author: SANDRA CABRINA JENKINS, Judge. BELSOME, J.,

text:
    Mirna VELASQUEZ v. Ralph R. CHESSON, M.D.
    No. 2013-CA-1260.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2014.
    Ivan A. Orihuela, Riguer Silva, LLC, Kenner, LA, for Plaintiff/Appellant.

      James D. “Buddy” Caldwell, Attorney General, Andree’ F. Pitard, Assistant Attorney General, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

bin this medical malpractice suit, plaintiff appeals the trial court judgment dismissing her claims for failure to request service within ninety days of filing the petition, as required by La. R.S. lJ^lOT. For the reasons that follow, we find the trial court did not err in sustaining defendant’s exception of insufficiency of service of process and dismissing plaintiffs suit for failure to show good cause as to why service had not been requested.

FACTUAL AND PROCEDURAL BACKGROUND

■ Plaintiff, Mirna Velasquez, filed a formal complaint with the State of Louisiana Division of Administration on April 4, 2007 requesting that a Medical Review Panel convene in order to review her allegations against Ralph R. Chesson, M.D. (“Dr. Chesson”). Plaintiff asserts that she submitted to a tubal ligation following childbirth at University Hospital for sterilization purposes. Plaintiff further contends the tubal ligation was performed negligently as she became pregnant a year after the procedure.

|2The Division of Administration notified plaintiff, by letter dated April 27, 2007, that Dr. Chesson is a qualified state health care provider under the provisions of La. R.S. 40:1299.39.1 and a Certificate of Qualification was issued on June 6, 2007. In January 2010, the Medical Review Panel ultimately concluded that evidence did not support the allegation that Dr. Chesson failed to meet the. applicable standard of care as charged in plaintiffs complaint. Plaintiff then filed a petition for damages against Dr. Chesson in the Civil District Court for the Parish of Orleans on April 5, 2010.

On July 15, 2010, defendant filed a decli-natory exception of insufficiency of service of process alleging the State was not properly served within ninety days of filing the suit. Following a hearing on September 10, 2010, the trial court sustained defendant’s exception and dismissed plaintiffs petition without prejudice. Plaintiff filed a motion for a new trial on September 20, 2010, which was subsequently denied and this appeal ensued. On appeal, plaintiff argues the trial court erred in sustaining defendant’s exception and dismissing plaintiffs petition as service on the State was not necessary because Dr. Chesson was not sued in his official capacity as a qualified state health care provider.

DISCUSSION

As mandated by La. R.S. 13:5107(D) and La. C.C.P. art. 1201(C), service shall be requested within ninety days of filing suit where the State or state agency, |sofficer, or employee is a named party. Moreover, unless good cause is shown, the action shall be dismissed as to the party for whom service has not been timely requested upon sustaining said party’s declinatory exception pursuant to La. C.C.P. art. 1672(C). While a definition for “good cause” is not provided in art. 1672(C), our jurisprudence has held that “mere confusion over a party’s proper service information is not a sufficient basis for good cause.” Johnson v. Univ. Med. Ctr. in Lafayette, 07-1683, p. 2 (La.11/21/07), 968 So.2d 724, 725 (citing Norbert v. Loucks, 01-1229 (La.6/29/01), 791 So.2d 1283). On appeal, a judgment dismissing an action for failure to timely request service is subject to the manifest error standard of review. Llopis v. Louisiana State Bd. of Dentistry, 13-0659, p. 5 (La.App. 4 Cir. 6/11/14), 143 So.3d 1211, 1214 (citing Johnson v. Brown, 03-0679, p. 2 (La.App. 4 Cir. 6/25/03), 851 So.2d 319, 322).

As this Court has recognized, the rationale behind the ninety-day notice requirement is obvious: “to insure that the defendant receives notice of the suit within a reasonable time after it has been commenced.” Id., 13-0659, p. 6, 143 So.3d at 1214 (quoting Anderson v. Norfolk Southern Railway Company, 02-230, p. 4 (La.App. 4 Cir. 3/27/02), 814 So.2d 659, 661). Thus, unless service is made on an authorized recipient, it will be deemed insufficient and improper. Tranchant v. State, 08-0978, p. 10 (La.1/21/09), 5 So.3d 832, 837 (“[Pjlaintiffs are strictly held to the obligation of serving the correct agent for service of process, [] as well as to the obligation of serving the named state defendants within the time period |4specified by La. R.S. 13:5107(D)(1).”) (citing Barnett v. Louisiana State Univ. Med. Ctr-Shreveport, 02-2576, p. 1 (La.2/7/03), 841 So.2d 725, 726).

A suit against a qualified state health care provider requires service to be effected on: (1) the head of the department for the Board of Supervisors of Louisiana State University Agricultural and Mechanical College; (2) the Office of Risk of Management; or (3) the Attorney General of Louisiana. La. R.S. 13:5107; La. R.S. 39:1538; Whitley v. State ex rel. Bd. of Sup’rs of Louisiana State Univ. Agr. Mech. Coll., 11-0040, p. 18 (La.7/1/11), 66 So.3d 470, 481. In the instant matter, plaintiff contends that service on these entities/persons was not necessary because Dr. Chesson was only sued in his individual capacity.

Louisiana State University Health Sciences Center is part of the Louisiana State University System, thus, University Hospital, where plaintiff underwent the surgical procedure, is a state-owned facility under the supervision and management of the Board of Supervisors. La. R.S. 17:3215(6). As such, albeit plaintiffs contention, Dr. Chesson is a state-employed physician and at least one of the above entities/persons should have been served.

Furthermore, plaintiff was well aware and amply advised of Dr. Chesson’s status as a qualified state health care provider. Specifically, plaintiff, had notice when: (1) the Division of Administration notified plaintiff by letter dated April 27, 2007 that Dr. Chesson was a qualified state health care provider per La. R.S. 40:1299.39.1; (2) a certificate of qualification was issued on June 6, 2007; (3) the “State of Louisiana, through the Board of Supervisors of Louisiana State University Agricultural and Mechanical College, on behalf of LSU Health Sciences Center, LSU Health Care Services Division and Ralph Chesson, M.D.” petitioned to institute discovery on June 22, 2007; and (4) plaintiff acquiesced to the surgical procedure at a state-owned facility, University Hospital.

| sPIaintiff s attempt to evade the service requirements by claiming Dr. Chesson is being sued individually is without merit. However, even assuming plaintiffs argument has merit, service would still not have been proper. A party may be served at his place of business, although such service is only effected by serving the party personally. Roper v. Dailey, 393 So.2d 85, 87 (La.1980) (quoting La. C.C.P. art. 1232). Plaintiff requested service on Dr. Chesson at 2020 Gravier Street, the address for Louisiana State University Lions Center Clinic. While the sheriffs return states that Dr. Chesson was personally served on April 23, 2010 at the Gravier address, Dr. Chesson contends that is not his correct address and personal service was never effected.

Dr. Chesson was a qualified state health care provider at the time the alleged malpractice occurred; therefore, La. R.S. 13:5107 and La. R.S. 39:1538 are applicable. Plaintiffs failure to timely effectuate service on the proper parties warranted dismissal of the suit as plaintiff advanced no compelling reason for her failure to ascertain proper service.

DECREE

For the foregoing reasons, we find the trial court did not err in sustaining defendant’s exception of insufficiency of service of process and dismissing plaintiffs suit without prejudice. Service was not proper as contemplated by La. R.S.13:5107(D), La. R.S. 39:1538, and La. C.C.P. art. 1201(C); and plaintiff failed to demonstrate good cause for her lack of service pursuant to La. C.C.P. art. 1672(C). The trial court judgment is affirmed.

AFFIRMED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissents with reasons.

|,I respectfully dissent from the majority opinion. The majority finds that the trial court was correct in sustaining the defendant’s exception of insufficiency of service of process and dismissing the instant suit. In the petition for damages, the plaintiff, Mirna Velasquez, named Ralph R. Ches-son M.D. as the defendant. Significantly, she did not name the State of Louisiana or a State agency. As a result, she had no obligation to effect service on the State pursuant to La. R.S. 39:1538 or La. R.S. 13:5107. Those statutes provide for service upon the head of the department, the Office of Risk Management, and the Attorney General when there is a claim or suit against the State or a State agency.

In addition, the majority finds that the defendant was never personally served, but the record does not support this conclusion. The sheriffs completed return reflects that personal service was made. The return of service is prima facie evidence of proper service. La. C.C.P. art. 1292; Ainsworth v. Ainsworth, 03-1626, p. 6 (La.App.2 4 Cir. 10/22/03), 860 So.2d 104, 110, writ denied, 03-2964 (La.1/9/04), 862 So.2d 995. For purposes of determining whether proper service was made, the officer’s return of citation is given great weight, and the burden rests on the party attacking it to establish otherwise by clear and convincing evidence. Ainsworth, supra. The record is void of any such evidence. Therefore, the defendant did not meet his burden in proving that the sheriffs completed return was invalid or incorrect.

For these reasons, I find that the trial court erred in sustaining the defendant’s exception of insufficiency of service of process and dismissing the suit. Accordingly, I would reverse and reinstitute the proceedings.

      . An amendment to La. R.S. 13:5107(D)(1) was enacted in the 2014 legislative session. This amendment is not implicated in the issues presented in this appeal. See 2014 La. Sess. Law Serv. Act 379 (S.B. 222) (WEST)

      . La. R.S. 13:5107(D) provides:
      (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision' or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.

        (2) If service is not requested by the party filing the action within the period required in Paragraph (1) of this Subsection, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C) ...

      . See La. C.C.P. art. 1201(C) providing: "Service of the citation shall be requested on all named defendants within ninety days of commencement of the action.”

      . La. C.C.P. art. 1672(C) provides:
      A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

      . It should be noted that requesting service on Dr. Chesson at this address is completely contrary to plaintiffs contention that she is suing Dr. Chesson in his individual capacity.

      . La R.S. 39:1538 requires service upon the head of the department, the Office of Risk Management, and the Attorney General when there is a claim against the State or its agencies for negligent or wrongful acts or omissions of any employee of the agency while acting within the scope of his office or employment.

      . La.'R.S. 13:5107 provides that service may be perfected upon the Attorney General or the department head when there is a suit against the State or its agencies.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Melik A. SPENCER.
    No. 2014-KA-0003.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

b Melik Spencer (“Mr. Spencer”) appeals his convictions and sentences for violation of La. R.S. 14:64 and 14:64.3, armed robbery with a firearm. Mr. Spencer assigns as error that the State failed to present sufficient evidence for the jury to find, beyond a reasonable doubt, that he was guilty of armed robbery with a firearm. Additionally, Mr. Spencer avers that the sentences imposed by the trial court were excessive. We find that in light of Mr. Spencer’s taped confession to police, the testimony of the victims, and their positive identification of Mr. Spencer, the evidence was sufficient to convict Mr. Spencer. Further, we find the sentences imposed in this case are not excessive as they are within the sentencing range and the trial court provided sufficient reasons for the sentences imposed. Accordingly, we affirm the convictions and sentences of Mr. Spencer.

PROCEDURAL HISTORY

In October 2011, Mr. Spencer was charged with three counts of armed robbery with a firearm in violation of La. R.S. 14:64 and 14:64.3. He pled not guilty to all counts at his arraignment. After hearings on motions, the trial court Rdenied Mr. Spencer’s motions to suppress evidence, identification and statement and found probable cause. In January 2013, the trial court granted co-defendant Shane Spencer’s motion to sever defendants, but denied Mr. Spencer’s motion to sever counts. A jury trial was held in March 2013, wherein the jury found Mr. Spencer not guilty on count one and guilty as charged on counts two and three. Thereafter, the trial court sentenced Mr. Spencer to serve thirty-five years at hard labor without benefit of parole, probation or suspension on each count and said sentences to be served concurrently. Pursuant to La. R.S. 14:64.3, the trial court sentenced Mr. Spencer to an additional five years at hard labor without benefit of parole, probation or suspension of sentence on each count and said sentences to be served consecutively to the initial thirty-five year sentences but concurrently to each other. Mr. Spencer’s motion for appeal was granted, and this appeal follows.

FACTUAL BACKGROUND

The events on August 9, 2011, and August 10, 2011, provide the factual background in the present matter.

Testimony of Jason Washington

Jason Washington (“Mr. Washington”) testified that at approximately 6:45 p.m. on August 9, 2011, he was walking on Gentilly Boulevard, near Franklin Avenue, when he was robbed by a man with a gun. The perpetrator took his cell phone and initially, the perpetrator chased after Mr. Washington, when he ran to his home on Verbena Street to call the police. Eventually, the perpetrator gave upland ran off. Mr. Washington stated that there were two other people with the perpetrator, but he was unable get a good look at them as he was focused on the person with the gun. He testified that he was not able to identify the other people involved when the police presented him with a photographic line-up. Mr. Washington stated on cross-examination that he had never seen Mr. Spencer before.

Testimony of Officer Tliaddeus Williams

On August 9, 2011, New Orleans Police Officer Thaddeus Williams (“Officer Williams”) responded to a call of armed robbery with a gun at 2766 Verbena Street. The officer met with the victim, Mr. Washington, who stated that he was robbed in the 4800 block of Gentilly Boulevard. The victim stated he was chased from the location of the robbery and returned to his home. Mr. Washington told the officer that the perpetrator took his cell phone. Officer Williams stated that the victim described the perpetrator as an African-American male, between the ages of sixteen and seventeen, with a light complexion, slim build and wearing a white shirt and dark blue pants.

Testimony ofNgui Dang

On August 10, 2011, Ngui Dang (“Ms. Dang”) was working at a laundromat at 8964 Old Gentilly Road. After lunch, a man, with a covering over his face and holding a gun, came in through the back door of the building. He put a bag on the counter and demanded money. Ms. Dang then put money from the laundromat in the bag. Taking the bag filled with money, the man ran off. Ms. Dang stated that | ¿she was so nervous as a result of the encounter that she called a friend who then called the police. At trial, she identified the tape of her friend calling thé police. Although Ms. Dang met with the police after the incident, she testified that she could not give a description of the perpetrator because of the cover over his face. She stated she could only see his eyes. At trial, Ms. Dang could not identify Mr. Spencer as the perpetrator.

Testimony of Dwayne Jacque

Dwayne Jacque (“Mr. Jacque”) testified that on August 10, 2011, he was involved in an argument with his girlfriend, Latricha Houston (“Ms. Houston”), at their home on Ford Street. Mr. Jacque decided to leave and take a ride in his truck. As he walked to his truck, three men ran up behind him. At trial, Mr. Jacque described the men as wearing white t-shirts wrapped around their faces but that they kept falling down. The individuals told him to “give it up.” Mr. Jacque told the men they could take his money out of his pants pocket. One of the men reached into Mr. Jacque’s pocket and took his money as well as keys to Mr. Jacque’s car and house. Mr. Jacque stated at trial that the three men then demanded that Mr. Jacque take them into his house. He refused, telling them that they would have to kill him first because his family was inside the home. The men took his car keys and drove off in his truck.

Mr. Jacque stated that he spoke with the police after the incident. At first, he did not want Ms. Houston to call the police. He stated that he was going to “handle it on his own terms,” but he knew that he would be serving jail time for an | ^unrelated offense, and he did not want to leave his family in a difficult situation. Mr. Jacque stated that he was able to identify the suspects in a photographic lineup. He testified that he knew the identity of the suspects and saw Mr. Spencer and his brother standing on their mother’s porch the day after the robbery.

Testimony of Latricha Houston

In August 2011, Ms. Houston lived at 3821 Ford Street with her boyfriend, Mr. Jacque, and her two daughters. On the evening of August 10, 2011, she and Mr. Jacque had been arguing. Mr. Jacque said he was going for a ride and walked out of the house. Ms. Houston testified that she walked out shortly after him to get her wallet out of their vehicle, a 2006 black Chevy Trailblazer. When she walked outside, she saw three men standing behind the truck. She heard Mr. Jac-que say, “You got everything I have.” She stated one of the men demanded that Mr. Jacque take him inside the house. Mr. Jacque refused, stating that they would have to kill him first because his family was inside the house. Ms. Houston testified that at that time she realized that Mr. Jacque was being robbed. She ran back inside when she heard one of the men yell to another to stop her. Ms. Houston was able to run into house and lock the door before the man reached her. He tried to open the door, but was unsuccessful. She then called the police.

At trial, Ms. Houston identified her phone call with the 911 operator. Ms. Houston testified that Mr. Jacque did not want her to call the police; he told her | (¡that he would handle the matter in his own way. Ms. Houston stated that she was looking at the men when she went outside. She called the police the next day because she saw the men walking in the neighborhood. Ms. Houston stated during the robbery, the perpetrators had shirts covering their faces, but the shirts kept falling off, exposing their faces. She identified Mr. Spencer in a photographic lineup as one the perpetrators. She stated she was not forced or coerced into making an identification. She testified that she knew the perpetrators as they were friends with her son. She stated that she was absolutely positive of her. identification.

Testimony of Detective Joseph Caminita

Detective Joseph Caminita (“Detective Caminita”) investigated the armed robbery that occurred on August 10, 2011, in the 3800 block of Ford Street. He interviewed one of the victims, Mr. Jacque, and was on the scene during the recovery of their vehicle, which was recovered at the intersection of Iroquis and Pocahontas Streets. The officer spoke with the victim and obtained descriptions of the perpetrators. Mr. Jacque stated that the three men approached him from the rear and remained behind with the vehicle, with a gun to his head. The perpetrator with ,the gun was an African-American male, light skinned, 5'8" to 5'10", and wearing a white t-shirt, which covered the lower portion of his face, and stone-washed blue jeans. The two other subjects were also wearing white t-shirts and pulled them up to cover the lower portion of their faces; however, the shirts kept falling down. All three perpetrators were in their late teens to early twenties. | .¡Detective Caminita stated that he stayed on the scene until the crime lab technicians arrived. The crime lab technicians processed the scene for fingerprints and took photographs. The case was then transferred to another detective.

Testimony of Detective Christopher La-Borde

Detective Christopher LaBorde (“Detective LaBorde”) investigated the armed robberies that took place on August 9, 2011 and August 10, 2011. He spoke with the responding officers who handled the robbery that occurred on August 9th in the 4300 block of Gentilly Boulevard and read the initial reports. Detective LaBorde developed a few suspects in that area who were possibly involved in the robberies. He obtained photographic lineups, which included Mr. Spencer and his brother, and presented the lineups to Ms. Houston and Mr. Jacque. Ms. Houston identified Shane Spencer, Mr. Spencer’s brother. Mr. Jacque identified Mr. Spencer and Shane Spencer. Detective LaBorde also showed the photographic lineups to Mr. Washington and Ms. Dang. Mr. Washington identified co-defendant Brian Richard (“Mr. Richard”) as the perpetrator, and Ms. Dang could not identify anyone.

The officer then obtained arrest warrants for Mr. Spencer, Shane Spencer and Mr. Richard. Mr. Spencer and his brother were arrested on August 17, 2011, at their residence. A search of Mr. Spencer’s bedroom resulted in the seizure of over one hundred rounds of ammunition, two extra-large t-shirts, brass knuckles, one .22 caliber twenty-four inch rifle, one .38 caliber three inch barrel pistol, five cell phones and a pellet pistol. After Mr. Spencer was arrested, he was taken to the |RThird District Station. Detective LaBorde advised Mr. Spencer of his Miranda rights, and Mr. Spencer gave the officer a statement concerning his involvement in the robberies. The officer identified the taped statement that was played for the jury.

In the taped statement, Mr. Spencer acknowledged that he was present when Brian Richard robbed Mr. Washington. Mr. Spencer stated that he, along with three other men, watched as Mr. Richard pulled a gun on a man and took the man’s cell phone. Mr. Spencer told Detective LaBorde that he had no intent to rob anyone that day, but that Mr. Richard talked about robbing someone and having the group of men watch him rob someone. Mr. Spencer stated that Mr. Richard chased the man after the robbery, and the man ran off. Mr. Spencer indicated that he did not know the victim.

Mr. Spencer also admitted in the taped statement that he was the lookout when Mr. Richard robbed a laundromat on August 10th. He stated that Mr. Richard called and asked him to watch the surroundings for police while he robbed a laundromat. Mr. Spencer explained to Detective LaBorde that Mr. Richard told him that he showed his gun to the woman, and the woman gave him the money. Mr. Spencer indicated that Mr. Richard had a red shoe bag on his back when he came out of the laundromat. Mr. Spencer stated that he and Mr. Richard went back to his house after the robbery.

ERRORS PATENT

A review of the record for patent errors reveals none.

\SUFFICIENCY of evidence

Mr. Spencer argues that the State failed to produce sufficient evidence for the jury to find, beyond a reasonable doubt, that he was guilty of two counts of armed robbery with a firearm.

When reviewing a claim of insufficiency of evidence, the appropriate standard was set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court must determine whether the evidence, “viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). See also State v. Brown, 03-0897 (La.4/12/05), 907 So.2d 1; State v. Veal, 12-0712 (La.App. 4 Cir. 5/1/13), 116 So.3d 779, writ denied, 13-1237 (La.12/2/13), 126 So.3d 498; State v. Batiste, 06-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810. If the State uses circumstantial evidence to prove the elements of the offense, “La. R.S. 15:438 requires that ‘assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.’ ” State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657.

Mr. Spencer was convicted of two counts of armed robbery with a firearm. In order to support this verdict, the State had to prove: “(1) the taking, (2) of anything of value, (3) from a person or in the immediate control of another, (4) by 11tithe use of force or intimidation, (5) while armed with a dangerous weapon.” State v. Robinson, 11-0066, p. 8 (La.App. 4 Cir. 12/7/11), 81 So.3d 90, 95 (citing State v. Carter, 99-2234, p. 31 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 144.) A gun used in connection with and at the scene of a robbery is as a matter of law a dangerous weapon. State v. Refuge, 300 So.2d 489, 491-92 (La.1974); See also La. R.S. 14:2. Moreover, in the prosecution of armed robbery, “the act of pointing a gun at a victim constitutes a use of force or intimidation.” State v. Allen, 10-430, p. 10 (La.App. 5 Cir. 2/15/11), 62 So.3d 156, 162.

La. R.S. 14:24 states in pertinent part, “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime, are principals.”

Although La. R.S. 14:24 provides that all persons “concerned in the commission of a crime” are principals, only those persons who knowingly participate in the planning or execution of a crime are principals. “Mere presence at the scene is therefore not enough to ‘concern’ an individual in the crime.” State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428; State v. Quac Tran, 08-1103, p. 10 (La.App. 4 Cir. 8/13/09), 18 So.3d 165, 171.

In order to be convicted as a principal, the State must show that a defendant has the requisite mental intent to commit the crime. State v. Newman, 03-1721, p. 13 (La.App. 4 Cir. 7/7/04), 879 So.2d 870, 878; State v. Harry, 01-2336, p. 7 (La.App. 4 Cir. 6/26/02), 823 So.2d 987, 993. Although factors that can contribute to Inthe finding that a defendant is a principal include “ ‘standing by at the scene of the crime ready to give some aid if needed ... it is necessary that the principal actually be aware of the accomplice’s intention.’ ” State v. Anderson, 97-1301, p. 3 (La.2/6/98), 707 So.2d 1223, 1225; See also State v. Pleasant, 11-1675 (La.App. 4 Cir. 10/17/12), 102 So.3d 247.

Mr. Spencer also contends that the State failed to show beyond a reasonable doubt that he was one of the perpetrators. “ ‘[W]hen the key issue is the defendant’s identity as the perpetrator ... the [S]tate is required to negate any reasonable probability of misidentifieation.’ ” State v. Weary, 03-3067, p. 18 (La.4/24/06), 931 So.2d 297, 311; State v. Kelly, 10-0853, p. 6 (La.App. 4 Cir. 12/12/10), 54 So.3d 1159, 1163.

In such cases, the appellate court examines the reliability of an identification using the five factors set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140, which include: “(1) the opportunity of the. witness to view the assailant at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation.” State v. Jones, 10-0018, p. 7 (La.App. 4 Cir. 11/10/10), 51 So.3d 827, 832 (citing State v. Stewart, 04-2219, p. 6 (La.App. 4 Cir. 6/29/05), 909 So.2d 636, 639); See also State v. Mathieu, 07-0204, p. 16 (La.App. 4 Cir. 2/27/08), 980 So.2d 716, 725.

| i?“The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction.” State v. Wells, 10-1338, p. 5 (La. 4 Cir. 3/30/11), 64 So.3d 303, 306. A factfinder’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 09-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996.

In regards to the armed robbery of Ms. Dang at the laundromat, Mr. Spencer admitted in his statement to Detective LaBorde that Mr. Richard asked him to be his lookout while he robbed the store. Mr. Spencer’s confession reveals that he knew Mr. Richard intended to rob the laundromat and willingly participated in the robbery as the lookout. Mr. Spencer told Detective LaBorde that Mr. Richard told him that he showed his gun to the woman, and the woman gave him the money. Mr. Spencer also told the detective that Mr. Richard had a red shoe bag on his back when he came out of the laundromat. Additionally, Mr. Spencer stated that he and Mr. Richard went back to his house after the robbery. While Ms. Dang did not identify him as the person who robbed her, Mr. Spencer’s own confession identifies himself as a principal in the offense of an armed robbery with the use of a firearm.

Further, Ms. Houston and Mr. Jacque both identified Mr. Spencer as one of the persons who robbed them of their vehicle on August 10, 2011. Mr. Jacque stated that Mr. Spencer was one of three men who approached him with a gun and took his keys and money from his pants pocket. Mr. Jacque testified that the three men took his truck after he refused to take them into his house. Mr. Jacque | ^indicated that he was able to identify the men even though they had t-shirts covering the bottom of their faces because the t-shirts kept falling down. He stated that he recognized Mr. Spencer from the neighborhood. Specifically, Mr. Jacque testified that he saw Mr. Spencer and his brother in the neighborhood the day after the robbery.

Ms. Houston testified that she saw the men when she came outside. She saw that one of them had a gun, and another ran after her when she ran back inside the house. Ms. Houston stated that she knew Mr. Spencer because he lived in the neighborhood and was friends with her son. She also testified that she saw Mr. Spencer and his brother in the neighborhood the next day.

Both Ms. Houston and Mr. Jacque identified Mr. Spencer in a photographic lineup and at trial as one of the perpetrators. They stated that they were not forced or coerced into making the identifications. Both testified that they were positive of their identifications. Mr. Jacque stated that the incident took several minutes, and he was able to clearly see Mr. Spencer’s face because the shirt covering his face kept falling down. Ms. Houston stated that she knew Mr. Spencer before the robbery because he was a friend of her son and had visited her home.

The testimony produced by the State shows no opportunity for misidentification and supports Mr. Spencer’s convictions for armed robbery with a firearm. Mr. Spencer’s confession, in which he admits to his participation as a look out, is sufficient for a jury to find, beyond a reasonable doubt, that the defendant was guilty of the armed robbery of Ms. Dang. Likewise, the testimony | Mof Ms. Houston and Mr. Jac-que is sufficient to prove, beyond a reasonable doubt, that Mr. Spencer was guilty of the armed robbery of Mr. Jacque. Accordingly, we find this assignment of error is without merit.

EXCESSIVE SENTENCE

Mr. Spencer also contends that the sentences imposed by the trial court are excessive. A review of the record reflects Mr. Spencer did not file a motion to reconsider sentence and did not object to the sentence at the time it was imposed. La.C.Cr.P. art. 881.1 provides that the State or the defendant must make or file a motion to reconsider the sentence at or within thirty days of sentence to preserve an objection to the sentence for appellate review.

Additionally, this Court has repeatedly held that the failure to file a motion to reconsider sentence or to object in any way to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. See State v. McCarthy, 12-0342 (La.App. 4 Cir. 3/27/13), 112 So.3d 394; State v. Jenkins, 09-1551 (La.App. 4 Cir. 6/30/10), 45 So.3d 173; State v. Stewart, 04-2219 (La.App. 4 Cir. 6/29/05), 909 So.2d 636; State v. Rodriguez, 00-0519 (La.App. 4 Cir. 2/14/01), 781 So.2d 640; State v. Tyler, 98-1667 (La.App. 4 Cir. 11/24/99), 749 So.2d 767.

Mr. Spencer argues,, however, that the failure to file a motion to reconsider sentence constituted ineffective assistance by his trial counsel. Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief, filed in the trial court where a full 115evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729, 737 (La.1984); State v. Johnson, 557 So.2d 1030, 1033 (La.App. 4 Cir.1990). “Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal.” State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992); State v. Seiss, 428 So.2d 444, 449 (La.1983). In this particular case, we find there is sufficient evidence to rule on the merits of the claim and address the issue on appeal.

The appellant’s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant must show that counsel’s performance was deficient and that the deficiency prejudiced the relator. Id., 466 U.S. at 687, 104 S.Ct. at 2064. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. Counsel’s deficient performance will have prejudiced the appellant if he shows that the errors were so serious as to deprive him of a fair trial. Id. To carry his burden, the appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 466 U.S. at 694, 104 S.Ct. at 2068. The appellant must make both showings to prove that counsel was so ineffective as to require reversal. Id.

[)6On appeal, a claim of excessive sentencing is held to a high standard of review:

Excessive sentences are prohibited under the Eighth Amendment of the Unites States Constitution and La. Const, art. I, § 20. A sentence may be constitutionally excessive even when the sentence falls within the range permitted by statute. See State v. Sepulvado, 367 So.2d 762, 769 (La.1979). For a sentence to be found excessive, it must be “so grossly disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice.” State v. Cann, 471 So.2d 701, 703 (La.1985). The district court is granted broad sentencing discretion, and we will not overturn the district court’s judgment absent an abuse of that discretion. See State v. Walker, [20]00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462.
To determine whether the district court has abused its broad sentencing discretion, we first discern whether the court took into account the sentencing criteria listed in La.C.Cr.P. art. 894.1. See Sepulvado, 367 So.2d at 767-768. The district court, while not required to expound on all factors listed in Article 894.1, is required to take into account both aggravating and mitigating factors. See State v. Square, 433 So.2d 104, 110 (La.1983). Our purpose is not to enforce mechanical compliance by a sentencing judge, but to ensure that there is a factual basis for the sentence imposed. See State v. Batiste, [20]06-0875, p. 18 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, 820. If we find that the district court properly articulated its reasons for the defendant’s sentence, we then determine whether the defendant’s sentence was tailored to both the severity of his crime and his personal situation. See State v. Spencer, 374 So.2d 1195 (La.1979).

State v. Smith, 11-0664, p. 23-24 (La.App. 4 Cir. 1/30/13), 108 So.3d 376, 390, writ denied, 13-0472 (La.10/4/13), 122 So.3d 551.

Under La. R.S. 14:64(B), “[w]hoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” Additionally, “[w]hen the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension 117of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.” La. R.S. 14:64.3(A).

In the present matter, the trial court sentenced Mr. Spencer to serve thirty-five years at hard labor without benefit of parole, probation or suspension on each count, said sentences to be served concurrently. The trial court then enhanced each sentence under La. R.S. 14:64.3 and sentenced Mr. Spencer to an additional five years at hard labor without benefit of probation, parole or suspension of sentence on each count, said sentences to be served consecutively to the initial thirty-five year sentence but concurrently to each other.

In State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court stated that sentences of thirty-five to fifty years have been found to be acceptable for first offenders convicted of armed robbery, (citing State v. Augustine, 555 So.2d 1331, 1332 (La.1990), and State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d 49, 50). In State v. Lewis, 08-1308 (La.App. 3 Cir. 4/1/09), 16 So.3d 1, the court found that the defendant’s thirty-year sentence was within the accepted sentence range for first felony offenders convicted of armed robbery. In Lewis, the defendant grabbed the victim, pulled a knife on him and made him take all the money out of the register. The defendant also took the victim’s cell phone and then rode off on his bike.

In State v. Hartwell, 03-1214 (La.App. 5 Cir. 1/27/04), 866 So.2d 899, the defendant was found guilty of two counts of armed robbery. The defendant was |issentenced to thirty-five years on each count of armed robbery with an additional five years on each count to be consecutively served to the armed robbery sentence for commission of the armed robbery with a firearm. On appeal, the defendant claimed that his sentences were constitutionally excessive because he was a first offender, and the victims were not hurt. Id., 03-1214, p. 11, 866 So.2d at 906. The court noted that the trial judge considered the defendant’s age of twenty-five years. Id. The court also relied upon the fact that the trial judge found that the defendant actions were horrible and that one of the victims testified that she was afraid she would die during the robbery. Id., 03-1214, p. 11-12, 866 So.2d at 906-907.

A sentence of forty years for a first armed robbery offender was affirmed in State v. Duncan, 09-232 (La.App. 5 Cir. 11/10/09), 28 So.3d 410. In Duncan, the court noted that both victims, while not physically hurt, testified that they were afraid for their lives and continued to be affected by the incident. Id., 09-232, p. 12, 28 So.3d at 417. One of the victims testified that he felt intimidated and feared for his life and that of his family. Id.

In the case at bar, the trial court, prior to sentencing, noted that Mr. Spencer was twenty years old. The trial court also noted that Mr. Spencer had a prior arrest for aggravated assault, and subsequent to the present case, he pled guilty to being in possession of contraband, specifically, a shank, while in prison. The trial court received victim impact testimony concerning Ms. Dang, which indicated that she 119was so affected by the robbery that she was unable to return to her family’s business in the Gentilly neighborhood. In imposing Mr. Spencer’s sentence, the trial court took into consideration the aggravating circumstances of the robberies and the effects upon the victims. The trial court recalled the testimony of Mr. Jacque in that Mr. Spencer and his co-perpetrators wanted him to take them into his house. Mr. Jacque refused, stating they would have to kill him first. The trial court also recounted the testimony of Ms. Houston who stated that she heard the men rattling the front door knob as they tried to get into her house. Further, the court expressed concern about the presence of children in the house and that the children were affected by seeing their parents traumatized by the incident.

We find that the trial court provided sufficient reasons for the sentences imposed. In light of the State v. Smith and its progeny, the sentences imposed are not excessive. Therefore, despite the fact that Mr. Spencer’s trial counsel failed to file a motion to reconsider sentence, we find counsel’s failure to do so did not prejudice Mr. Spencer. Accordingly, we find this assignment of error is without merit.

DECREE

For reasons set forth above, we affirm Mr. Spencer’s convictions and sentences.

AFFIRMED.

      . Shane Spencer is Mr. Spencer’s brother and co-defendant in the present matter. For ease of discussion, Shane Spencer is referred to herein as "Shane Spencer.”

      . Mr. Jacque acknowledged that, at the time of trial, he was in prison for possession with the intent to distribute marijuana.

      . Ms. Houston also called OnStar to have the vehicle shut off.

      . "Shank” is prison slang for a homemade knife or sharp instrument.

      . State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1.


author: SANDRA CABRINA JENKINS, Judge. DYSART, J.,

text:
    Kevin WENDEL and his Wife, Vickie Wendel, individually and on Behalf of the Estate of their Minor Children Laine and Chloe Wendel v. TRAVELERS INSURANCE COMPANY, Terrell Gilbert and Allstate Insurance Company.
    No. 2014-CA-0002.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2014.

      Robert L. Manard, III, Wendy E. Ma-nard, Robert L. Manard, New Orleans, LA, for PlaintiffAppellee.
    Mindy Brickman, Cara E. Hall, McGlin-chey Stafford, PLLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

[, This is a personal injury action arising out of a rear-end motor vehicle accident. Plaintiffs, Kevin Wendel and wife Vickie Wendel, individually and on behalf of their minor children, brought this action against the rear-ending motorist, Terrell Gilbert, Travelers Insurance Company, and Wing-foot Commercial Tire Systems, LLC. Summary judgment was granted in favor of plaintiff on the issue of liability -and a jury trial was commenced solely as to damages. For the following reasons, we affirm the jury verdict.

FACTS AND PROCEDURAL HISTORY

On February 4, 2009, plaintiff, Kevin Wendel, was injured when a vehicle driven by defendant, Terrell Gilbert, rear-ended his automobile. Shortly after the accident, plaintiff began experiencing neck and back pain. Within a few days of the accident, plaintiff sought the medical attention of a chiropractor, Dr. Bill Batherson. Dr. Batherson recommended that plaintiff set up an appointment with his office, Spine Care Clinic, if the injuries continued. Plaintiff called Dr. Batherson’s office on the tenth day to reserve the next available appointment as he was still experiencing pain. It was ultimately established that plaintiff had a herniated disc in his neck, which required a surgical fusion, and low back disc |2injuries, which required epidural injections. Plaintiffs surgical procedures were unsuccessful and plaintiff was diagnosed with “chronic regional pain syndrome,” which is incurable.

On. September 14, 2009, plaintiff filed suit naming as defendants Terrell Gilbert, Travelers Insurance Company, and Wing-foot Commercial Tire System, LLC. On May 31, 2011, summary judgment was granted in favor of plaintiff on the issue of liability. The case proceeded to trial in June, 2013 solely as to damages, during which time defendants moved for a directed verdict on plaintiffs wife’s and children’s claims for loss of consortium. The trial judge granted the motion on behalf of plaintiffs wife but denied the motion on behalf of his children, leaving that issue for the jury to decide.

Following a six-day trial, the jury returned a verdict in favor of plaintiff. The following awards were rendered:

A.KEVIN WENDEL
1) Past medical expenses $175,540.43
2) Future medical and rehabilitation expenses $1,986,317.00
3) Past, present, and future physical pain and suffering $350,000.00
4) Past, present, and future mental anguish $150,000.00
5) Loss of enjoyment of life $50,000.00
6) Past lost wages $190,161.00
7) Future loss of earning capacity $931,000.00
8) Loss of personal services $40,000.00
TOTAL $3,873,018.43
B. LAINE WENDEL 1) Loss of consortium $50,000.00
C. CHLOE WENDEL 1) Loss of consortium $50,000.00

On June 28, 2013, the trial court entered a judgment reflecting the jury’s verdict. Defendants subsequently filed Motions for Judgment Notwithstanding the Verdict (JNOV) and/or New Trial. The trial court denied these motions and this appeal followed.

|sDISCUSSION

On appeal, defendants assign two errors: (1) the trial court erred in denying defendants’ motion for directed verdict on plaintiffs daughters’ claims for loss of consortium; and (2) the trial court’s awards for past lost wages and future loss of earning capacity, future medical and rehabilitation expenses, and general damages are erroneously excessive and should be reduced.

Plaintiff alleges the trial court erred in a number of ways in his brief. However, plaintiff answered the appeal and only assigned two errors: (1) the trial court’s awards for general and special damages are inadequate and must be increased; and (2) the trial court erred in granting defendants’ motion for directed verdict on plaintiffs wife’s claim for loss of consortium.

Whether the trial court erred in its rulings regarding the issues raised in plaintiffs brief, but not in his answer to appeal, are not properly raised issues on appeal. Miller v. S. Baptist Hosp., 2000-1352, p. 20 (La.App. 4 Cir. 11/21/01), 806 So.2d 10, 23 (citing La. C.C.P. art. 2133); Minvielle v. Minvielle, 2000-1039, p. 4 (La.App. 5 Cir. 11/15/00), 776 So.2d 1223, 1226; Girgis v. Macaluso Realty Comp., Inc., 2000-0753, p. 11 (La.App. 4 Cir. 1/31/01), 778 So.2d 1210, 1217. Accordingly, the issues raised only in plaintiffs brief have not been preserved and we are prevented from addressing, them. Plaintiff also seeks frivolous appeal damages, including an award for attorney’s fees, in his answer.

Motions for Directed Verdict

The trial court’s standard when ruling on a directed verdict is whether “after considering the evidence in the light most favorable to the party opposed to the 14motion, [the trial court] finds that it points so strongly and overwhelmingly in favor of the moving party that reasonable minds could not arrive at a contrary verdict on that issue.” Simon v. American Crescent Elevator Co., 99-2058, p. 14 (La.App. 4 Cir. 4/26/00), 767 So.2d 64, 73-4 (quoting Moore v. Safeway, Inc., 95-1552 (La.App. 1 Cir. 11/22/96); 700 So.2d 831, 847). The trial court has much discretion in determining whether a motion for a directed verdict should be granted. Everhardt v. Louisiana Dep’t of Transp. & Dev., 2007-0981, p. 13 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1047 (citing Delaney v. Whitney National Bank, 96-2144, pp. 9-10 (La.App. 4 Cir. 11/12/98), 703 So.2d 709, 717).

The standard of review for the appellate court is “not whether a plaintiff proved his case by a preponderance of the evidence, but rather ... upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of the plaintiff.” Id. (citing Davis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 2003-2219, pp. 7-8 (La.App. 4 Cir. 11/17/04), 887 So.2d 722, 727). Moreover, the propriety of a directed verdict must be evaluated in light of the substantive law related to the claims. Id., 2007-0981, p. 14, 978 So.2d at 1047 (citing Tanner v. Cooksey, 42,010, p. 6 (La.App. 2 Cir. 4/4/07), 954 So.2d 335, 339).

Loss of consortium in regards to a parent-child relationship involves a loss pertaining to aid, assistance, companionship, affection, society, or service. Tadlock v. Taylor, 2002-0712, p. 13 (La.App. 4 Cir. 9/24/03), 857 So.2d 20, 31 (citing Spears v. Jefferson Parish School Board, 94-352, p. 7 (La.App. 5 Cir. 11/16/94), 646 So.2d 1104, 1107). For a spouse’s loss of consortium claim, in addition to the above listed items, another element is the impairment of sexual relations. Ritter v. Exxon Mobile Corp., 2008-1404, p. 11 (La.App. 4 Cir. 9/9/09), 20 So.3d 540, 547. Thus, to be compensable, plaintiff has to prove: (1) defendants’ liability, (2) plaintiffs damages, and (3) his spouse and/or children’s consequent loss of consortium damages. Tadlock, 2002-0712, p. 13, 857 So.2d at 31 (citing Cooper v. Liberty Mutual Ins., Co., 96-1522, p. 11 (La.App. 4 Cir. 8/20/97), 699 So.2d 115, 120).

In ruling on defendants’ motions for directed verdict, the trial court stated:

The court is going to grant the directed verdict as it relates to Vickie Wendel. However, it is going to deny the directed verdict as it pertains to Laine Wendel [and] Chloe Wendel. The Court does not find that there was any evidence that was presented which would support a loss of consortium claim for Vickie Wendel. However, the claim of the children, as it relates to loss of society, loss of ability ... to care for the children is clearly something that is a question of fact, and there has been sufficient evidence presented for that.

Plaintiff testified, as did his mother and sister, regarding the impact his injuries and subsequent depression had on his relationship with his daughters. Plaintiff testified that because of his chronic physical pain, he interacts with them much less and they now only live with him part-time because he is unable to tend to them like before. Viewing the evidence in the light most favorable to plaintiff, we are convinced that there is sufficient evidence to conclude that plaintiff proved a prima facie case for his daughters’ loss of consortium claims. Accordingly, these claims were properly before the jury and the trial court did not err in its denial of defendants’ motion for directed verdict.

On the contrary, there was no testimony regarding the impact plaintiffs injuries had on his marriage. Plaintiffs wife never testified and plaintiff acknowledged that their marriage was having problems even before the accident. | nWith no evidence showing plaintiffs marriage suffered because of his injuries from the accident upon which reasonable people could reach a contrary result, we find no error in the trial court’s grant of defendants’ motion for directed verdict.

General Damages

An appellate court may not overturn an award of general damages unless the trial court abused its broad discretion in making the award. Munch v. Backer, 2010-1544, p. 8 (La.App. 4 Cir. 3/23/11), 63 So.3d 181, 188 (citing Bouquet v. Wal-Mart Stores, Inc., 2008-0309, pp. 4-5 (La.4/4/08), 979 So.2d 456, 459). “The role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact.” Bouquet, 2008-0309, p. 5, 979 So.2d at 459 (citing Duncan v. Kansas City So. Ry. Co., 2000-0066, p. 13 (La.10/30/00), 773 So.2d 670, 682-83; Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993)). Prior awards are not referenced unless the trial court abused its discretion and then “only for the purpose of determining the highest or lowest point within the court’s discretion.” Guillot v. Daimlerchrysler Corp., 2008-1485, p. 30 (La.App. 4 Cir. 9/24/10), 50 So.3d 173, 196 (citing Logan v. Brink’s, Inc., 2009-0001, p. 13 (La.App. 4 Cir. 7/1/09), 16 So.3d 530, 540). If the award is so disproportionate to the injury that it “shocks the conscience,” the trial court has clearly abused its discretion. Id., 2008-1485, p. 31, 50 So.3d at 196 (quoting Logan, 2009-0001, p. 13, 16 So.3d at 540).

Here, the trial court heard testimony from plaintiffs interventional spine and pain management physician, Dr. Thompson, concerning his injuries, health |7prognosis, and this accident’s effect on plaintiffs well-being. Plaintiffs neurosurgeon, Dr. Vogel, also testified to the rarity of plaintiffs disease. Further, the trial court heard testimony from plaintiff himself, which was corroborated by his mother’s testimony, about his continuing pain and how the accident has impaired his life. After a thorough review of the record, we do not find the trial court abused its vast discretion in its award of damages.

Special Damages

The trier of fact is entitled to wide discretion in assessing the appropriate amount of special damages, which is then given great deference on review. Menard v. Lafayette Ins. Co., 2009-1869, pp. 13-14 (La.3/16/10), 31 So.3d 996, 1007 (citing Guillory v. Lee, 09-0075, p. 14 (La.6/26/09), 16 So.3d 1104, 1116; Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74). In Menard, the Louisiana Supreme Court identified the standard for reviewing an award of special damages:

An appellate court, in reviewing a jury’s factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong. This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court’s findings. The court must review the entire record to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. The issue to be resolved on review is not whether the jury was right or wrong, but whether the jury’s fact finding conclusion was a reasonable one.

Id., 2009-1869, pp. 14-15, 31 So.3d at 1007 (emphasis in original) (internal citations omitted). While an appellate court must review the trial court’s finding in light of the entire record, it “must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case |sdifferently.” Id., 2009-1869, p. 15, 31 So.3d at 1007 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). In the instant case, both parties allege the trial court’s award of special damages was in error in two categories: (1) past lost wages and future loss of earning capacity; and (2) future medical and rehabilitation expenses.

A. Past Lost Wages and Future Loss of Earning Capacity

A claim for lost wages need not be proven with mathematical certainty; it only requires such proof which reasonably establishes plaintiffs claim, which includes plaintiffs own reasonable testimony. Todd v. Delta Queen Steamboat Co., 2007-1518, pp. 4-5 (La.App. 4 Cir. 8/6/08), 15 So.3d 107, 112 (quoting Daniels v. Burridge, 00-1089, p. 7 (La.App. 4 Cir. 3/21/01), 785 So.2d 906, 911). Likewise, an award for future loss of earning capacity only requires ‘medical evidence which indicates with reasonable certainty that there exists a residual disability causally related to the accident’ at issue. Hammons v. St. Paul, 2012-6346, 12-0347, p. 6 (La.App. 4 Cir. 9/26/12), 101 So.3d 1006, 1011 (quoting Aisole v. Dean, 574 So.2d 1248, 1252 (La.1991)). Moreover, “ ‘[t]his medical evidence may be corroborated and complemented by lay testimony including that of the plaintiff.’ ” Id. (quoting Updegraff v. State ex rel. Dept. of Transp. & Dev., 2001-1048, p. 15 (La.App. 4 Cir. 10/2/02), 828 So.2d 693, 704). In determining a proper future loss of earning capacity award, factors to be considered are: “ ‘the plaintiffs physical condition before the injury, the plaintiffs past work history and work consistency, the amount the plaintiff would have earned absent the injury complained of, and the probability that the plaintiff would have continued to earn wages over the remainder of his working life.’ ” Scarberry v. Entergy Corp., 2013-0214, p. 36 (La.App. 4 Cir. 2/19/14), 136 So.3d 194, 217 (quoting Rathey v. Priority EMS, Inc., 2004-0199, p. 51 (La.App. 4 Cir. 1/12/05), 894 So.2d 438, 471).

In the present case, plaintiff suffered injuries to his neck and back from the accident at issue. As a result of these injuries, plaintiff underwent a surgical fusion and has received numerous epidural steroid injections. Dr. Vogel, the neurosurgeon who performed the surgeries, diagnosed plaintiff with “chronic regional pain syndrome” after plaintiffs surgeries were deemed unsuccessful as he continued to endure persistent pain.

With regard to loss of income, plaintiff testified that his sister has always filed his taxes since she maintained the records for their family business, Old World Builders. Although plaintiff testified he has never personally filed his tax returns, plaintiff affirmed he earned approximately $80,000.00 annually working for Old World Builders. This testimony was supported by the testimony of plaintiffs mother and sister who stated that plaintiff was in charge of the field operations of the business. Plaintiff also testified that he was unable to continue working' due to his physical limitations following this accident as his job primarily involved manual labor. Bobby Roberts, a vocational evaluation specialist, testified that there is only a 10-25% that plaintiff would be able to work at a sedentary or light job. Dr. Thompson, plaintiffs pain management doctor, further testified that he does not think it is likely plaintiff will return to the work force, especially given the medications he is on and the probable progression of his pain.

Both plaintiff and defendant provided testimony from their economists to estimate plaintiffs past and future lost wages. Dr. Shael Wolfson, plaintiffs | ineconomist, determined plaintiffs work-life to be approximately 18.77 years from the date of trial. Dr. Wolfson concluded, based on an annual income of $79,771.00, plaintiffs past lost wages were $352,992.00 and future loss of earnings were $1,300,064.00. Kenneth Boudreaux, defendants’ economist, found plaintiffs- work-life to be approximately 21.37 years from the date of trial. Mr. Boudreaux issued two reports, one in January, 2012 and the other in March, 2012. Mr. Boudreaux’s initial report calculated the figures using an annual salary of $79,771.00 with a disclaimer that he thought it was “unusual” that plaintiffs salary was so high and noted his four year delay in filing. Mr. Boudreaux’s subsequent report used an annual salary of $17,900.00, the maximum salary one can make without-legally filing taxes. Regardless of which report the jury endorsed in ' calculating its award, defendants argue on appeal that plaintiffs pre-accident salary was $29,337.23, maintaining the absolute highest value for past lost wages would be $128,203.70 and $626,936.61 for future lost wages.

The jury’s award of past lost wages for 4.37 years, the time between the accident and trial, implies an annual salary of $43,515.00 and future loss of earning capacity award suggests an annual salary between $43,565.75-$49,600.43, subject to which expert’s work-life estimation was adopted. Such an amount for plaintiffs loss of past wages and loss of future earning capacity is well supported by the record before us. Considering all testimony introduced by both parties, we conclude the jury’s awards for past lost wages and loss of future earning capacity are not excessive, but reasonable. We fail to find an abuse of the trial court’s much discretion in rendering these awards.

_jjjjB. Future Medical and Rehabilitation Expenses

In order for plaintiff to receive an award for future medical expenses, he must prove they are medically necessary by a preponderance of the evidence. Menard, 2009-1869, p. 13, 31 So.3d at 1006 (citing Hoskin v. Plaquemines Parish Government, 97-0061, p. 6 (La.App. 4 Cir. 12/1/97), 703 So.2d 207, 211). In Moody v. Cummings, this Court addressed the standard for awarding future medical expenses:

Future medical .expenses need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred ... Although a plaintiff is not required to prove the exact value of the necessary expenses, some evidence to support the award must be contained in the record ... If the fact finder can determine from past medical expenses or other evidence a minimal amount that reasonable minds could agree upon, then the award is proper.

2009-1233, p. 15 (La.App. 4 Cir. 4/14/10), 37 So.3d 1054, 1064 (quoting Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 2007-0158, p. 34 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, 187-88).

Applying this standard, we find the record demonstrates the existence of a reasonable factual basis for the trial court’s award for future medical and rehabilitation expenses. The jury heard plaintiffs testimony that he continues to have severe neck and back pain. Dr. Thompson, Mr. Roberts, and plaintiffs mother all testified that because of his constant pain, plaintiff is depressed. Dr. Thompson further testified that based on plaintiffs prognosis, he believed a cervical medial branch block, annual rhizotomy, tri-annual steroid injections, spinal court stimulator implant, bi-monthly pain management appointments, | ^psychiatric therapy, and routine prescription medications are all medically necessary for the remainder of plaintiffs life which was estimated at 38.5 years. Moreover, Dr. Thompson testified he believed plaintiff will need to have attendant care during his final years but could not determine how long that would be required. Dr. Wolfson compiled a report which included an estimated cost for each of Dr. Thompson’s recommendations. The jury heard Dr. Wolfson’s testimony concerning the costs and the record reflects that these figures are appropriate. Accordingly, we find a reasonable factual basis in the record for that award and will not disturb it.

Frivolous Appeal

Damages for a frivolous appeal will be awarded if the appeal is taken solely to delay the action, if the appellant does not seriously believe the law and argument that is being advanced, or if the appeal does not present a substantial legal question. Vincent v. Vincent, 2011-1822, p. 11 (La.App. 4 Cir. 5/30/12), 95 So.3d 1152, 1160 (citing Johnson v. Johnson, 2008-0060, pp. 5-6 (La.App. 4 Cir. 5/28/08), 986 So.2d 797, 801). Damages will not be granted unless the appeal is unquestionably frivolous as appeals are always favored. Dugas v. Thompson, 2011-0178, p. 15 (La.App. 4 Cir. 6/29/11), 71 So.3d 1059, 1068 (citing Haney v. Davis, 2004-1716, p. 11 (La.App. 4 Cir. 1/19/06), 925 So.2d 591, 598).

After a review of the record, we cannot conclude that defendants did not seriously believe they were entitled to relief or that the appeal was taken solely for delay or on an immaterial issue. We therefore decline plaintiffs request to award damages and attorney’s fees for a frivolous appeal.

11SDECREE

For the foregoing reasons, this Court finds no error in the trial court’s rulings on defendants’ motions for directed verdict. We further find the jury’s awards were clearly supported by a reasonable factual basis in the record. Accordingly, we affirm the trial court’s judgment

AFFIRMED.

DYSART, J., concurs in part and dissents in part.

DYSART, J.,

concurs in part and dissents in-part.

|,While I agree that the loss of consortium awards and the general damages award are appropriate, the record does not substantiate the past lost wages or future loss of earning capacity. It is the plaintiffs burden “of proving the time missed from work as a result of the injury.” Rathey v. Priority EMS, Inc., 04-0199, p. 51 (La.App. 4 Cir. 1/12/05), 894 So.2d 438, 471. “Past lost wages are susceptible of mathematical calculation, and the award is not subject to the much discretion standard.” Id. (Citation omitted.). Likewise, while “[fjuture lost wages awards are ‘inherently speculative and intrinsically insusceptible of being calculated with mathematical certainty,’ Id. (Citation omitted), they “must be proved with a reasonable degree of certainty; purely conjectural or uncertain future loss earnings will not be allowed” Burgard v. Allstate Ins. Co., 04-1394, p. 21 (La.App. 5 Cir. 5/31/05), 904 So.2d 867, 879 (Citations omitted). In this case, plaintiffs claims for past lost wages were not demonstrated by mathematical calculations” supported by competent evidence and his claim for future lost wages is likewise unsupported by the record.

Similarly, the record does not substantiate the sizable award for future medical and rehabilitation expenses. Our jurisprudence is well-settled that |g“[a]wards will not be made for future medical expenses which may or may not occur in' the absence of medical testimony that they are indicated and setting out their probable cost” McGraw v. Orleans Parish Sch. Bd., 519 So.2d 847, 850 (La.App. 4 Cir. 1/14/88) (Citation omitted; emphasis added.) It is the plaintiffs burden to “show that more probably than not, these [future medical] expenses will be incurred.” Id. The record does not reflect that plaintiff carried this burden of proof.

      . Specifically, plaintiff argues the trial court erred in: prohibiting a permanent disability line on the jury verdict form, omitting the requested jury charge on earning capacity, allowing economist Kenneth Boudreaux to testify, admitting evidence of plaintiff's failure to file tax returns prior to the accident, and plaintiff’s daughters’ loss of consortium awards.

      . Defendants argue in their brief that the general damages award of $650,000 was excessive. The $100,000 awarded to plaintiff’s children ($50,000 each) has already been addressed. The remaining value of $550,000 is attributable to: $350,000 for pain and suffering, $150,000 for mental anguish, and $50,000 for loss of enjoyment of life.

      . This amount includes the "draws” that Old World Builders paid on behalf of plaintiff to third parties as well as the "management fees” given directly to plaintiff. While it is disputed whether income includes the "draw” amounts, or solely "management fees,” this amount is recognized simply for noting plaintiff’s testimony.

      . Dr. Thompson testified that he believed prescription drugs are medically necessary for the rest of plaintiff’s life, including, but not limited to these specific medications as corn-parable new medicines are frequently released: Lortab, Robaxin, Neurontin, Cymbal-ta, and Zanaflex.