author: CARAWAY, J.

text:
    Tony O. POWELL, Plaintiff-Appellant v. Kevin C. CRAFT, City of West Monroe, and St. Paul Guardian Insurance Company, Defendants-Appellees.
    No. 48,004-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Eddie M. Clark, for Appellant.
    Hayes Harkey, Smith & Cascio, L.L.P., Monroe, LA, by C. Joseph Roberts, III, for Appellees.
    Before STEWART, CARAWAY and MOORE, JJ.
   CARAWAY, J.

|, After a bench trial, the trial court denied the plaintiffs claims. The trial court held that the plaintiff failed to prove that he was involved in a multi-vehicle automobile accident. The plaintiff appeals the trial court’s ruling and argues that it was manifestly erroneous. For the following reasons, we affirm.

Facts

On November 3, 2011, Tony Powell filed a petition for damages and personal injury he sustained from an automobile accident. The accident was a “chain-reaction” collision which occurred on November 5, 2010. The first vehicle was a Ford F-150 driven by the defendant, Kevin Craft. The defendant’s truck rear-ended the second truck, a Chevy 6000, driven by Marc Johnston. Johnston’s truck subsequently rear-ended Gloria Albritton, who was driving a red Pontiac Grand Prix. The plaintiff was driving his brother’s tan Cadillac Deville and claims to have been rear-ended in this multi-vehicle car accident. The defendant contested the plaintiffs claim and argues that Powell was not involved in this accident.

The bench trial was held on July 11, 2012. Craft testified that he was driving a West Monroe water department vehicle when his microphone dropped onto the floorboard of his vehicle. He stated that he reached down to pick it up and accidentally hit the accelerator. Craft failed to stop in time and rear-ended Johnston who subsequently rear-ended Albritton. He testified that he did not believe that Albrit-ton rear-ended Powell nor did he notice him until he was about to leave.

12At trial, Albritton testified that she ran into the car in front of her. She could not remember what kind of car she hit although she thought it was a truck. In addition, she thought that the driver was a white man. Powell is a black male who was driving his brother’s car, not a truck.

Two adjusters testified at the trial. Phillip Kubes appraised the damage on Albritton’s vehicle. He testified that she had $950.31 worth of damage to her rear bumper but no damage to the front of her vehicle. Albritton’s Pontiac has a plastic ABS bumper. According to Kubes, this type of material is important because:

Those grilles will pop out from the least bit of damage. They have two plastic clips in the bottom of it not much bigger than a toothpick that will allow those grilles to pop out any time that front bumper flexes and these grilles did not pop out and they were not loose at my inspection.

On November 23, 2010, John Eskew examined and appraised Powell’s vehicle. Eskew identified that the Powell Cadillac “sustained minor damage to the rear bumper.” Eskew noted that there were cracks in the upper surface of the back bumper. He testified that Powell had $567.54 worth of damage to his back bumper, but he could not say with certainty what caused the damage. Both appraisers agreed that the front bumper grille of Albritton’s vehicle would have come off if she had hit Powell. The trial court relied upon Kubes’ conclusion that the small, horizontal cracks in Powell’s bumper were inconsistent with the height of Albritton’s front bumper which was alleged to have caused them.

Powell could not attend the trial. As a result, his deposition was entered into the record. Powell stated that he was rear-ended by a white car |3and pushed into the nearby intersection. Although Albritton drives a red Pontiac Grand Prix, Powell stated that he remembers that a white car hit him, because the white car had a black mark on the tip of its front bumper. He stated that he sat in his car until the police officer arrived. After everyone gave their statements, Powell approached the police officer to give his account of the accident. Aside from this accident, Powell stated that he had been in two other prior accidents and suffered the same neck and back injuries as claimed in this accident. Powell’s chiropractor testified at trial. He treated Powell for two to three months as a result of neck and back injuries that Powell stated stemmed from a car accident.

Officer Vernon Pettingill was the Monroe police officer called to the accident scene. Since he was out of town during the trial, his deposition was taken and introduced after the trial. He stated that he was dispatched to a three-car accident. Craft admitted his fault and stated that he rear-ended Johnston, who hit Albritton. Officer Pettingill moved everyone to the nearby parking lot and began taking statements. Thereafter, he recalled that:

As I was just about finished and ready to leave I was approached by a subject, Mr. Powell ... He said, well, I was in the front and I said let me see your vehicle. So I looked at his vehicle, still had dust across the back. I didn’t see any indication on the back of his vehicle it was even touched so then I looked at the front of V3 to see if she had any indication of any visible damage that I was missing off of V4 on his vehicle. I didn’t see any visible damage to the front of that vehicle.

Officer Pettingill stated that the other accident victims failed to recognize Powell and did not believe that he was involved in the accident.

|/The trial court filed written reasons for judgment, noting inconsistencies in Powell’s and Albritton’s testimonies and the fact that these two witnesses provided the sole link to Powell’s involvement in the accident. Powell’s inconsistent testimony regarding the color and mark on the vehicle that allegedly hit him weighed against him. Additionally, the trial court did not find Albritton’s testimony credible. Based upon these credibility calls, the appraisers’ analyses, and the officer’s testimony, the trial court did not find that Powell carried his burden of proof.

Powell appeals the trial court’s adverse judgment and argues that the trial court was manifestly erroneous.

Discussion

An appellate court may not set aside a jury or trial court’s findings of fact in the absence of manifest error unless such finding is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). When considering whether or not to reverse a trial court’s factual determinations, an appellate court must conduct a two-part test:

1) the appellate court must find from the record that a factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong. Brewer v. J.B. Hunt Transp., Inc., 09-1408 (La.3/16/10), 35 So.3d 230, citing, Stobart v. State Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

In this case, the trial court heard testimony regarding varied versions of an accident, and was in the best position to determine the credibility of the witnesses. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands | ¿that great deference be given to the trier-of-fact’s findings, for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Scott v. State Farm Fire & Cas. Co., 47,-490 (La.App.2d Cir.9/26/12), 106 So.3d 607; Ratcliff v. Normand, 01-1658 (La.App.3d Cir.6/5/02), 819 So.2d 434. In fact, the court specifically stated in its reasons that it did not find Albritton to be a credible witness, given her shaken demeanor and inconsistent testimony. Aside from Powell’s testimony and the minor damage to his bumper, Albritton was the only other witness who suggested that Powell was involved in the accident.

“While Powell proved that his car was slightly damaged, he failed to prove that it was damaged as a result of the collision at issue. According to the police report, none of the other drivers, including Albrit-ton, noticed or talked to Powell after the accident. Powell was not stopped or located in front of Albritton’s vehicle after the accident. Powell’s presence was first observed by Officer Pettingill in the parking lot nearly an hour after the accident.

Furthermore, Powell’s testimony is inconsistent. Not only did he testify that a white car hit him, he also stated that it had a black mark on its bumper. Albritton’s car was red and her front bumper was intact and unblemished. The appraisers believed that it was nearly impossible for Albritton’s bumper to escape unscathed if contact was made with another vehicle. Officer Pettingill’s field test found dust on the front bumper of | ^Albritton’s car and rear bumper of Powell’s car, indicating a lack of physical contact.

Accordingly, the trial court’s determination that there is insufficient evidence to establish that Powell was involved in this collision is a reasonable assessment and therefore not clearly wrong. We affirm the trial court’s judgment. The plaintiff failed to meet his burden of proof that he was involved in this multi-vehicle car accident. Costs of appeal are assessed to Powell.

AFFIRMED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Edward TAKEWELL and Bonnie Faye Smith Takewell, Plaintiff-Appellees v. Rebekah Wyatt MASTERS, Wendell Wyatt, Juanita Wyatt Tucker and David Biddle, Defendant-Appellants.
    No. 48,111-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P., Monroe, LA, by Wendy E.W. Giovingo, Clara Moss Sartor, David Thomas Crigler, for Appellants.
    M. Randall Donald, West Monroe, LA, for Appellees.
    Before BROWN, MOORE and PITMAN, JJ.
   MOORE, J.

hThe sellers, Rebekah W. Masters, Wendell Wyatt, Juanita W. Tucker and David Biddle (“the Wyatts”), appeal a judgment ordering a reduction of purchase price of $11,885.71 to the buyers, Edward and Bonnie Takewell, and awarding attorney fees of $3,260. For the reasons expressed, we reverse and render.

Factual Background

On March 3, 2009, the Takewells signed a standard-form residential agreement to buy or sell (“buy-sell agreement”) by which they agreed to buy from the Wyatts a tract of land on Hwy. 80 in Calhoun, Ouachita Parish. The buy-sell agreement described the tract as a “beautiful 7 acres in perfect location for grocery store, storage buildings — offices—duplexes—or just build the home of your dreams.” Although the Wyatts were asking $87,000, they accepted the Takewells’ offer of $80,000. On March 20, the parties executed a cash sale deed describing the property as follows (with boldface in the original):

All that portion of the East one half of the Northwest quarter of the Northeast quarter (E £ of NW 1/4 of NE 1/4) of Section 25, Township 18 North, Range 1 East, Ouachita Parish, lying south of the Dixie Overland Highway, comprising a total of 10 acres, more or less.
LESS AND EXCEPT a one acre tract of land sold by deed filed in Conveyance Book 1401, Page 399, and a two acre tract of land sold by deed filed in Conveyance Book 1205, Page 479, of the records of Ouachita Parish, Louisiana.

Unable to find all the physical boundaries of the tract (it was seriously overgrown) and reluctant to impinge on their neighbors’ lands, the Takewells hired a surveyor, James Braswell, who found that the tract contained “5.96 ± acres,” nearly 15% less land than stated in the deed.

|2In March 2010, the Takewells filed this suit for a reduction in purchase price. Describing the transaction as a lump sum sale under La. C.C. art. 2494, they demanded a rebate of $11,885.71, the pro rata shortage. They also demanded attorney fees under the buy-sell agreement.

The Wyatts responded that the surveyor failed to include property affected by a 1939 right-of-way agreement for the Dixie Overland Highway (now known as Hwy. 80 or Cypress Street) and measured only to the south edge of the right-of-way instead of to the centerline of Hwy. 80. They also argued that the sale was actually one per aversionem under La. C.C. art. 2495, and not subject to any reduction for shortage.

At trial on June 2, 2011, Braswell, the surveyor, testified that the standard practice when a property abuts a highway is to measure to the edge of the right-of-way, and not to the centerline. Had he included the right-of-way, this would have added 0.37 acres to the total. Elaine Thomason, the realtor who handled the sale, testified that the sellers always described the tract as seven acres; she saw no boundaries on the property. Mr. Takewell also testified that he always understood it to be seven acres; he maintained he would not have offered $80,000 for a smaller tract. He stated that the offer was a lump sum, not a per-acre price. He admitted that he had placed a notation on the buy-sell agreement, “Buyer would like seller to show exact corner at back of right side,” but he did not get this information prior to the sale and did not hire the surveyor until afterward.

Mrs. Masters testified that she and her siblings had inherited this property from their parents, who bought it in the late 1960s. They always ¡(¡understood it to be seven acres, and the two sales recited in the property description and the tax assessor’s chart confirmed this; they had no intent to mislead anybody as to acreage. She agreed that the tract was so overgrown that she could not say where the boundaries were. Her husband, Jimmy Masters, testified that at the realtor’s request, he attempted to mark the back corners, but could not find all the boundaries. He thought the missing one acre was taken by the Hwy. 80 roadbed.

By “ruling and judgment,” the court found that the Takewells “did not get whet they intended nor what they paid for” and were entitled, under Art. 2494, to a reduction. The court awarded the reduction sought, $11,885.71. By later “ruling, judgment and order,” the court rejected the Takewells’ claim of a $9,729 attorney fee and awarded, instead, the reasonable fee of 32.60 hours at $100 an hour, or $3,260.

The Wyatts have appealed, raising four assignments of error.

The Parties’ Positions

By their first assignment, the Wyatts urge the court erred in finding this to be a lump sale, Art. 2494, when in fact it was a sale per aversionem, Art. 2495, for which no reduction is allowed. They argue that a sale per aversionem is a sale “with an indication of boundaries for a lump price,” Johnston v. Quarles, 3 La. 90 (1831), La. C.C. art. 2495, comment (b), and this applies whether the boundaries are visible or not, Cornish v. Kinder Canal Co., 267 So.2d 625 (La.App. 3 Cir.), writ ref'd, 263 La. 624, 268 So.2d 679 (1972). This property is bounded by a highway and by section lines, which despite being invisible are true boundaries, La. C.C. art. 78414 and Cornish v. Kinder Canal Co., supra. This sale, despite the repeated references to “7 acres,” is actually per aversionem and not subject to any reduction of price for shortage. Also, including the acreage measurement does not negate the fact that the sale is along boundaries, Passera v. City of New Orleans, 167 La. 199, 118 So. 887 (1928), and the inclusion of the phrase “more or less” in the description shows that the exact acreage was not essential to the transaction, Long-Fork LLC v. Petite Riviere LLC, 2007-1316 (La.App. 3 Cir. 6/11/08), 987 So.2d 831. Further, the buyer’s failure to survey the land suggests that exact acreage was not important to the buyer, Williams v. Townsend, 163 So.2d 871 (La.App. 2 Cir.1964). They argue that the instant description is very similar to the one in Williams and should likewise be construed as a sale per aver-sionem.

The Takewells respond that the district court committed no manifest error in finding a lump sale under Art. 2494. The Third Circuit has distinguished Cornish by holding that if “one boundary of the four-sided tract is not identified in the deed, it is not a sale per aversionem.” Lasiter v. Gaharan, 95-1056 (La.App. 3 Cir. 1/31/96), 670 So.2d 395, writ denied, 96-0573 (La.4/19/96), 671 So.2d 922. They also distinguish the deed in Long-Fork, supra, as containing much more language than “more or less” to refute that the buyers wanted exact acreage.

Discussion

The lump price sale is regulated by La. C.C. art. 2494, which states, in pertinent part:

| sArt. 2494. Sale of immovable for lump price

When the sale of an immovable has been made with indication of the extent of the premises, but for a lump price, the expression of the measure does not give the seller the right to a proportionate increase of the price, nor does it give the buyer the right to a proportionate diminution of the price, unless there is a surplus, or a shortage, of more than one twentieth of the extent specified in the act of sale. * * *

By contrast, the sale of a certain and limited body is regulated by La. C.C. art. 2495, which provides:

Art. 2495. Sale of a certain and limited body or of a distinct object for a lump price

When an immovable described as a certain and limited body or a distinct object is sold for a lump price, an expression of the extent of the immovable in the act of sale does not give the parties any right to an increase or diminution of the price in case of surplus or shortage in the actual extension of the immovable.

These articles were amended in 1993 as part of a large revision to the law of sales. La. Acts 1993, No. 841, § 1. The amendment removed, from Art. 2494, the reference to “a certain and limited body,” and moved this reference to Art. 2495. It also removed from Art. 2495 the term “per aversionem ” (Latin for “by boundary”) and the explanatory phrase “sold from boundary to boundary.” The revision comments explain that the amendment changed the law in part to effect a merger of Arts. 2494 and 2495 “to the effect of making every sale of immovable property described as constituting a certain and limited body a sale per aversionem.” (Emphasis added.) The comments further state that the sale of an immovable “with indication of boundaries” is a sale of a certain and limited body, as are sales “designated by the adjoining owners” and “designated by a particular Improper name.”

Even before the amendment, the jurisprudence held that the “lump sale,” the method of identifying land by acreage only, is the “weakest method known, yielding to every other method.” Motichek v. Perriloux, 231 La. 849, 93 So.2d 190 (1957); W.B. Thompson & Co. v. McNair, 199 La. 918, 7 So.2d 182 (1942). The courts tended to find a sale by boundary whenever possible, as in Johnston v. Quarles, supra, and Fitzgerald v. Hyland, 199 La. 381, 6 So.2d 321 (1942). Boundary descriptions always trumped references to stated amounts of land. Fitzgerald v. Hy-land, supra. The boundaries could be “natural or artificial,” as the court noted in Johnston v. Quarles, supra, and could even be invisible, such as a section line not marked by any physical monuments, as in Cornish v. Kinder Canal Co., supra, Kile v. Louisiana Limestone Aggregates, 378 So.2d 978 (La.App. 3 Cir.1979), unit denied, 380 So.2d 71 (1980), and Dwyer v. Smith, 10 La.App. 506, 121 So. 341 (La.App. 2 Cir.1929). The finding of a sale per aversionem promoted finality and certainty in real estate transactions. J. Peter Kovata, The Revision of the La. Civil Code Sales Title: In Many Ways a Non-Event, 40 Loy. L.Rev. 139,159 (1994).

The amendment approves and continues the jurisprudential tendency to find sales by boundary wherever possible. This is especially apparent in the transfer of the concept “certain and limited body” from the rule of lump sum sales into sales per aversionem, Art. 2495, and by the addition to that article of the concept that “an expression of the extent of the immovable” would not give rise to an increase or diminution of the price. In short, the 17amendment has granted the courts “the tools with which to find sales per aversion-em, even when no visible boundaries exist.” J. Peter Kovata, supra at 159-160.

With these principles in mind, we have closely analyzed the instant property description and are constrained to find that is must be classified as a “certain and limited body” under Art. 2495 and not subject to diminution for a shortage. It describes the tract as lying to the south of the Dixie Overland Highway, a physical boundary, and as comprising the east one-half of the northwest quarter of the northeast quarter (“E jé of NW 1/4 of NE 1/4”) of Section 25, T 18 N, R 1 E, three boundaries that are not physical but are easily ascertainable and universally accepted to mark property boundaries. Under the former Art. 2495, courts deemed section lines sufficient to mark boundaries. Cornish v. Kinder Canal Co., supra; Kile v. Louisiana Limestone, supra; Dwyer v. Smith, supra. Under the revised Art. 2495, which continues and, if anything, expands the reach of sales for a “certain and limited body,” we find the district court erred in classifying this as a lump sale.

With this conclusion, we further find that the Takewells are not entitled to a diminution of the price, despite the “expression of the extent of the immovable” in the act of sale. The statement of extent, or quantity, does not alter the essential classification of the sale. La. C.C. art. 2495; Arms v. New Orleans Area Council, 522 So.2d 668 (La.App. 4 Cir.), writ denied, 523 So.2d 1340 (1988). For these reasons, the Takewells are not entitled to a reduction of the purchase price; the district court’s judgment is legally |swrong, and will be reversed.

Conclusion

In light of our finding that the sale was for a certain and limited body and not subject to diminution under Art. 2495, we pretermit consideration of the Wyatts’ remaining assignments of error. For the reasons expressed, the judgment is reversed and judgment is hereby rendered dismissing the Takewells’ claims at their cost.

REVERSED AND RENDERED.


text:
    STATE of Louisiana, Appellee v. Billy T. SINGLETON, Appellant.
    No. 48,114-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Carey J. Ellis, III, for Appellant.
    Jonathan M. Stewart, District Attorney, James Richard Hatch, Kenneth Patrick Haines, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

It Charged with attempted second degree murder, Billy T. Singleton was found guilty of aggravated battery and sentenced to eight years at hard labor. He now appeals, urging the evidence was insufficient to convict and the sentence is excessive. We affirm.

Factual Background

Singleton’s victim was his wife, Sheron-da. Sheronda testified that in October 2010, their relationship was “not good,” and she recently told him she wanted a divorce because he was having an affair with another woman. Singleton admitted the affair but insisted he had broken it off about two months earlier.

On October 12, 2010, Singleton drove Sheronda from their home in Bernice, ostensibly to go to a car dealer in Minden and make a down payment on a 2007 Malibu. However, Singleton turned off Hwy. 2, saying he wanted to check on his mother’s “sinking” grave; Sheronda protested that he was not going the right way to the cemetery, and he replied, “It’s gonna be over.” He turned onto a remote oilfield access road, stopped the car and then pulled a .38 cal. RG revolver from under the driver’s seat. The two wrestled over the gun and, ultimately, three shots were fired, but the pair gave divergent accounts of what happened.

Sheronda testified that she never got possession of the gun, but jumped out of the car, begging him not to shoot her; he then exited the car, ran around the back and confronted her on the passenger side. Despite her pleas, he shot her in the chest. He then turned the gun on himself and pulled the trigger, but it would not fire. He pointed the gun at the ground and tried | ¡.again, and this time it fired; he then pointed it' at his own chest and fired successfully. He dropped the gun; Sher-onda picked it up and threw it into the woods. Singleton then took out his cell phone and called his sister; he handed the phone to Sheronda, and she told the sister it was true, Singleton had shot her and then shot himself. She was certain that both shots were fired outside the ear. After she tossed the gun, Sheronda called 911.

Singleton testified that they had been arguing, in part over her cell phone; he reached under the seat where he had stashed a gun, grabbed it and placed it on the seat between them. He insisted he did this only to scare her, but she reached for the gun and they wrestled over it. She got her hand on the handle and the gun discharged accidentally, striking her. He jumped out of the car and ran to the passenger door to check on her, but she shot him point-blank through the open window. He fell and lost consciousness. He maintained that Sheronda’s bullet wound was purely accidental.

Shortly after 4 p.m., Claiborne Parish 911 received a call from Sheronda reporting that Singleton had shot her and then turned the gun on himself. Because they were so deep in the woods, the operator told Sheronda to get in the car and “lay on the horn” to help the responders find them. EMTs arrived, and Sheronda and Singleton were airlifted to LSU Medical Center in Shreveport.

Detective Keel of the Claiborne Parish Sheriffs Office arrived shortly after the EMTs. He saw Sheronda standing in the front passenger door and Singleton lying on the ground. He did not interview them except to ask |3Sheronda where she had thrown the gun; she pointed into the woods. With the aid of a canine officer, they located the revolver, which had three cartridges fired from the chamber. Det. Keel found a bullet hole in the passenger door armrest and a bullet inside the door itself; it appeared that the bullet had entered the car door from a downward angle. He testified there was no evidence the gun had been fired inside the car. He verified lab reports showing the bullet recovered from the car door had been fired from the RG revolver found in the nearby woods.

Dr. Mary Edens, a professor of emergency medicine at LSU, treated both victims at the LSU emergency room. She testified that Sheronda had one gunshot wound to the right side of her chest, below the clavicle, and another to the right del-toid; because the wound was close to the lung and several arteries, it could have been lethal. Singleton had a wound to the left side of his chest, and another to the scapular area on his back; he had a collapsed lung. Because Dr. Edens had no training in forensic medicine, she would not state which wounds were entrance or exit.

It transpired that five days before the shooting, Singleton had been at the Union Parish Courthouse when he approached Det. Derian Brown, an investigator with the Union Parish Sheriffs Office, and said he “had a friend that he worked with that told him [Singleton] that he was going to shoot his wife and then turn around and kill himself.” Singleton then asked Det. Brown, “Would my friend get in trouble if — by making these kind of threats toward his wife[?]” Det. Brown replied yes, he could get in trouble if she reported it, and asked for the name of the person Singleton was preferring to, but Singleton replied he “did not want to get his friend in trouble,” and then left the building. Det. Brown testified that at the time, he did not realize Singleton might have been talking about himself. Singleton acknowledged talking to Det. Brown, and admitted he “was lying about the friend,” but maintained he had really been talking about his ex-girlfriend.

The state charged Singleton by bill of information with attempted second degree murder and aggravated assault with a firearm; however, the state dismissed the aggravated assault charge and proceeded to trial before a 12-member jury in May 2012. After a three-day trial, the jury returned a verdict of guilty of the lesser included offense of aggravated battery. In July 2012, the court sentenced him to eight years at hard labor, with credit for time served (about 1 % years). He filed a motion to reconsider sentence, which was denied.

Singleton now appeals, raising two assignments of error.

Discussion: Sufficiency of the Evidence

By his first assignment of error, Singleton urges the state failed to present sufficient evidence to support the verdict of guilty of aggravated battery. He concedes that the case hinges on credibility— his version of the shootings versus Sheron-da’s — but contends that her testimony was “so inconsistent and incredible as to warrant review and acquittal” under the Jackson standard, as the courts stated in dictum in State v. Richardson, 425 So.2d 1228 (La.1983), and State v. Lewis, 577 So.2d 799 (La.App. 2 Cir.), writ denied, 582 So.2d 1304 (1991). In support, he shows that there was no evidence of any prior physical violence between him and Sheron-da, 15and no evidence that he was referring to himself when he spoke to Det. Brown at the Union Parish courthouse, thus defeating the proof of motive to harm Sheronda. He also argues that the bullet recovered from the door was traveling in a downward direction, a forensic fact inconsistent with Sheronda’s claim that he shot her while she was standing next to the car; he suggests the more logical finding would be that the gun discharged in the car during a struggle, as he testified. He concludes that the proof of an accident undermines the verdict of aggravated battery.

The standard of appellate review for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.3d 603, State v. Knight, 45,231 (La.App. 2 Cir. 5/19/10), 36 So.3d 1163, unit denied, 2010-1425 (La.1/14/11), 52 So.3d 899. A reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-02131 (La.1/19/06), 921 So.2d 24; State v. Cunningham, 46,664 (La.App. 2 Cir. 11/2/11), 77 So.3d 477. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219; State v. Cunningham, supra.

Aggravated battery is a battery committed with a dangerous weapon, La. R.S. 14:34. As it pertains to this case, battery is the intentional use of force or violence upon the person of another, La. R.S. 14:33. A gun qualifies as a dangerous weapon in that it is an “instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(3); State v. Bonier, 367 So.2d 824 (La.1979); State v. Bowers, 39,970 (La. App. 2 Cir. 8/19/05), 909 So.2d 1038.

The jury obviously received conflicting accounts of the incident and chose to accept Sheronda’s version that she was outside the car, standing next to the passenger door, when Singleton ran around the back of the car and shot her from a vantage point somewhere on the passenger side. On close review, we find no internal inconsistency or conflicts with physical evidence that would warrant rejecting her testimony. Notably, she testified that Singleton fired three shots, and Det. Keel found three rounds missing from the chamber; she also testified that he fired all shots while standing outside the car, and Det. Keel found no evidence that the gun had been fired inside the car. This evidence contradicted Singleton’s testimony that only two shots were fired, both inside the car. His contention that the first shot 17went off accidentally, while they grappled with his hands on the barrel and hers on the handle, and the bullet somehow struck her in the upper chest, was improbable enough for the jury to reject it. His admitted extramarital affair and his odd question to Det. Brown in Union Parish strongly suggest that he was at least contemplating the kind of double shooting that ultimately occurred five days later, and proves the general intent necessary to convict of aggravated battery. In short, this record does not refute the jury’s decision. While we cannot completely reconcile the bullet holes in the armrest (apparently without an entry hole through the outer body of the door), this by itself provides no basis to disturb the jury’s rational credibility call. This assignment of error lacks merit.

Excessive Sentence

By his second assignment of error, Singleton urges the district court imposed an excessive sentence. He concedes that the court “did reference and consider” certain mitigating factors, but argues that it failed to give them adequate weight. In support, he cites the “childhood travesty of his mother murdering his father when he was six months old”; the fact that his one prior felony was 22 years before sentencing, and otherwise he had only misdemeanors; his employment and good work history; and a character reference from the chaplain of the Claiborne Parish Detention Center. He concludes that a less severe sentence would serve the needs of justice.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or |Rmitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819; State v. Linnear, 44,830 (La.App. 2 Cir. 12/9/09), 26 So.3d 303. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So.2d 739 (La.1992); State v. Linnear, supra. No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves, 2003-0518 (La.12/3/03), 861 So.2d 144; State v. Linnear, supra.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Davis, 47,599 (La.App. 2 Cir. 1/16/13), 108 So.3d 833.

At the time of this offense, the penalty for aggravated battery was a fine of not more than $5,000 and imprisonment, with or without hard labor, |9for not more than 10 years, or both. La. R.S. 14:34 B.

The record reveals adequate compliance with Art. 894.1, as the district court expressly referred to the guidelines and recited the factual considerations relevant to the case. The court first noted that this was a crime of violence committed with a firearm, and dismissed Singleton’s claim that he pulled the pistol “just to scare his wife.” Singleton’s criminal history — a 1990 conviction for sexual battery, pled down from simple rape, and a 2003 misdemeanor conviction for disturbing the peace, pled down from simple battery— showed a propensity for violence against women. In mitigation, the court cited Singleton’s “unusual childhood caused by his mother’s murdering his father” when Singleton was six months old, and the fact that Sheronda had no claim for restitution. This shows an adequate consideration of aggravating and mitigating factors.

On the question of constitutional exces-siveness, we find that the atrocious nature of the offense, the scheme and apparent intent to kill Sheronda, and the persistent denial of guilt all serve to support the sentence and negate any claim of dispro-portionality. This assignment lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2).

The conviction and sentence are affirmed.

AFFIRMED.

      . The sister’s name was given at trial but neither side called her to testify.

      . A 2012 amendment increased the penalty in circumstances not present in this case.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Kandace Christina ALLEN, Appellant.
    No. 48,115-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Peggy J. Sullivan, Monroe, LA, for Appellant.
    J. Schuyler Marvin, District Attorney, Andrew C. Jacobs, John M. Lawrence, Robert R. Smith, Assistant District Attorneys, for Appellee.

      Before WILLIAMS, CARAWAY and MOORE, JJ.
   WILLIAMS, J.

hThe defendant, Kandace C. Alen, was charged by bill of information with possession with intent to distribute a Schedule II Controlled Dangerous Substance (methamphetamine), a violation of LSA-R.S. 40:967(A). The defendant pled guilty as charged. In August 2010, the district court sentenced defendant to serve ten years at hard labor, suspended the sentence, placed her on active probation for five years and imposed a fine of $1,000. Defendant did not appeal her sentence. In June 2012, defendant’s probation was revoked for failure to comply with the conditions of her probation; her original sentence was imposed.

On August 13, 2012, defendant filed a motion of intent to appeal on the grounds of excessive sentence. Athough defendant failed to file her motion to appeal within 30 days of the sentencing date, her filing was timely as an application for post-conviction relief since it was filed four days before the statutory two-year deadline for such filings. Because the district court granted defendant’s motion for an appeal, this order is the equivalent of granting post-conviction relief in the form of an out-of-time appeal. For the following reasons, we affirm the defendant’s conviction, amend the sentence to vacate the imposition of jail time in default of payment of the fine and costs and affirm as amended.

FACTS

In February 2010, Bossier City Police Department narcotics officers were contacted by the Monroe Police Department based on information from agents of the Drug Enforcement Agency (DEA) and the Bureau of Acohol, Tobacco, Firearms, and Explosives (ATF) regarding a group of |apeople in Bossier City purchasing a large quantity of methamphetamine from a known drug dealer. The agents told the Bossier officers that the group would consist of two women and two men traveling in a 4-door, red Dodge Dakota pickup truck. A vehicle matching this description was stopped. The occupants of the vehicle were Lon B. Faulk, David R. Williams, Heather D. Morris, and defendant. A subsequent search of the vehicle revealed two bags containing methamphetamine, a loaded syringe with liquid meth and a pill bottle containing 17 Vicodin pills. Defendant and the other occupants were arrested. In April 2010, the defendant entered a plea of guilty to possession with intent to distribute methamphetamine.

Prior to imposing sentence, the trial court reviewed the presentence investigation report. The court noted defendant’s status as a first felony offender and her age as mitigating factors, and stated that she could become “a productive member of society if given the opportunity.” Defendant was sentenced to serve ten years at hard labor, suspended, and placed on supervised probation for five years. In accordance with LSA-C.Cr.P. art. 930.8, defendant was advised of the time limitations associated with filing a motion for an appeal and an application for post-conviction relief. She did not appeal this sentence.

On June 12, 2012, defendant’s probation was revoked. In explaining her noncompliance with her conditions of probation, defendant stated that she met her probation officer twice at her house, but was told that she had to move because she was living with a drug dealer. Defendant stated that she had nowhere else to live and no one to help her, and that her mother was in | ¡¿jail. In admonishing defendant for her noncompliance, the court stated:

That was the whole purpose of the sentence is to get you out of that life and to hopefully have this big ten-year hammer hanging over your head to make you realize your next step was ten years in prison and that’s not enough. So there’s no way that I’m going to release you back on probation. You — you couldn’t even comply with the basic stuff of reporting to your probation officer. So I have no other — you leave me with no other choice except to revoke your probation and order you to serve your original ten-year sentence and you’re to be given credit for time served.

The court then imposed the original sentence of 10 years at hard labor and a fine of $1,000. • This appeal followed.

DISCUSSION

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the sentence is excessive because: (1) she was one of four people riding in a car together and there is no evidence that she was responsible for any intent to distribute or actual distribution of a controlled dangerous substance, or that she was the ringleader; (2) there is no evidence to indicate that she made a financial contribution to the funds invested in the drugs; (3) her status as a first felony offender; (4) her age; and (5) the fact that she had nowhere to live because her mother is in jail.

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,-633 (La.App.2d Cir.11/3/10), 55 So.3d 56. The important elements |4which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id., citing State v. Square, 433 So.2d 104 (La.1983).

The penalty for possession with intent to distribute methamphetamine is imprisonment at hard labor for not less than two years nor more than thirty years. A fine of not more than $50,000 may also be imposed. LSA-R.S. 40:967(B).

Contending that the 10-year sentence is excessive, defendant argues that she should have been given a lesser sentence because of her age, her status as a first felony offender, and the fact that she had nowhere to live because her mother is in jail. In considering the sentencing guidelines of Article 894.1, the trial court noted defendant’s age and first-felony offender status as mitigating factors. However, the court found that any lesser sentence would deprecate the seriousness of the offense. Thus, the court |fiwas cognizant of the Article 894.1 guidelines.

Additionally, the 10-year sentence imposed is at the lower end of the sentencing range for possession with intent to distribute methamphetamine. The court considered the seriousness of the offense and was aware of the defendant’s age and her family situation. Furthermore, despite defendant’s lack of family support, she was granted an opportunity to avoid serving the sentence, but failed to comply with the conditions of probation. Based upon this record, we conclude the trial court did not abuse its discretion in imposing this 10-year sentence, which is not disproportionate to the severity of the offense. Thus, we cannot say the sentence imposed for this defendant is constitutionally excessive. The assignment of error lacks merit.

Error Patent

In reviewing the record for error patent, we note that the trial court sentenced defendant to serve an additional six months in jail for failure to pay the $1,000 fíne and court costs. An indigent defendant may not be subjected to imprisonment because she is unable to pay a fíne, costs, or restitution. Bearden v. Georgia, 461 U.S. 660, 108 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Fortune, 46,522 (La. App.2d Cir.9/21/11), 72 So.3d 1000; State v. Nelson, 44,762 (La.App.2d Cir.10/28/09), 25 So.3d 905; State v. Tillman, 43,569 (La.App.2d Cir.10/22/08), 997 So.2d 144, writ denied, 2008-2836 (La.9/25/09), 18 So.3d 85; State v. Kerrigan, 27,846 (La.App.2d Cir.4/3/96), 671 So.2d 1242.

A defendant’s indigent status may be discerned from the record. Tillman, supra; Kerrigan, supra. Where a defendant is represented by the | (¡Louisiana Appellate Project, the court may conclude that the defendant is indigent. See Fortune, supra; Tillman, supra; Kerrigan, supra.

The record shows that this defendant is indigent, so that she cannot be sentenced to serve jail time because she is unable to pay a fine. Therefore, we vacate that portion of the defendant’s sentence imposing additional jail time for failure to pay the fíne and costs.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is affirmed. We amend the sentence to vacate that portion of the sentence imposing additional jail time in default of payment of the fine and costs. As amended, the defendant’s sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED.


author: LOLLEY, J.

text:
    Johnny Lloyd SMITH, Jr., Plaintiff-Appellant v. Christus SCHUMPERT, Defendant-Appellee.
    No. 48,126-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Johnny Lloyd Smith, Jr., Pro Se.
    Mayer, Smith & Roberts, Shreveport, LA, by John C. Turnage, J. Kris Jackson, for Appellee.
    Before LOLLEY, PITMAN and GARRETT, JJ.
   LOLLEY, J.

11 Johnny Lloyd Smith, Jr., appeals pro se a judgment from the Office of Workers’ Compensation, District 1 West, Caddo Parish, Louisiana. The judgment was in favor of Christus Health Northern d/b/a Christus Schumpert (“Schumpert”) and granted its motion for involuntary dismissal made pursuant to La. C.C.P. art. 1672. For the following reasons, we affirm the trial court’s judgment.

Facts

In August 2009, Smith was employed as an environmental technician with Schum-pert, a healthcare facility in Shreveport, Louisiana. During the same period, Smith also was employed by the Caddo Parish School Board (“Caddo Parish”) as a security coordinator. It is undisputed that Smith injured his right shoulder on-the-job with Schumpert. While working, Smith was emptying the trash when the trash bag became wedged in the trash container. According to Smith, in attempting to free the trash bag, his right shoulder “popped.” Schumpert admits he was paid workers’ compensation indemnity benefits. As to Smith’s medical benefits in connection with his treatment, Schumpert maintains that it has paid all of the bills from Dr. Eddie Anglin, Smith’s treating physician, as well as paying for the pain patches prescribed to Smith by Dr. Anglin.

On February 24, 2010, Smith was advised by his physician that he could return to work on full duty. He had no work restrictions, and he was paid indemnity payments until that time. Smith also continued to work for Caddo Parish during this time. After eight months back at work with Schumpert, Smith was terminated from his job due to excessive tardiness. |2Prior to being terminated, he had received counseling from his supervisor regarding his excessive tardiness.

Smith filed his claim with the Office of Workers’ Compensation (the “OWC”), claiming that he was entitled to medical expenses, disability expenses, supplemental earnings benefits (“SEBs”), and temporary total disability benefits (“TTDs”). At trial, and following the submission of Smith’s case, Schumpert filed a motion for involuntary dismissal, which the OWC granted. This pro se appeal by Smith ensued.

Discussion

Although Smith raises four separate assignments of error, they are all related to the motion for dismissal granted by the OWC in Schumpert’s favor. In essence, he argues that the OWC erred in granting Schumpert’s motion for involuntary dismissal and failing to assess all benefits, medical and indemnity, in his favor. We disagree.

Initially, Schumpert responds by pointing out that Smith failed to brief his assignment of errors, pursuant to Uniform Rules — Court of Appeal, Rule 2-12.4. As argued by Schumpert, where an appellant fails to brief an assignment of error, the appeal court may deem that assignment abandoned. Admittedly, Smith does not completely brief each assignment of error made, but with due consideration to this pro se litigant, we will address the relevant issues.

A workers’ compensation claimant seeking indemnity benefits bears the burden of proving, by clear and convincing evidence, his inability to |sengage in any type of employment. Frye v. Olan Mills, 44,192 (La.App.2d Cir.04/08/09), 7 So.3d 201.

Under La. R.S. 23:1203, medical payments are separate and distinct from compensation indemnity benefits. A workers’ compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. The plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Frye, supra; Taylor v. Wal-Mart Stores, Inc., 40,179 (La.App.2d Cir.09/21/05), 914 So.2d 579, writ not considered, 2006-0144 (La.04/17/06), 926 So.2d 500, cert. denied, 549 U.S. 1157, 127 S.Ct. 982,166 L.Ed.2d 783 (2007).

Louisiana C.C.P. art. 1672(B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

When evaluating a motion for involuntary dismissal, the trial court must consider all the evidence, without any special inferences in favor of the opponent of the motion, and grant the dismissal if the plaintiff has not established proof by a preponderance of the evidence. Barnes v. Barnes, 46,417 (La.App.2d Cir.06/22/11), 71 So.3d 1004. An involuntary | dismissal under La. C.C.P. art. 1672(B) will not be reversed on appeal in the absence of manifest error; there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Atkins v. City of Shreveport, 45,665 (La.App.2d Cir.09/22/10), 48 So.3d 326. The trial court has great discretion in granting an involuntary dismissal. Brooks v. Minnieweather, 46,900 (La.App.2d Cir.01/25/12), 86 So.3d 684, writ denied, 2012-0467 (La.04/13/12), 85 So.3d 1251.

Here, Schumpert argues that Smith had the burden of proof to show entitlement to any sort of benefits, either indemnity or medical, and we agree the record reflects that Smith failed to meet his burden at trial. While unable to work, Smith was paid indemnity benefits. At the point when Smith was released to work by his treating physician, Dr. Anglin, indemnity payments were properly stopped. No doctor said that Smith was unable to work. In fact, Smith was actually working two jobs when he was terminated for excessive tardiness. Thus, Smith failed to show he was entitled to any sort of indemnity benefits, either TTDs or SEBs. As to medical benefits, there was absolutely no evidence that a physician had recommended any treatment not paid for by Schumpert. Smith failed to produce evidence that any additional medical treatment had been ordered by Dr. Anglin or any other physician. Actually, Schumpert continues to pay for Dr. Anglin and Smith’s prescribed medication. Considering that Smith failed to provide any evidence as to his entitlement to either indemnity or medical benefits, the OWC properly granted Schum-pert’s motion for involuntary dismissal. The OWC’s judgment was not in error.

| ^Conclusion

For the foregoing reasons, we affirm the judgment of the Office of Workers’ Compensation granting the motion for involuntary dismissal made by Christus Health Northern d/b/a Christus Schumpert. All costs of this appeal are assessed to Johnny L. Smith.

AFFIRMED.


author: SAUNDERS, Judge. GREMILLION, J.,

text:
    Jonathan GUILLORY, et al. v. PROGRESSIVE INS. CO., et al.
    No. 12-1284.
    Court of Appeal of Louisiana, Third Circuit.
    July 3, 2013.

      Robert Irwin Siegel, Brendan P. Doherty, Gieger, LaBorde & Laperouse, New Orleans, LA, for Defendant/Appellant, American Home Assurance Co.
    David Perry Salley, Salley, Hite, Mercer & Resor, New Orleans, LA, for Defendant/Appellee, Arthur J. Gallagher.
    Richard Elliott Wilson, Cox, Cox & Filo, J. Lee Hoffoss, Jr., Claude P. Devall, Donald W. McKnight, Newman, Hoffoss & De-vall, Lake Charles, LA, for Plaintiff/Appel-lee, Jonathan Guillory.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, BILLY HOWARD EZELL, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

| lAmerican Home Assurance Co. (“American Home”) appeals the judgment in favor of plaintiffs/appellees, Jonathan Guillory (“Guillory”), individually and on behalf of his minor children, Jonathan Guillory, Jr. and Sydnee Guillory, and Dana Guillory (“Mrs. Guillory”), his wife, in the amount of $671,571.00. For the reasons that follow, we affirm in part and reverse in part.

FACTS

Guillory was employed by Cox Communications, Inc. (“Cox”). On November 30, 2005, he was driving a vehicle owned by Cox and insured by American Home, when he was struck from behind by a vehicle driven by Yvette Clark. Because Clark had a minimum-limits policy, Guillory demanded that American Home pay him uninsured motorist (UM) benefits under the policy. American Home argued that Cox, through its authorized agent, Shelia Clinton, had rejected UM coverage by virtue of a waiver form executed on December 31, 2002. The American Home policy was renewed in 2004 and 2005, and with both renewals Cox signed new rejection forms. Both American Home and the Guillorys filed motions for summary judgment on the issue of the validity of the waivers executed by Cox. The trial court granted the Guillorys’ motion, and American Home appealed. We heard American Home’s appeal and reversed the Guillorys’ summary judgment. Guillory v. Progressive Sec. Ins. Co., 09-1056, 09-1508 (La.App. 3 Cir. 10/6/10), 47 So.3d 12, unit denied, 10-2519 (La.12/17/10), 51 So.3d 7, and writ denied, 10-2419 (La.12/17/10), 51 So.3d 11. We found that a genuine issue of material fact existed because, while it was disputed that the policy number was not on the form at the time it was executed, the waiver could ^nonetheless be valid if no policy number was available at the time of execution. See Carter v. State Farm Mut. Auto. Ins. Co., 07-1294 (La.10/5/07), 964 So.2d 375. We found that a genuine issue of material fact existed over whether a policy number was available at the time the waiver was signed. Neither party had submitted evidence on that point to support or oppose their motions.

After our reversal of the Guillorys’ summary judgment, the Guillorys and American Home filed new motions for summary judgment. According to the briefs and court minutes, the trial court found that the 2005 transaction was not a renewal but rather the issuance of a new policy. Accordingly, because the rejection was invalid, UM benefits for the full amount of liability coverage, $2,000,000.00, was provided under the policy. American Home sought writs of review from this court, which denied same on the grounds that it had an adequate remedy on appeal. Guillory v. Progressive Ins. Co., 11-1100 (La.App. 3 Cir. 9/9/11), (unpublished). At the hearing, the trial court found that it could not accept the assertions of the affiant, Ms. Linda Smith, who recalled typing the policy number onto the 2002 waiver. Because Cox submitted an annual review or application to American Home, the trial court found the 2005 renewal to be a new insurance contract requiring a new waiver. Because the 2005 waiver was invalid due to the omission of the policy number, the trial court found that the policy afforded UM benefits equal to the liability limits.

The litigation ran its course and was tried before a jury on September 12-15, 2011. The jury returned a verdict in favor of Jonathan Guillory, individually in the amount of $310,000.00 and on behalf of his minor children in the amount of $40,000.00, against American Home. The demands of Dana Guillory were dismissed with prejudice. Thereafter, on October 3, 2011, the parties entered into a “High-Low Agreement” by which Jonathan Guillory was paid $200,000.00, in [.¡exchange for which he agreed that regardless of the outcome of any post-trial motions he would receive no more than an additional $400,000.00.

Post-trial motions in the form of Motions for Judgment Notwithstanding the Verdict (“JNOV”) were filed by the Guillorys and American Home. The trial court heard that motion on December 6, 2011, and granted the Guillorys’ motion, increasing the award in favor of Jonathan Guillory to $671,571.36, and also awarding Dana Guil-lory $25,000.00 in damages for loss of consortium. American Home’s motion for JNOV was denied. Judgment on the JNOV was signed on January 14, 2012. American Home then perfected its appeal.

ASSIGNMENTS OF ERROR

American Home argues that the trial court erred in finding that the 2002 waiver was invalid, in admitting evidence of past medical expenses that was incompetent and not properly authenticated, and in granting the Guillorys’ motion for JNOV and denying its motion for JNOV. Because of its potentially preclusive effect on the remaining assignments of error, we will address the validity of the waiver first.

ANALYSIS

The trial court granted summary judgment to the Guillorys on the issue of whether American Home’s policy afforded UM benefits. We review grants of summary judgment de novo using the same standards as would the trial court. Vizzi v. Lafayette City-Parish Consol Gov’t, 11-2648 (La.7/2/12), 93 So.3d 1260.

We first note that no judgment granting summary judgment in favor of the Guillorys appears in the record. Rather, we only have the “Judgment on Jury Verdict” dated October 5, 2011. The Code of Civil Procedure, specifically La.Code Civ.P. arts.1911, 2082, and 2083, limit appeals to signed final judgments and interlocutory judgments when allowed by law. However, once we have ¡Jurisdiction over an action, we are mandated to “render any judgment which is just, legal, and proper upon the record on appeal.” La.Code Civ.P. art. 2164. Because the court’s oral rendition affected the presentation of the case to the jury, we will consider the issue. See Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975). Furthermore, because there was no need to argue that a new policy was issued in 2005, the Guillo-rys contend that they should not be penalized now for failing to make that argument then. Parties are not precluded from filing multiple summary judgments under the rule in Clement v. Reeves, 07-1154, 07-1155 (La.App. 3 Cir. 1/30/08), 975 So.2d 170, writ denied, 08-0482 (La.4/18/08), 978 So.2d 355, therefore our previous ruling should not be binding upon them when they failed to argue that a new policy was issued.

The doctrine of law of the case is a discretionary doctrine. Id. In Clement, 975 So.2d at 174, we quoted our colleagues on the second circuit:

Typically, following the “law of the case” doctrine, reargument of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. However, the law of the case principle is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur.... Rogers v. Horseshoe Entm’t, 32,800, p[p]. 5-6 (La.App. 2 Cir. 8/1/00), 766 So.2d 595, 600-01, writ denied, 00-2894, 00-2905 (La.12/8/00), 776 So.2d 463, 464.

Because the Guillorys were not presented with the actual opportunity to make the argument that new policies were issued, we choose to review this matter fully and to not rely on the law of the case doctrine.

As noted above, the Guillorys claim that they did not argue that a new policy was issued in 2005 because they relied on jurisprudence that held that the name of the insured must be included on the rejection form for it to be valid. They also argue that since our decision, they have conducted discovery that convinces them that each year a new policy was issued to Cox. A new policy was issued, the |fiGuiIlorys argue, because each year intensive negotiation occurred between Cox and American Home that involved the preparation and filing of applications for insurance.

Louisiana Revised Statutes 22:1295(l)(a)(ii) (emphasis added) provides, relative to the requirement of executing a new waiver:

Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist forms. For purposes of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

A proper analysis of this matter, then, requires us to answer two questions: Does the completion of an application for insurance create an original contract of insurance, and did the limits of liability coverage change?

Does the completion of an application for insurance create an original contract of insurance?

Louisiana Revised Statutes 22:1295(l)(a)(ii), in relevant part, states “a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.” The statute is clear that an insured can modify a policy without creating a new policy. Such changes might include new coverage, but cannot include changes in the limits of liability. When changes other than liability limits are completed, a new uninsured motorist selection form is not required. In contrast to changes during the term of the contract, a new policy can be created. This is not the same as modifying a contract during its term. A new policy is created when an original contract of insurance is entered into upon completion of an application on the form required by the insurer. Whether a policy has been renewed or whether a policy has been submitted as a new application is a factual question.

| fiIt is incorrect to assert that a new policy can only be created when there is a change in liability limits. Louisiana Revised Statutes 22:1295(l)(a)(ii) is clear that during the term of a policy it can be modified without creating a new policy; however, if the liability limits are changed, this is a way to enter into a new policy which would require a new UM selection form. Another way to enter into a new policy arrangement is further laid out in the statute: through completion of an application on the required form. Furthermore, it is important not to confuse changes during the term of a policy with a renewal of a policy. Louisiana Revised Statutes 22:1266, in relevant part, defines “renewal” or “to renew” as:

[T]he issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term.

A policy can be renewed, and this does not require a new waiver of UM coverage. A policy can also be modified. The modification will not require a new waiver of UM coverage unless the modification is of liability limits. This is because a modification of liability limits creates a new policy. On the other hand, a new application on the required form also creates a new policy, which also requires a new waiver of UM coverage.

American Home argues that a valid uninsured motorist waiver was executed on December 31, 2002. This waiver applied to policy coverage from 2003-2004. Two terms of contract followed the 2002 waiver. Both UM waivers under these terms were found to be invalid. Therefore, American Home argues, Cox renewed the policy executed in 2002 for the 2004-2005 term and the 2005-2006 term (the term when the accident in question occurred). For American Home to win on this renewal argument, it must show that the 2003 policy was renewed in both 2004 |7and 2005 and that 1) no changes to the liability limits were made, or 2) no new application process occurred.

The negotiation process between Cox Enterprises and American Home is distinctive and important to the application of the law. Cox Enterprises, through its broker, procures insurance coverage by submitting “market specifications” to one or more insurers. The insurers then bid on the coverage. This negotiation process is not a mere renewal, it is an application process. Some years, applications are submitted to multiple companies with those companies each submitting bids. Other years, the application may have been only submitted to American Home. Furthermore, there are material differences between the 2003, 2004, and 2005 policies, which support the Guillorys’ argument that the policies of 2003-2004, 2004-2005, and 2005-2006, were separately negotiated policies. Nevertheless, following this negotiation period, new forms were filled out. As stated above, new UM coverage waivers were signed in 2003 and 2004, but these were both found to be invalid.

As regards to the second issue at hand, it is incumbent upon us to decide whether the “market specifications” submitted by Cox is tantamount to an application “on a form provided by the insurer” as required by the statute. Testimony submitted reveals that Cox does not submit applications as individuals do. Cox went through the application process in 2003 and 2004 as though it were purchasing insurance for the first time. The two corporate entities mutually worked to hammer out details between them on what becomes an application prepared by and agreed to by both, which then became the law between the two [8parties. This is the very situation the legislature described when it defined “new policy” in La.R.S. 22:1295(1)(a)(ii).

It thus seems clear that the “market specification” prepared by Cox was also “the completion of an application on the form required by the insurer.” Since it was the only application used by the parties and was used by the insurer to receive a request for insurance and to set rates. Louisiana Revised Statutes 22:1295(l)(a)(ii) supports the trial court’s ruling.

The record reflects that the premiums were negotiated every year between Cox, its insurance broker, and American Home. Cox and its broker shopped for coverage every year and conducted rate and coverage negotiations, including with American Home. Completion of an application for insurance creates a new original contract of insurance.

Did the limits of liability coverage change?

Because we find a new policy was created, a finding of changes in liability coverage is not required for the necessity of a new UM waiver form. Nevertheless, we will discuss liability limits changes. Louisiana Revised Statutes 22:1295(1)(a)(ii), in relevant part, states: “[a]ny changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms.”

In the Guillorys’ motion for partial summary judgment, they maintained that the successive policies were not renewals of the preceding policies. In support of their motion, the Guillorys attached the affidavit of Gary Beck, a claims processor, who attested that he had been employed in the insurance industry for thirty-five years as of 2011, that he reviewed the successive policies and determined that the policies were not renewals “based upon the industry standards and the generally | ^accepted industry terminology.” Beck also attested that his review of the policies indicated that the aggregate liability limit was changed from $2,000,000.00 to $4,000,000.00 when Cox Cable Humboldt, Inc., was added as an insured, and that the liability limit was changed from a flat $2,000,000.00 to $2,000,000.00 less the cost of defending against a claim. Beck also pointed out other changes to the policy, such as a change in the medical payments provisions.

The statute clearly indicates that “[a]ny changes to an existing policy ... except changes in the limits of liability, do not create a new policy.” It seems clear from the facts of the case that we’re dealing with a new policy. Beck attested that his review of the policies indicated that the aggregate liability limit was changed from $2,000,000.00 to $4,000,000.00 when Cox Cable Humboldt, Inc., was added as an insured, and that the liability limit was changed from a flat $2,000,000.00 to $2,000,000.00 less the cost of defending against a claim.

We therefore conclude that the trial court did not err as a matter of law in granting the Guillorys’ motion for summary judgment. The 2004 and 2005 policies were not renewals within the meaning of La.R.S. 22:1295 as 1) a new negotiation was conducted and 2) the policy limits were changed. Accordingly, the UM coverage waiver executed by Cox’s authorized representative in December 2002 was not effective and UM coverage was afforded.

Medical Bills

A next issue before us is whether the medical bills were properly introduced at trial. Guillory sustained a number of injuries as a result of this accident. Prior to trial, counsel for Guillory provided counsel for the defendant with a copy of all medical bills. At trial, counsel for defendant objected to introduction of the bills, arguing they were not properly admissible as they were not properly certified. This objection was denied, and the medical bills were subsequently introduced. |lf)The total medical bill summary sheet reflected $61,571.31. The jury subsequently awarded $50,000.00 in past medical expenses.

The bills were identified by Guillo-ry as bills from doctors he had been to and of treatment he had received. Medical evidence and testimony of the doctors was also admitted. The doctors attested to Guillory’s injuries and as to the treatment they provided. Louisiana Revised Statutes 13:3714(A) (emphasis added) provides:

Whenever ... a copy of a bill for services rendered, ... certified or attested to by the state health care provider or the private health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.

The purpose of the hospital records exception to the hearsay rule is to save a litigant the difficulty and expense of producing as a witness each person who assisted in the treatment of the patient. State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291. The medical bills entered into evidence were attested to by the health care providers. They were then correctly received as pri-ma facie proof of their contents. Counsel for Defendants had the opportunity to examine those witnesses under cross-examination. The medical bills were properly introduced into evidence.

JNOV, Jury Findings

The final issue is whether the granting of the Plaintiffs’ JNOV by the trial court should be affirmed. American Home additionally argues that its JNOV was improperly denied.

A motion for JNOV should be denied if there is evidence opposed to the motion of such quality and weight that reasonable persons in the exercise of | nimpartial judgment might reach different conclusions. Scott v. Hosp. Serv. Dist. No. 1 of St. Charles Parish, 496 So.2d 270 (La.1986). In making this determination, all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829 (La.1991). The rigorous standard for granting a motion for JNOV is based on the principle that “[w]hen there is a jury, the jury is the trier of fact.” Scott, 496 So.2d at 273. A motion for JNOV should be granted only when the evidence points so strongly in favor of the moving party such that reasonable men could not reach different conclusions. Hyatt v. Raggio, 99-887 (La.App. 3 Cir. 2/2/00), 757 So.2d 773, writ denied, 00-1431 (La.6/23/00), 765 So.2d 1050.

The jury had the opportunity to hear evidence as to Guillory’s past injuries and treatment. They analyzed the medical bills and came to the conclusion that $50,000.00 in past medical expenses was an appropriate award. Great deference must be given to the trier of fact’s findings. It cannot be said that the evidence points strongly in favor of the moving party that reasonable men could not reach different conclusions. The jury was reasonable in its determination.

The jury found that Guillory suffered past and future physical pain or mental pain and suffering or loss of enjoyment related to the accident. Given the evidence presented at trial and the record, the jury awarded $10,000.00 in general damages and $50,000.00 in past medical expenses. The trial judge found it was inconsistent that Guillory be awarded future medical expenses, while at the same time being awarded only $10,000.00 in general damages. The jury was likely influenced by Guillory’s testimony that he ran a twenty-six-mile marathon after the accident. Guillory also testified at trial that he lied under oath in a deposition in July of 2011 about running races. He further admitted he concealed his running activities from his own doctors. Guillory attempted to explain his exercise regime with the fact Lgthat he has a “high pain tolerance.” “It is well established that determination of general damages is within the great, even vast, discretion of the trier of fact.” Sciambra v. Jerome Imports, Inc., 05-0260, p. 5 (La.App. 4 Cir. 12/14/05), 921 So.2d 145,149. It cannot be said that the jury was unreasonable in awarding $10,000.00 in general damages to Guillory.

Finally, the jury’s award of $0.00 in loss of consortium to Mrs. Guillory was based on evaluations of witness credibility. The trial judge increased the award to $25,000.00 on the condition “you are going to award this to the kids.” This is clear error. Furthermore, Guillory and Mrs. Guillory were only married for one month at the time of the accident. Testimony showed that Mrs. Guillory was employed in a long-term career at the time of the accident and her career was not interrupted or impacted by her husband’s injuries. The jury was also likely influenced by Guillory’s admitted physical activities and Mrs. Guillory’s admitted involvement in Guillory’s perjury. It cannot be said that the jury was unreasonable in awarding $0.00 in loss of consortium to Mrs. Guillo-ry.

American Home’s JNOV was properly denied and the Guillorys’ JNOV was improperly granted regarding past medical expenses, general damages, and loss of consortium. The trial judge increased the Guillory’s past medical award from the jury’s award of $50,000.00 to $61,571.00 and further increased the jury’s general damages award from $10,000.00 to $300,000.00. The trial judge also increased Mrs. Guillory’s award of loss of consortium from $0.00 to $25,000.00. The JNOV must be reversed in its entirety and the judgment of the jury reinstated.

CONCLUSION

Cox and American Home had a “new policy” as defined under La.R.S. 22:1295(1) (a) (ii) such as to require a new waiver of uninsured motorist coverage. Furthermore, the liability limits were changed, which also necessitated a new | iawaiver of uninsured motorist coverage. Both parties’ motions for JNOV should have been denied as reasonable persons in the exercise of impartial judgment might reach different conclusions. Therefore, the jury awards for Guillory’s past medical expenses, Guillory’s general damages, and Mrs. Guillory’s loss of consortium should be reinstated.

All costs of this appeal are taxed to American Home.

AFFIRMED IN PART; REVERSED IN PART.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, J.,

dissents and assigns written reasons.

hi dissent from the majority’s ruling and would reverse the trial court’s grant of summary judgment.

This court previously determined that the 2002 rejection met the formal requirements of a valid uninsured motorist coverage waiver. Guillory v. Progressive Ins. Co., 09-1056, 09-1508 (La.App. 3 Cir. 10/6/10), 47 So.3d 12, writ denied, 10-2519 (La.12/17/10), 51 So.3d 7, and writ denied, 10-2419 (La.12/17/10), 51 So.3d 11. In that case, we also ruled that there was no change in the policy that required a new waiver. I agree with the court’s assessment at that time.

The Guillories claim that they did not argue that a new policy was issued in 2005 because they relied on jurisprudence that held that the name of the insured must be included on the rejection form for it to be valid. See Gingles v. Dardenne, 08-448 (La.App. 3 Cir. 11/26/08), 998 So.2d 795, rev’d, 08-2995 (La.3/13/09), 4 So.3d 799. They also argue that since our decision, they have conducted discovery that convinces them that each year a new policy was issued to Cox. A new policy was issued, the Guillories argue, because the limits of liability coverage changed and each year intensive negotiation occurred between Cox and ^.American Home that involved the preparation and filing of applications for insurance.

Louisiana Revised Statute ■22:1295(l)(a)(ii) provides, relative to the requirement of executing a new waiver, (emphasis added):

Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist forms. For purposes of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

In footnote 2 of the majority’s opinion, it is stated that the limits of aggregate coverage changed from $2,000,000.00 to $4,000,000.00 during the time between the initial rejection and the accident. That simply is not reflected in the record. The 2003 policy, for which the initial rejection was completed, contained “Endorsement # 012,” which specifically provided (emphasis added):

5. Limit of Liability Any One Occurrence/Aggregate $2,000,000 General Liability Aggregate is twice the occurrence limit

No change in the aggregate liability limit occurred in the years that followed.

Louisiana Revised Statute 22:1295(l)(a)(i) reflects a strong public policy in favor of uninsured motorist coverage. It provides in pertinent part:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state ... unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy ... for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles[.]

[sIf UM coverage had been elected when the provisions regarding the change in the limits of liability to include the cost of defending a suit was added, the policy would not have provided an amount less than the limits of bodily injury liability provided in the policy. Indeed, had UM coverage not been rejected or a lower amount selected, the UM limits would, as a practical matter, have been greater than the liability limits. I would not find that a change in the terms of the policy to deduct the cost of defending a liability claim from the policy’s liability coverage would result in a change in the liability limits that would require execution of a new waiver. The limits of coverage did not change.

The record reflects that the premiums were negotiated every year between Cox, its insurance broker, and American Home. The nominal liability limits did not change between 2003 and the 2005 renewals. It is true that Cox and its broker did shop coverage every year and did conduct rate and coverage negotiations, including with American Home. American Home argues that if the liability limits do not change, the policy is a renewal, and no new waiver or selection of lower limits is required.

But, the Guillories argue, Section 1295 should be read to mean that if an application is submitted, the policy that follows is an original contract of insurance and is thus a new policy for which a waiver or selection is required. Because Cox completed new applications every year, new policies were being issued every year.

If one shops for a new insurance policy and learns that the best deal is the policy one already has, that does not create a new policy under the statute. Only the most strained interpretation of Section 1295 could determine that an “original contract of insurance” results every time an application for coverage is submitted. The issue in this case is whether the 2005 policy was “new” under Section 1295. I |4submit that no “original contract of insurance” was issued because the terms of the coverage provided by American Home never changed, other than the aforementioned deduction from the liability limits of the cost of defense.

I also note that in the context of the dealings between Cox and American Home, the language of the policy provides for renewal. Endorsement IL 02 77 07 02, attached to and part of the 2003 policy, is entitled, “Louisiana Changes — Cancellation and Nonrenewal.” It provides that American Home could only refuse to renew the policy if it delivered to Cox a written notice of its intent sixty days before the expiration date, or its anniversary date if written for more than one year with no fixed expiration date. The only circumstance under which such a notice is not required is if American Home or another company within its insurance group offered to issue a renewal policy, or if Cox had obtained replacement coverage or had agreed in writing to obtain replacement coverage. None of those events took place, for, indeed, American Home issued a renewal policy to Cox.

Because there was no change in the policy limits and no issuance of a new policy, I would reverse the trial court. Thus, I respectfully dissent.

      . The policy number changed every year. The 2003 policy bore number RMCA 534 96 89. The 2004 policy was numbered RMCA 518 86 91, and the 2005 policy was numbered RMCA 204 49 90.

      . The aggregate limit of auto coverage was changed from $2,000,000.00 to $4,000,000.00. The Med pay limits changed. The limits of liability for auto coverage changed from $2,000,000.00 to $2,000,000.00 minus the insured’s cost of defense.