant did not deny participating in those activities. While the February 14, 2012 report from Dr. Vaughn’s office stated that Claimant was unable to work, none of the more recent reports note such inability to work. Instead, the reports simply note that Claimant has not resumed working. More importantly, according to a May 10, 2013 note from Dr. Vaughn, an updated MRI of Claimant’s lumbar spine was performed on April 3, 2013, and showed “no significant impingement” nor “any impingement which would be expected to be causing [the] described radicular symptoms.” Thus, it appears that the need for an additional MRI as noted by the WCJ no longer exists. We find no merit to Claimant’s argument that the FCE had to be ordered or reviewed by one of his physicians to be valid or that Boise had to get his physician’s approval of any jobs to defeat his claim to entitlement of TTDs. To the contrary, the burden on an employer to prove that an employee can perform a certain job only arises when the employee has met his initial burden of proving his entitlement to SEBs due to a disability that prevents him from earning at least ninety percent of his pre-injury wages. See Dubuisson v. Amelyde Engineered Prods., Co., Inc., 12-10 (La. App. 1 Cir. 12/31/12), 112 So.3d 891. Likewise, the WCJ was mistaken in his belief that Boise’s failure to supply Claimant with a 1020 income reporting forms or a 1025 certificate of compliance somehow relieved Claimant of the burden of proving that he was unable to-work.

Lamartiniere v. Boise Cascade Corp., 13-1075, pp. 11-13 (La.4/9/14), 137 So.3d 119, 126-27 (emphasis added).

At the outset, we conclude that the record is sufficiently developed to allow us to determine claimant’s entitlement to SEBs. Given our previous finding that claimant offered no testimony at trial “regarding his current level of pain or his current ability/inability to work,” we now conclude that he necessarily failed to meet “his entitlement to SEBs due to a disability that prevents him from earning at least ninety percent of his pre-injury wages.” Id. at 126-27. Thus, claimant’s ^request that he be awarded SEBs in lieu of our finding that he was not entitled to TTDs beyond the date of trial is denied.

CLAIMANT’S REQUEST FOR SUPPLEMENTAL EARNINGS BENEFITS DENIED.