text:
    Shelia JACKSON and Cleve Jackson obo Derrick Jackson, Plaintiffs-Appellants v. Kimberly R. HICKS, Ind., Flip Flop Extreme, L.L.C. d/b/a Brookwood Cheerleader Association and Sport Port Indoor Soccer Facility, L.L.C., Defendants-Appellees.
    No. 49,199-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      S.P. Davis, for Appellants.
    H. Lynwood Lawrence, Jr., for Appellee, Kimberly Hicks.
    Musgrave, McLachlan & Penn, LLC By: Theresa S. Anderson, Lisa Ann McLach-lan, New Orleans, for Appellee, Sport Port Indoor Soccer.
    Before BROWN, WILLIAMS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| plaintiffs, Shelia and Cleve Jackson, filed this personal injury action on behalf of their minor son, Derrick, who was injured at tumbling practice due to a defective gym floor. Both the petition and amended petition were filed beyond the one-year prescriptive period. Plaintiffs claim that prescription was interrupted by acknowledgment. The trial court found that there was no acknowledgment and granted the exceptions of prescription dismissing the case as to all defendants. Plaintiffs have appealed. We affirm.

Facts

On March 5, 2008, Derrick Jackson was at tumbling practice with five or six other children at Sport Port Indoor Soccer Facility (“Sport Port”). During practice, the floor broke underneath him, causing his leg to fall through. As a result, Derrick suffered a displaced distal femoral epiphy-seal fracture of his right femur that required surgery. Plaintiffs claim that the floor was defective and hazardous.

At the time of the incident, Derrick was a member of the Flip Flop Xtreme, LLC Tumbling Team and the Brookwood Cheerleader Association. Kimberly Hicks was an owner, member, coach, and president of Flip Flop Xtreme, LLC. She was also an instructor for the Brookwood Cheerleader Association. Brookwood and Flip Flop Xtreme were responsible for maintaining the floor at the training facility.

A petition for damages was filed two years after the accident on March 5, 2010, by plaintiffs naming Kim Hicks, Flip Flop Extreme d/b/a Brookwood All Stars and Brookwood Cheerleading Association as ^defendants. Plaintiffs filed a supplemental petition on March 5, 2012, naming Sport Port as an additional defendant.

Ms. Hicks and Sport Port filed exceptions of prescription. Following a hearing, the trial court granted the exceptions and dismissed plaintiffs’ action. Plaintiffs filed this appeal.

Discussion

Delictual actions are subject to a liberative prescription of one year. La. C.C. art. 3492. This prescription begins to run one year from the date of the injury. La. C.C. art. 3492. The issue of prescription is raised by a peremptory exception. La. C.C.P. art. 927. The injury herein occurred on March 5, 2008; however, plaintiffs filed suit two years later, on March 5, 2010, against the initial defendants, Flip Flop Extreme, LLC d/b/a Brookwood All Stars, Brookwood Cheer-leading Association, and Kimberly Hicks, and thereafter amended their petition to name Sport Port as a defendant.

The party asserting prescription carries the burden of proof. Mallett v. McNeal, 05-2289 (La.10/17/06), 939 So.2d 1254. However, if the petition shows on its face that the prescriptive period has run, the burden shifts to the plaintiff to prove that the prescriptive period has been suspended or interrupted. Crain v. Pletka, 35,636 (La.App.2d Cir.01/23/02), 806 So.2d 950; Robideau v. Johnson, 30-422 (La.App.2d Cir.08/28/97), 702 So.2d 313.

[¡¡Plaintiffs argue that the lower court erred in failing to find that prescription had been interrupted because they presented adequate evidence . to prove that Ms. Hicks tacitly acknowledged that the accident was her fault.

If a party acknowledges the right of the person against whom the prescriptive period is running, the prescriptive period is interrupted. La. C.C. art. 3464. Thus, prescription may be interrupted either by filing of suit or by acknowledgment. Grelle v. Youngblood, 94-0397 (La.App. 4th Cir.04/14/94), 635 So.2d 1291. However, prescription may only be interrupted while the prescriptive period is accruing; once it has run, interruption can no longer occur. Lima v. Schmidt, 595 So.2d 624 (La.1992); Settoon Marine, Inc. v. Great Lakes Dredge & Dock Co., 95-0046 (La.App. 4th Cir.06/07/95), 657 So.2d 537.

When reviewing a ruling on a peremptory exception, the appellate court must determine if the lower court’s finding of fact was manifestly erroneous or clearly wrong. Crain, supra. If a conflict of testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review regardless of whether the appellate court feels that its own evaluation and inferences are reasonable. If two permissible views of the evidence exists, the trier of fact’s decision cannot be found incorrect. Crain, supra; Foster v. Clarendon, 32,646 (La.App.2d Cir.03/01/00), 753 So.2d 968. The manifest error standard requires that the appellate court grant- great discretion to the trier of fact when determining credibility. Id.

Acknowledgment sufficient to interrupt prescription may be express |4or tacit and takes several forms. It may be made in writing, by partial payment, by payment of interest or pledge. Flowers v. U.S. Fidelity & Guaranty Co. Inc., 381 So.2d 378 (La.1979). In Flowers, supra at 382, the Louisiana Supreme Court quoted Aubry and Rau in interpreting the codal article dealing with acknowledgment, stating:

“The acknowledgment with the interrup-tive effect may be express or tacit. No specific form is prescribed for the express acknowledgment; it may be by regular mail or even orally. Tacit acknowledgment results from any action which amounts to an admission of the creditor’s or owner’s right, for instance the payment of a bill as debtor; payment of the debt, interest or arrears by the debtor or his agent; a request for postponement of a payment; and, a for-tiori, the payment of the amount due by the agent of the debtor. The same would be true of an offer to pay the damages cause by a tort, made by the defendant in the course of the trial, or of an actual act of reparation or indemnity.” 2 Civil Law Translations, Aubry & Rau, Property, § 215, No. 304, p. 344 (1966).

The Louisiana Supreme Court has held that a tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Lima, supra.

From March 2008 until January 2009, Ms. Hicks visited Derrick at his home while he was recovering. During this time she would often take him to Sport Port to watch the other team members practice and compete. Toward the end of 2008, Mrs. Jackson claims to have spoken with an 1 ¿insurance agent in Plano, Texas, regarding the claim. The agent stated that he had spoken to Ms. Hicks. However, in the beginning of 2009, the insurance policy had been cancelled, at which time Mrs. Jackson gave all of the medical bills to Ms. Hicks to submit to the new insurance company. After the running of the one-year prescriptive period, on July 29, 2009, the Jacksons received a check from Ms. Hicks in the amount of $1,750 for “medical co-payments and other insurance.” Derrick continued to receive medical care for his injury until the end of 2011. Ms. Hicks sent an email dated August 3, 2009, forwarding her insurance information to Mrs. Jackson.

At the hearing held on August 12, 2013, plaintiffs and defendants presented conflicting testimony as to whether Ms. Hicks had admitted liability for the accident and verbally committed to Shelia Jackson to pay all of Derrick’s medical expenses. Evidence was presented to the court, including the testimony of Shelia Jackson, Cleve Jackson, Kim Hicks, and a witness, Yonne Walker. Ms. Walker, who was at the hospital on the day of the accident, testified that Ms. Hicks was apologetic and said that she would take care of everything. Plaintiffs claim that Ms. Hicks verbally admitted fault on several occasions and accepted liability for the medical treatment by stating that she would “take care of it.” Additionally, plaintiffs testified that Ms. Hicks requested that they refrain from filing suit against defendants. However, Ms. Hicks testified that she never assumed liability verbally or in any other way for Derrick’s accident, nor did she ask plaintiffs to refrain from filing a lawsuit. Ms. Hicks further testified that her first notice of any | (¡insurance claim for reimbursement of medical bills by plaintiffs was in the summer of 2009.

After hearing the testimony, the lower court made a credibility determination in favor of Ms. Hicks. There was clearly conflicting testimony concerning the statements made by Ms. Hicks before the running of prescription. Regardless of whether the appellate court disagrees with the conclusion of the trial court, jurisprudence requires that the lower court’s evaluations of credibility and reasonable inferences not be disturbed upon review regardless of whether this court feels that its own evaluation and inferences are as reasonable. Foster, supra. Therefore, we affirm the lower court’s ruling determining that plaintiffs failed to present sufficient evidence proving that Ms. Hicks made any verbal acknowledgments sufficient to interrupt prescription during the running of the prescriptive period.

This court has held that acknowledgment of a debt prior to the time that the prescriptive period runs does not toll or otherwise interrupt the running of the prescriptive period unless acknowledgment shows specific intent to interrupt the prescriptive period. Bahr v. Wood, 507 So.2d 4 (La.App. 2d Cir.1987). Plaintiffs have cited several cases, such as Mallett, supra, and Flowers, supra, as examples in which the courts have found that tacit acknowledgment is sufficient to interrupt prescription.

However, these cases are distinguishable from the matter at hand because in those cases, the acknowledgments, which included payments, occurred prior to the dates that prescription had run. In the case sub judice, |7the original prescription date expired on March 5, 2009. The July 29, 2009, check given to Mrs. Jackson by Ms. Hicks occurred approximately four months after the prescriptive period had run. Additionally, the email sent to plaintiffs by Ms. Hicks on August 3, 2009, in response to her notice of the insurance claim was also four months after the original date of prescription. Therefore, unlike the facts in Mallett, supra, and Bahr, supra, Ms. Hicks’ alleged acknowledgment of the debt by payment did not occur prior to the prescriptive date. Subsequently, the dates on the check and the email support Ms. Hicks’ contention that Mrs. Jackson sought reimbursement of out-of-pocket medical expenses after the original prescription date had run.

Lastly, the trial court found that because the original petition had prescribed, the amended petition, which added Sport Port as a defendant, had also prescribed. The amended petition relates back to the date of the original filing. La. C.C.P. art. 1153. The lower court found, and this court agrees, that the original petition filed on March 5, 2010, had prescribed. Therefore, the supplemental petition filed on March 5, 2012, naming Sport Port, LLC as an additional defendant, related back to the untimely original filing date of March 5, 2010. Thus, the amendment is incapable of interrupting prescription because prescription was already exhausted on March 5, 2008.

Conclusion

For the reasons stated above, we affirm the trial court’s judgment sustaining the exceptions of prescription filed by defendants and dismissing plaintiffs’ claims. Costs are assessed against plaintiffs.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    James R. MOORE, Plaintiff-Appellant v. CITY OF MONROE, Louisiana, et al, Defendants-Appellees.
    No. 49,207-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.
    Rehearing Denied Sept. 3, 2014.

      Broussard, Halcomb & Vizzier, Alexandria, by Daniel E. Broussard, Jr., for Appellant.
    Angie D. Baldwin, Nanci S. Summers-gill, Monroe, for Appellee, City of Monroe.
    Before STEWART, CARAWAY and GARRETT, JJ.
   CARAWAY, J.

_JjA retired fire inspector filed suit against the Mayor and City of Monroe, Louisiana (the “City”), and the Louisiana Firefighters’ Retirement System (“FRS”) seeking service credit of 4.85480 (“4.8”) years from his employment with the Monroe Fire Department. Those 4.8 years were not credited by FRS, which now pays the plaintiff retirement benefits for all other years of his public employment. The City filed an exception of prescription seeking dismissal of the claims against it, for declaratory judgment, mandamus and accounting since plaintiff knew of the facts giving rise to the suit some 20 years earlier. The plaintiff argued that it was his retirement, only four months before suit was filed, that triggered the running of prescription in 2002. The trial court found merit to the City’s argument and dismissed all claims of plaintiff with prejudice as to all defendants. This appeal by the firefighter ensued. We affirm in part and reverse in part.

Facts

James R. Moore was first employed by the Monroe Fire Department as a Fireman First Class on November 15, 1965. He resigned from the position on May 27, 1970. Moore was re-employed by the Monroe Fire Department on September 5, 1979, but was laid off on December 31, 1979. During these periods of employment, Moore allegedly paid into the City of Monroe Firemen’s Pension Relief Fund (“MFPRF”). However, the amount of Moore’s alleged pension payments during these years of employment (4 years, 11 months and 10 days) is apparently unknown. ^ Likewise, thejgspecific terms of any retirement agreement between Moore and MFPRF are not established in the record.

From May 27, 1980, to September 15, 1984, Moore worked for the City’s Planning and Urban Development Department contributing as an employee to the Municipal Employees Retirement System (“MERS”). On September 16, 1984, Moore was transferred to the Monroe Fire Department where he began working as a fire inspector until he retired on February 1, 2002. Even after his transfer to the Monroe Fire Department, Moore continued to pay into MERS until January 31, 1996.

By ordinance in October 1980, the Monroe City Council approved the merger of the MFPRF into the State Firefighters’ Retirement System (“FRS”). The merger agreement between the FRS Board of Trustees and the City was executed in early May 1981, but covered only active contributing members of MFPRF. Because at that time Moore was not an active contributing member of MFPRF, he was not included in the merger and continued to pay into MERS.

jn june 1935, Monroe City Council pasged Ordinance No. 7810, which expanded retirement coverage in FRS to “all eligible former employees, retired members and beneficiaries” of the MFPRF. ¶⅛ final merger agreement between FRS Board of Trustees and the City, effective |sJune 1, 1986, nevertheless excluded Moore from the list of 36 named beneficiaries included in the agreement. An appendix to this agreement stated that the source of funds from which the required payment was to be made was City funds.

Evidence contained in the record shows that from 1984-2008, Moore informally and unsuccessfully persisted in his attempts to have the 4.8 years of service credit transferred ultimately to FRS. In December 1981, Moore applied for reciprocal recognition of the 4.8 years in MERS (see exhibit JM-1 attached to Moore’s deposition). Apparently his request was denied. In September of 1984, immediately upon his re-employment with the Monroe Fire Department, Moore sought membership in FRS, which included transfer of his “service credit actually served as a firefighter.” This request was denied because Moore was contributing to MERS and did not qualify for transfer to FRS under recently enacted legislation (see exhibit JM-3 attached to Moore’s deposition). Subsequently, in May 1985, Moore again requested that his 4.8 years be “accepted into the Firefighters’ Retirement System” (see Exhibit JM-5 attached to Moore’s deposition). Moore’s request was denied because he did not fit another statutory requirement of being a line class firefighter.

14Ultimately, Moore did not become eligible to participate in FRS until February 1996 when the statutory requirements for participation were expanded to include any full-time firefighter or “any person in a position in the municipal fire and police civil service system.” In April 1998, FRS board of trustees authorized the City “to purchase” the 4.8 years at $53,627 (See JM-9 attached to Moore’s deposition). Moore also requested FRS to calculate the cost of the service credit for the 4.8 years. The City never acted and Moore concedes that he did not personally pay the money.

Moore retired on February 1, 2002. On July 22, 2002, he instituted this action for declaratory judgment and accounting against the Mayor, the City and FRS, seeking judicial recognition of his entitlement to 4.8 years service credit. Moore also sought an alternative writ of mandamus against the Mayor and City commanding these defendants to enter into an agreement with FRS merging all former eligible former employees including plaintiff into FRS in accordance with Ordinance No 7810.

liiOn May 15, 2013, the City filed a peremptory exception of prescription, arguing that the 3-year prescriptive period applicable to retirement benefits had run based upon Moore’s 20-year knowledge that his 4.8 years were not credited to any retirement system.

Moore did not contest that 3-year prescriptive period, but argued that his right to sue for the credit did not accrue until he became eligible for retirement in 2002. Because his suit was filed 5 months after his retirement date, Moore contended that the suit was timely and would have been premature before his retirement.

FRS did not file an exception of prescription, submitting only a memorandum “relative to co-defendant’s” peremptory exception of prescription, which did not assert prescription regarding Moore’s FRS claim.

At the hearing on the exception on July 31, 2013, only counsel for Moore and the City appeared for argument. Without objection, Moore introduced into evidence the above-referenced documents. The trial court rendered an oral ruling in favor of the City, finding that Moore’s knowledge of the fact that the 4.8 years was not included in his retirement service credit calculations began the prescriptive period more than 3 years before suit was filed.

The trial court’s written judgment on August 14, 2013, provided as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Exception of Prescription filed herein by Defendant, City of Monroe, is granted and all claims of the | f,Plaintiff James R. Moore are dismissed with prejudice as to all defendants, with costs being assessed to Plaintiff.

On appeal, Moore argues that the trial court erred in finding that his claims against the City for additional retirement credit had prescribed. He also argued that the trial court improperly supplied the prescription exception for FRS.

General Retirement Law

Moore fails to direct this court to any applicable statutory or contractual provisions specifically governing his retirement rights with respect to MFPRF during his early employment as a firefighter in the 1960s. Nevertheless, an overview of Louisiana’s retirement provisions will be instructive regarding his retirement claims.

La. Const, art. 10 § 29 expressly provides that membership in any retirement system of the state or of a political subdivision thereof shall be a contractual relationship between employee and employer. The general governing provisions for all state retirement systems provide for reciprocal recognition of credited service in state, parochial and municipal systems and transfer of credit between systems. La. R.S. 11:142; La. R.S. 11:143. Likewise, La. R.S. 11:441.1 specifically addresses issues involving an employee’s termination of his membership in a public retirement system, his receipt of a refund of contributions, and his later use of those refunded contributions in another system for service credit.

Within the varying retirement systems established by Louisiana’s statutory law, retirement is defined as a withdrawal from active service with 17a retirement allowance granted. See, for example, La. R.S. 11:2252(17) included in the Louisiana State Employees’ Retirement System (LASERS). Differing age and service requirements for retirement eligibility are set forth under the different state retirement plans as well. See La. R.S. 11:2256, setting forth age and service requirements for FRS members and La. R.S. 11:441, which provide age and service eligibility requirements for LASERS members. Upon meeting eligibility requirements, an employee’s retirement rights may be said to vest at a time when the member in a retirement system obtains retirement eligibility as to age and service. See, e.g., La. R.S. 11:403(38).

Options for a refund of contributions by employees who leave employment under the various retirement plans are also provided. For example, any FRS member who ceases to be an employee, except by death or retirement, may apply for and obtain a refund of the amount of the accumulated contributions on deposit in his individual account. La. R.S. 11:2256(E). LASERS participants who terminate participation in the plan and employment may, at the participant’s option, receive a lump sum payment or systematic disbursements under La. R.S. 11:450.

Relative to the continuation of the MFPRF is La. R.S. 11:3341, et seq., effective June 25, 1991. Those provisions continue the MFPRF for the pensioning of retired, superannuated, or disabled members of the fire department and alarm system and the widows and orphans of same. The board of trustees of the Monroe Firemen’s Pension and Relief Fund is created as a body politic under La. R.S. 11:3342, which is given exclusive |8control and management of the fund under La. R.S. 11:3343. The MFPRF includes “all monies, funds, properties, real and personal, and assets now belonging to or due the Firemen’s Pension Fund of Monroe, Louisiana,” but excludes “that amount of monies and assets transferred to the Firefighters’ Retirement System agreed upon in the contract signed by officials of the Firefighters’ Retirement System and the officials of the City of Monroe.” La. R.S. 11:3344.

Discussion

The issue presented concerns both the nature of Moore’s claims against the City and the time of commencement for the running of prescription. Moore asserts that the critical event for the commencement of prescription was the time of his first receipt in 2002 of FRS retirement benefits, which did not compensate for his 4.8 years of service.

The prescriptive period applicable to an action is determined by the character of the action disclosed in the pleadings. Fishbein v. State, ex rel. Louisiana State Univ. Health Sciences Ctr., 04-2482 (La.4/12/05), 898 So.2d 1260. Generally the right to seek a declaratory judgment does not itself prescribe. Id. However, the nature of the basic underlying action determines the appropriate prescriptive period because prescription is an issue in terms of a plaintiffs standing to seek the declaratory judgment. Id. The Louisiana Supreme Court has found in a variety of factual contexts that retirement benefits are deferred compensation for services. Fishbein, supra. The court has held that contributions to retirement plans are a form of deferred compensation. Id. The applicable prescriptive period |9for such a claim is found in La. C.C. art. 3494, which provides that an action for recovery of compensation for services is subject to li-berative prescription of 3 years. Id. Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of 10 years. La. C.C. art. 3499. Actions on contracts are normally regulated by 10-year prescription. Schoen v. Walling, 31,598 (La.App.2d Cir.2/24/99), 728 So.2d 982.

Prescription commences to run from the day payment is exigible. It accrues as to past due payments even if there is a continuation of labor, supplies, or other services. La. C.C. art. 3495.

Mandamus, codified in La. C.C.P. art. 3861 et seq., is an extraordinary remedy, to be applied where ordinary means fail to afford adequate relief. The only circumstance under which courts may cause a writ of mandamus to issue is where the actions sought to be performed by the legislature are purely ministerial in nature. Hoag v. State, 04-0857 (La.12/1/04), 889 So.2d 1019. A ministerial duty, the performance of which may be required of the head of a department by judicial process, is one in which nothing is left to discretion. Hoag, supra; Felix v. St Paul Fire and Marine Ins. Co., 477 So.2d 676 (La.1985). A ministerial duty is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law. Hoag, supra. If a public officer is vested with any element of discretion, mandamus will not lie. Id.

|TnIt has been held that mandamus is unavailable when injunctive or declaratory relief is also sought. Wiginton v. Tangipahoa Parish Council, 00-1319 (La.App.lst Cir.6/29/01), 790 So,2d 160, writ denied, 01-2541 (La.12/7/01), 803 So.2d 971. Likewise, it has been determined that it is the underlying action that determines the appropriate prescriptive period for mandamus. Id.

Moore has not provided this court with the agreement or plan that governed any contributions made by him for his retirement during the 4.8 years. It is therefore unclear whether the City had obligations under the retirement plan or whether MFPRF is the responsible party. One of the documents filed into evidence by Moore for the hearing on prescription indicated (as a hearsay document) that during the time of his 4.8 years of employment Moore would have been required to work 20 years as a member of the MFPRF retirement system to be eligible for retirement benefits. Because Moore has not established the retirement agreement governing his retirement eligibility for the 4.8 years, we can find only that he may have been entitled to refunds of his contributions to the MFPRF system when he left employment, first in 1970 and later in 1979. Moreover, we find that only MFPRF, MERS, and FRS were the state or municipal retirement systems in which Moore earned.his service credits. Because of the mergers and other changes involving those systems, the FRS is the retirement system from which any retirement benefits for Moore’s 4.8 years might be paid.

The City, therefore, has not been shown to be the party responsible for the payment of retirement benefits to Moore, and at best, may have owed |uhim only a refund for his retirement contributions made during the 4.8 years. The possible entitlement of a refund from the City would be a personal action in contract for which the prescription of 10 years applies.

The record also demonstrates to us that Moore had knowledge of the dispute surrounding the retirement credit for the 4.8 years well in excess of 10 years before this suit was filed. Documentation submitted jointly by the parties at the hearing on the prescription exception shows that in 1981, 1984 and 1985, Moore sought recognition of the 4.8 years in both MERS and FRS.

With this finding, we also reject Moore’s claim for mandamus. Since Moore never demonstrated that he ever met the eligibility requirements to be vested in MFPRF, we do not find any ministerial duty owed by the City and Mayor.

Finally, we do agree with Moore’s argument that FRS was improperly included in the judgment causing the dismissal of Moore’s separate claims against FRS. We find his cause of action against FRS different from his vague assertions against the City. Most importantly, the trial court cannot supply the defense of prescription for FRS, which never urged the peremptory exception. 927(B). La. C.C.P. art.

Conclusion

For the foregoing reasons, we affirm that portion of the judgment of the trial court dismissing Moore’s claims against the City and Mayor of Monroe. We reverse that portion of the judgment which dismissed Moore’s claims against FRS and remand for further proceedings. Costs of this | ^appeal in the amount of $148.00 are assessed equally to Moore and FRS.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, PITMAN and GARRETT, JJ.

Rehearing denied.

PITMAN, J., would not consider.

      . This service time, later credited to his subsequent fire service, is not a part of this litigation.

      . It is apparently Moore's contention, however, that the funds he contributed to the MFPRF were used to fund the merger. In its answer, FRS argues that Moore was classified as an inactive employee, who had service credit in the MFPRF, but was no longer participating in the plan. FRS contends that although Moore had previous employment stints, the amount of his credit was not enough to vest him in FRS. FRS contends that all such employees were excluded from the merger and that any assets that were attributable to Moore remained in the MFPRF.

      .For purposes of the extended agreement, "beneficiary” included any person receiving a regular retirement benefit, disability retirement benefit, or survivor benefit and person eligible to receive surviving spouse benefits in the future upon the death of a regular retiree or disability retiree who is covered under the terms of the agreement. In his petition, Moore concedes that he was not included in the merger.

      .Other documents entered into evidence included Moore’s deposition, 1995 correspondence between City Attorneys and FRS General Counsel in which the City states its willingness to "underwrite the cost of including Mr. Moore’s previous time [4.8 years]” into FRS and 1'996 correspondence between the Monroe Fire Chief and FRS indicating the City's willingness to include Moore into the merger. Also entered into evidence were 1997,- 1998 and 1999 correspondence between FRS and its actuary detailing the cost of Moore’s service credit at that time. Other documents included a 1999 memo by a Monroe Assistant City Attorney concluding that it was Moore’s responsibility to pay the actuarial cost of the service credit with no statutory obligation existing for the City to do so with public funds, 2000 correspondence from Moore to the Monroe Mayor and a private attorney to an assistant City Attorney regarding the liability of the City to pay for the transfer of the service credit, 2001 correspondence between Moore’s present counsel and FRS, 2002 correspondence from Moore’s present counsel to the Mayor of Monroe, and a 2007 actuarial calculation for the 4.8 years sent to the City Attorney's office in 2008.

      . Evidence shows that Moore first requested transfer of service calculations in May of 1997. He again requested a recalculation of that amount in May of 1999.

      . Moore contends that it was his belief that the City had agreed to pay this amount on his behalf.

      . FRS filed a cross-claim against the Mayor and City and unsuccessfully urged peremptory and declinatory exceptions of no cause of action and improper venue, which the court denied on May 27, 2003. Additionally, on August 16, 2006, the suit was dismissed as having been abandoned. Moore successfully had the judgment reversed on April 7, 2007, based upon executive orders relating to Hurricane Katrina, which suspended all deadlines and legal proceedings from August 29 through November 25, 2005.

      . Both at oral argument and in his deposition, Moore claims no entitlement to reimbursement of the funds he contributed into MFPRF.

      . FRS has not participated in the appeal of the judgment.


author: PITMAN, J.

text:
    Lynn MORGAN, Plaintiff, Second Appellant v. GLAZERS WHOLESALE DRUG CO. & Travelers Property Casualty Co., Defendants-First Appellants.
    No. 49,209-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Robert A. Dunk-elman, Shreveport, Jessica L. Thornhill, for Glazers Wholesale Drug Co. & Travelers Property Casualty.
    Robert M. Hanna, for Lynn Morgan.
    Before WILLIAMS, STEWART & PITMAN, JJ.
   PITMAN, J.

| Claimant Lynn Morgan appeals the judgment of the Workers’ Compensation Judge (‘WCJ”) which denied his demands against his employer, Glazers Wholesale Drug Company (“Glazers”), for psychiatric treatment and workers’ compensation indemnity benefits on the basis that he failed to prove the treatment was medically necessary or that indemnity benefits were owed. For the following reasons, we affirm.

FACTS

In July 2002, Claimant injured his lower back while working for Glazers. He began receiving temporary total disability (“TTD”) benefits as a result of the accident and subsequently underwent a microdis-cectomy surgery of one disc in his lumbar spine in 2003. He received benefits for more than 520 weeks.

Claimant continued to experience pain in the years following his back surgery, suffered from depression and, in 2005, began seeing Dr. Kathleen Majors, a pain management specialist, who prescribed pain medication for him. Claimant subsequently admitted to once abusing his pain medication. In 2008, Dr. Majors referred him to Dr. R. Kent Dean, a psychologist whose specialty is addiction medicine. Dr. Dean performed a psychological evaluation and reported that Claimant “does acknowledge a personal history of depression.” Dr. Dean also stated, “Affect is anxious and mood is only mildly depressed, but it is appropriate to the thought content of the need for this assessment.”

| {.Claimant also saw psychiatrists at LSUHSC from 2008 through 2010 until the last treating physician left the facility. These visits to the psychiatric outpatient clinic at LSUHSC are documented by reports found in Claimant’s medical record.

During the time of his psychiatric treatment at LSUHSC, Claimant was taking the antidepressant Effexor. In 2011, after taking Effexor for ten months, Claimant suffered a seizure and was taken off that medication. Since no new psychiatrist had been assigned to Claimant after the first one left LSUHSC, Dr. Majors continued to treat him for his pain and depression. Claimant was not prescribed antidepressants for approximately a year and seemed to experience no change in his psyche. Eventually, he complained to Dr. Majors that he was depressed, at which time she prescribed Cymbalta for him. She did not believe Claimant was suicidal and, in fact, believed he was seeing positive results from the Cymbalta regimen.

At the request of Glazers, Claimant was examined by Dr. Randall Brewer, a pain management physician. In addition to physical symptoms, Dr. Brewer’s notes indicated that Claimant suffered from sleep disruption, depression and anxiety. Dr. Brewer recommended that Claimant undergo individual and group psychotherapy to optimize coping strategies, illness behavior, disability role status and supportive psychotherapy.

THE FIRST CLAIM

Approximately seven years post accident, Claimant filed an initial disputed claim for compensation, contending that his injuries were so severe |ahe was permanently and totally disabled. Glazers opposed the claim, conceding that Claimant’s injuries were permanent, but denying that they produced total disability. After trial, the WCJ found that Claimant had failed to prove that his injuries entitled him to permanent total disability benefits. The WCJ dismissed his claim since the overwhelming evidence revealed that chronic pain, not total disability, was the reason he could not work. The judgment, in which the WCJ declined to rule on the issue of Claimant’s entitlement to supplemental earnings benefits (“SEBs”), was appealed to, and affirmed by, this court. See Morgan v. Glazers Wholesale Drug Co., 46,692 (La.App.2d Cir.11/2/11), 79 So.3d 417.

In that appeal, Claimant contested the WCJ’s ruling finding he was unable to work solely because of his chronic pain, without considering the effects of his accident-related mental injury, as manifestly erroneous and clearly wrong. In affirming the judgment of the WCJ, this court noted that Claimant had failed to argue the alleged mental injury to the WCJ as a basis, for permanent disability. Despite this fact, the court discussed the relevant evidence found in the record concerning his depression secondary to his chronic pain, which included the records from the Psychiatry Outpatient Clinic at LSUHSC.

After discussing the law concerning mental injury sustained by employees, and the evidence in the record regarding this claimant, this court stated as follows:

There is no dispute, and the WCJ acknowledged, that Mr. Morgan suffers from depression to some degree stemming from his injury and resulting disability. The record, however, contains no evidence that depression is the cause of |4Mr. Morgan’s alleged inability to reenter the work force. Indeed, Mr. Morgan’s above-quoted testimony placed the cause of his alleged inability to work on his pain. Neither of the vocational evaluations cited a mental injury or condition as a basis for concluding that Mr. Morgan was unable to find employment. Finally, Mr. Morgan presented no medical opinion that a mental injury was causing his alleged inability to work. Furthermore, there was no evidence presented that Mr. Morgan’s diagnosis meets the criteria of the American Psychiatric Association. Morgan v. Glazers Wholesale Drug Company, 79 So.3d at 424.

This court concluded that Claimant was not entitled to permanent and total disability benefits.

THE SECOND AND CURRENT CLAIM

After the above appeal opinion was rendered, Claimant and his attorney approached Dr. Majors and requested that she recommend psychiatric treatment for his depression. In her follow-up with Claimant, she determined that he was not suicidal and that his agreed-to trial of Cymbalta had given him some beneficial results. Dr. Majors declined to order the psychiatric treatment on the basis that she did not believe it was medically necessary.

Despite this fact, in 2012, Claimant filed a second disputed claim for compensation seeking to compel Glazers to approve and pay for his choice of physician in the field of psychiatry and for the continued payment of TTD benefits during any period in which he was disabled as a result of his psychiatric condition. He claimed his psychiatric condition and depression resulted from his pain and his disability from his failed back surgery. He also sought penalties and attorney fees for the insurer’s failure to approve | Bhis choice of physician and/or for the arbitrary and capricious discontinuation of reasonable and necessary medical treatment.

Claimant filed a motion to compel the approval of his choice of physician and requested an expedited hearing. He requested that Glazers be ordered to show cause why it should not be compelled to authorize and pay for the examination and any reasonable and necessary treatment by Dr. Kyle Runnels, a psychiatrist, and why it should not be ordered to pay penalties and attorney fees. Alternatively, Claimant prayed that his right to bring a claim for statutory penalties and attorney fees be reserved to him.

The request for expedited hearing was granted. At the hearing, Claimant introduced the same evidence regarding his alleged mental injury as he had at his previous trial, including the depositions of Drs. Majors and Brewer ánd the notes from the LSUHSC Psychiatric Outpatient Center. He also introduced a newer deposition of Dr. Majors taken in September 2012, in which she testified that she treats her patients for depression with one antidepressant; and, if the patient requires a combination therapy, she usually refers him to a psychiatrist. When asked specifically about Claimant’s depression, she testified that it had “waxed and waned” over the years she treated him. She further testified that, after Claimant discontinued the Effexor, he went without an antidepressant for some time. When he requested a referral to a psychiatrist, she determined that it was not necessary at that time and wrote a note stating, ‘We’re going to trial antidepressant. I think this is reasonable. He’s not suicidal, nor has he had suicidal ideation.” She further noted that, if the depression became more | (¡severe, she would refer him to a psychiatrist. Dr. Majors stated that Claimant’s depression was work-related and that she had affirmed that opinion with an insurance adjuster, but she also believed that Claimant did not need psychiatric treatment at that time. She stated that she had increased Claimant’s Cymbalta and that it appeared to be helping him. Although she believed it “would be great” if he could be followed by a psychiatrist, she opined, “He seems to be stable now.”

The WCJ rendered judgment in favor of Glazers and against Claimant not only denying his demand for psychiatric treatment based on his failure to prove that such treatment was medically necessary as required by La. R.S. 23:1203, but also denying his demand for workers’ compensation indemnity benefits including, but not limited to, TTD benefits and SEBs. Further, his demand for penalties and attorney fees was denied.

In regard to Claimant’s request for TTD benefits, the WCJ noted that, although mental injury is a compensable injury under some circumstances found in the Louisiana Workers’ Compensation Act (“LWCA”), this particular claimant offered nothing new to show that he was in need of psychiatric treatment and could not prove a compensable mental injury under La. R.S. 23:1021(8). Both parties filed motions for new trial, which were denied by the WCJ, a judgment appealed by both Claimant and Glazers.

DISCUSSION

Claimant contends that the WCJ erred in denying him the right to treatment by a psychiatrist, as well as in denying him any benefits for his 17alleged mental injury. Claimant argues that the WCJ’s judgment was based on legal error, was prejudicial to his case and was manifestly erroneous and clearly wrong in that it was based on improper weight afforded to the testimony of the treating physician vis a vis the testimony of the other medical witnesses and medical records in evidence. He also asserts that the judgment and ruling sharply depart from the jurisprudential rules requiring the liberal construction óf the provisions of the workers’ compensation statute in favor of the injured employee.

Claimant further argues that the WCJ’s decision on the issue of the nature and extent of his disability, until the requested psychiatric evaluations have been completed, is legal error which was prejudicial to his case. He states that it is undisputed that he suffers from depression, and has suffered from depression, for the years since his back injury. His depression is being treated by his pain management physician, not a psychiatrist. He contends that, until he is granted the evaluation and treatment by a psychiatrist, he is unable to prove his entitlement to indemnity benefits related to his mental injury and depression. For these reasons, he asserts that the denial of benefits was premature until he is afforded the opportunity to seek consultation and examination with a psychiatrist.

In answer to Claimant’s appeal, Glazer argues that Claimant has now had two opportunities to raise and prove his claim of a compensable mental injury under the LWCA, but that he has failed both times to convince the WCJ that he is entitled to the relief he seeks. Glazer points out that Claimant has already been evaluated by his own choice of psychiatrists at IsLSUHSC for whatever mental injury he sustained as a result of his on-the-job accident or as to any other psychiatric condition, but failed to introduce anything other than medical records with regard to this psychiatric treatment. Glazers also argues that Claimant could have consulted with a psychiatrist of his own choosing and at his own cost in an effort to prove medical necessity for the treatment he sought, but he failed to introduce such evidence at the trial on the merits. For those reasons, Glazers contends that the WCJ correctly found that Claimant had offered insufficient proof to establish the totality of his disability and the medical necessity for psychiatric treatment.

In its appeal, Glazers argues that the WCJ never addressed the issue of whether Claimant satisfied his burden proving his mental injuries are compensable under the LWCA. Although the WCJ determined that Claimant had not proved that psychiatric treatment was medically necessary, Glazers argues that the silence in the judgment regarding compensability creates an issue as to whether the judgment is, in effect, a denial of the compensability. It states that it is only seeking a clarification of the judgment because whether the injury is compensable should have been the first prong of inquiry.

The relevant provision regarding temporary total disability is found in La. R.S. 28:1221(1), which states, in pertinent part:

(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, [straining, or experience, sixty-six and two-thirds percent of wages during the period of such disability.
(b) For purposes of Subparagraph (l)(a) of this Paragraph, compensation for temporary disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
(c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

A claimant seeking temporary total disability benefits under the LWCA bears the burden of proving by clear and convincing evidence that his injury prevents him from engaging in any employment. Harvey v. B E & K Const., 30,825 (La.App.2d Cir.8/19/98), 716 So.2d 514.

La. R.S. 23:1203 obligates employers to furnish “all necessary ... medical and surgical treatment” to an employee injured in a compensable accident. It is incumbent upon the employee seeking medical benefits to prove that the treatment sought is “reasonably necessary for treatment of a medical condition caused by a work-related injury.” Pardee v. Forest Haven Nursing Home, 42,321 (La.App.2d Cir.6/20/07), 960 So.2d 1216.

La. R.S. 23:1021 defines injury and mental injury for purposes of the LWCA and states as follows:

|1ft(8)(a) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

Thus, the law establishes that mental injury caused by physical injury can be established by clear and convincing evidence as long as the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the Diagnostic and Statistical Manual of Mental Disorders.

Where a mental injury or illness develops secondary to a physical injury sustained in a work-related accident, an employee is entitled to compensation benefits for any disability resulting from the mental injury and to reimbursement for mental treatment medical expenses. Weeks v. Angelo Iafrate Const. Co., 37,255 (La.App.2d Cir.6/25/03), 850 So.2d 966. In Weeks, this court found that the WCJ did not abuse his discretion by denying the claimant’s request for an employer-paid psychological evaluation. The claimant offered no psychiatric testimony to substantiate Inhis claim of mental injury, and only physicians in other specialties suggested further psychiatric or psychological testing as a possible treatment.

La. R.S. 23:1121 concerns the appointment of a treating physician and states, in pertinent part, as follows:

B. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8), when denied his right to an initial physician of choice.... After his initial' choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.
D. After all examinations have been conducted but prior to any order directing the injured employee to return to work, the employee shall be permitted, at his own expense, to consult with and be examined by a physician of his own choosing. Such report shall be considered in addition to all other medical reports in determining the injured employee’s fitness to return to work. Should disagreement exist, after such consultation and examination, as to the fitness of the employee to return to work, the provisions of R.S. 28:1123 shall be followed.

Under the LWCA, the provision that the employee has a right to select a physician in any field or specialty must be read in conjunction with the provision requiring that the treatment sought be medically necessary in order for the employer to be responsible for the expenses. La. R.S. 23:1121(B), 23:1203(A). Captain v. Citgo Petroleum Corp., 06-481 (La.App.3d Cir.9/27/06), 940 So.2d 731. See also, Brantley v. Delta Ridge Implement, Inc., 41,190 (La.App.2d Cir.6/28/06), 935 So.2d 308, in which this court found a claimant had failed to prove medical necessity for a [ ^change in physician to a different field or specialty when three treating physicians reported surgical intervention was not necessary.

In a workers’ compensation case, the appellate court’s review is governed by the manifest error or clearly wrong standard. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Unless shown to be clearly wrong, the trial court’s factual findings of work-related disability will not be disturbed where there is evidence which, upon the trier of fact’s reasonable evaluation of credibility, furnishes a reasonable, factual basis for those findings. Morgan, supra.

Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. In a workers’ compensation case, the general rule is that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice; however, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. The claimant bears the burden of demonstrating by a preponderance of the evidence that an employment accident resulted in disability. Kendrick v. Solo Cup, 44,303 (La.App.2d Cir.6/3/09), 15 So.3d 295.

After a review of the testimony and documentary evidence in the case sub ju-dice, we find no abuse of discretion in the WCJ’s conclusion that Claimant failed to prove the medical necessity of the psychiatric treatment | ishe requested as required by La. R.S. 23:1203. The deposition testimony of his treating physician, Dr. Majors, indicated she did not believe that psychiatric treatment for Claimant was necessary at the time she was deposed. She stated that the trial of Cymbalta appeared to be helping Claimant and that she would refer him to a psychiatrist if it became necessary in the future.

Further, we find no manifest error in the WCJ’s conclusion that Claimant failed to prove by clear and convincing evidence that he is entitled to TTD benefits. While there was evidence presented that Claimant was depressed, the law requires that, to be compensable, the mental injury or illness must be diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition must meet the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association. The only evidence Claimant introduced with regard to any psychiatric treatment he had already received was documentary evidence from the LSUHSC Psychiatric Outpatient Clinic. He presented no evidence meeting the requirements for compensation under La. R.S. 28:1021.

We, therefore, find these arguments to be without merit.

Glazers has argued that the WCJ erred in failing to rule on whether Claimant suffered a compensable mental injury and, instead, simply ruled that the psychiatric evaluation sought by Claimant was not medically necessary. Generally, when a trial court judgment is silent as to a claim or demand, it is presumed the relief sought was denied. M.J. Farms, Ltd. v. 1 uExxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16. Appellate courts review judgments, not reasons for judgment. See Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507, citing Bellard v. American Cent. Ins. Co., 07-1335 (La.4/18/08), 980 So.2d 654; Greater New Orleans Expressway Comm. v. Olivier, 02-2795 (La.11/18/03), 860 So.2d 22, and La. C.C.P. arts.1918, 2082 and 2083. The reasons for judgment are merely an explication of the trial court’s determinations. They do not alter, amend or affect the final judgment being appealed. Wooley, supra, citing State in the Interest of Mason, 356 So.2d 530 (La.App. 1st Cir.1977).

In this case, the WCJ denied Claimant all the relief he sought, i.e., psychiatric evaluation and treatment, as well as TTD benefits. Therefore, the WCJ’s judgment against him, and in favor of Glazers, determined he had not proven that he suffered a compensable mental injury. Glazers’ request that this court somehow review, address or change the WCJ’s reasons for denying Claimant’s relief is without merit. That is not the function of this court.

CONCLUSION

Based on the foregoing, the judgment of the WCJ denying the psychiatric evaluation and treatment of Lynn Morgan and denying him temporary total disability benefits is affirmed. Further, we find no error in the ruling of the WCJ as alleged by Glazers Wholesale Drug Company, and the judgment is affirmed in its entirety. Costs of this appeal are assessed equally to Lynn Morgan and Glazers Wholesale Drug Company.

AFFIRMED.

      . In the reasons for judgment, the WCJ considered Dr. Dean’s evaluation and referred to it as a psychiatric evaluation at LSU Health Sciences Center ("LSUHSC”); however, Claimant points out that Dr. Dean is a psychologist, not a psychiatrist, and argues that he focused on the question presented to him by Dr. Majors regarding his violation of the narcotics contract. Claimant argues that he only saw Dr. Dean one time and contends that he was receiving psychiatric treatment at LSUHSC at the time of Dr. Dean’s evaluation in 2008.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Chance Lain OLIVER, Appellant.
    No. 49,212-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, Geary Stephen Aycock, Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   DREW, J.

| T Chance L. Oliver entered a “best interest” plea of guilty of aggravated incest. He now appeals his sentence of 15 years at hard labor, five years of which were suspended, subject to five years of probation. We affirm.

FACTS

On July 26, 2012, officers of the Ouachi-ta Parish Sheriffs Office responded to Glenwood Hospital, where Gayla Adkins reported that her daughter, S.A.A., age 15, had been raped by the child’s stepfather, Chance L. Oliver. The day before, Adkins had dropped off S.A.A. to visit with her stepbrother, J.O., age 18.

After J.O. fell asleep, the defendant called S.A.A. into his room and locked the door. He gave her eight Xanax bars, half a Lortab, and a morphine pill. He made her drink three Screwdrivers (orange juice and vodka), then forced her to have sexual intercourse with him. S.A.A. could not recall many facts because of her intoxication. A rape examination confirmed recent sexual intercourse.

On the next day, July 27, 2012, the defendant was located at the Ouachita Correctional Center, where he was detained on an unrelated charge of domestic abuse battery. He admitted that S.A.A. and J.O. were at his house on the date in question, and that he had been drinking. He denied ^raping S.A.A., but said that she enticed him and got in bed with him, at which point he fell asleep.

Investigators spoke with the defendant’s ex-boss, Paul Wilkerson, at Interstate Dodge, who advised that the defendant had told him, “I f* * * *d up, I f* * * *d that little girl last night.” DNA evidence implicated the defendant.

The trial court explained the defendant’s constitutional rights per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The defendant stated that he understood and wished to waive his rights and enter a plea of guilty, pursuant to Alford, supra.

A presentence investigation report (“PSI”) was ordered.

At the sentencing hearing, the defendant provided the trial court with:

• letters and reports from doctors, therapists and CASA regarding J.O.;

• certificates of the defendant’s completion of self-improvement courses; and

• letters to the court from himself, his son, his family and friends.

At the hearing, Gayla Adkins stated that:

• S.A.A. will never be the same;

• her daughter has not been able to return to school;

• she dresses in layers of clothing and refuses to wear makeup because she does not want people to see her or think she is pretty;

• S.A.A. loved the defendant as a father figure and stood up for him when anyone spoke negative of him; and

• on behalf of S.A.A., she requested imposition of the maximum sentence.

S.A.A.’s paternal grandmother, Mary Rawlinson, stated that S.A.A. |shad to be home-schooled because she refused to attend school. She testified that S.A.A. trusted the defendant because he had been a part of her life since she was nine years old, and that it was sickening that he would do this to her.

William McDonald, S.A.A.’s maternal grandfather, described the defendant as a manipulator who had ruined S.A.A.’s life. He begged the court to get him off the streets so that he could not harm others.

J.O. testified as to his wonderful relationship with and love for his father. He was worried about what would happen to him if his father went to prison. He did not know who would rear him in this event.

The trial court:

• reviewed the presentence investigation report;

• recited a detailed account of the facts of this case;

• summarized the letters and reports it had received;

• noted correspondence from J.O., alleging that it was he and not his father who had sex with S.A.A.;

• reviewed the defendant’s personal and social history;

[,• found that the defendant is not the worst of this type of offender;

• reviewed the sentencing guidelines set forth in La. C. Cr. P. art. 894.1;

• noted that the defendant’s conduct caused the victim extreme trauma;

• commented that the victim is still distraught and has difficulty coping;

• stated that the defendant had to know the harm he would cause;

• said that the defendant inexcusably gave the victim drugs and alcohol;

• remarked that the defendant had shown no remorse for his conduct;

• found that this was a crime of opportunity; and

• concluded that the charge reduction greatly benefited the defendant.

The trial court ordered the defendant not to contact the victim and to pay the costs of her psychological counseling under La. R.S. 46:2136.1. The court further advised the defendant as to the sex offender registration requirements. No fine was imposed.

Both the defendant, pro se, and his attorney, filed motions to reconsider sentence, arguing that the sentence was unduly harsh and ^excessive under the facts and circumstances of this case, and that the trial court failed to adequately consider some mitigating factors. The motions were denied without a hearing.

The defendant claimed that his attorney misguided him.

DISCUSSION

The defendant contended that:

• this sentence is excessive given the nature of this case;

• the trial court should have given more weight to mitigating factors;

• the court should have favorably considered his willingness to plead guilty, thereby sparing the victim and her family the pain of a trial;

• he has had a sad and unfortunate life;

• he has earned a GED and is a good employee;

• he has severe ADHD;

• his minimal criminal history reflects no prior claims of sexual abuse;

• he has substance abuse problems; and

• this sentence entails an undue hardship on him and his son, J.O.

In response, the state argued that:

• the trial court fully considered the factors in La. C. Cr. P. art. 894.1;

k* the defendant violated his stepdaughter by drugging and raping her;

• the adverse impact on the victim’s life is horrendous;

• the defendant greatly benefited from the plea agreement, reducing his potential sentencing exposure from 70 years to 20 years; and

• though the trial court found that this defendant was not the worst of offenders, it did describe his actions as a “crime of opportunity.”

La. R.S. 14:78.1(D)(1) provides that the sentence for aggravated incest is a fíne of not more than $50,000.00, or imprisonment, -with or without hard labor, for not less than five years nor more than 20 years, or both.

Our law on appellate review of sentences is well settled.

This mid-to-high range sentence is absolutely appropriate. The trial 17court reviewed all facts before it in light of La. C. Cr. P. art. 894.1, and properly punished a man who had horribly abused the trust of his teenage stepdaughter, by drugging, raping, and scarring her for a lifetime.

There are no grounds to excuse or justify his conduct. The court adequately considered the defendant’s tragic family history and the significant impact his incarceration would have on his son. The court noted that the defendant is not the worst of this type offender, but also noted that the defendant substantially benefited from the plea agreement and reduced sentencing exposure.

This sentence does not shock the sense of justice, nor is it disproportionate to the severity of this heinous offense.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      .The defendant was originally charged by bill of information with forcible rape and distribution of morphine. He was allowed to plead to the reduced charge of aggravated incest, La. R.S. 14:78.1, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). As part of the plea agreement, the state agreed to dismiss the distribution of morphine prosecution.

      . At the time of the rape, Adkins and Oliver were married, though separated. J.O. is the defendant’s son. He and S.A.A. remained close after the domestic breakup.

      . She pretended to swallow the pill, which she later produced at the hospital.

      . J.O. alleged this in correspondence to the court. He did not mention this while testifying at the sentencing hearing.

      . The court noted that the defendant is 34 years old, healthy, has ADHD which he treats with medication, is musically talented, is a good car salesman, has a GED, and appears to be very intelligent with eloquent writing skills. The court stated that the defendant has had a hard life. The defendant was adopted at a young age. His adoptive father was injured in a construction accident and suffered severe brain damage, and his adoptive mother died from cancer. The defendant had a brother through his adoptive family, but he died in a car wreck, and his adoptive father blamed him for his brother's death. When the defendant learned that he was adopted, he contacted and had plans to meet his biological mother, but the night before they were to meet, she committed suicide. The defendant had two children, one of whom is J.O., with his first wife, who later died from multiple sclerosis, and two children with his second wife, Gayla Adkins, from whom he is now separated. The court noted that the defendant’s son, J.O., who lives with him, has special needs and that the defendant and J.O. love each other very much.

      . The defendant had no prior felony convictions, but had pled guilty to domestic abuse battery and DWI, first offense. The PSI indicated that one dozen charges had been declined or dismissed in the six years before this crime occurred.

      . The court found that there was a possibility that the defendant would commit another crime during a period of suspended sentence or probation; that he was in need of correctional treatment in a custodial environment that could be provided most effectively by his commitment to an institution; and any lesser sentence would deprecate the seriousness of this crime.

      . One charge was reduced and the other was dismissed.

      . Although the trial court did not verbally inform the defendant of the time period within which to file an application for post-conviction relief at sentencing, the defendant was properly advised of the prescriptive period in writing. See La. C. Cr. P. art. 930.8.

      . The defendant stated in open court that he was well pleased with his representation in district court. Nonetheless, he now complains that his lawyer told him to write a letter only about his life, rather than the alleged crime, and not to speak at sentencing. He also complains that he didn’t realize that he would have to serve 85% of his prison time, since the offense to which he pled is a crime of violence. La. R.S. 14:2(B).

      . Remarkably, in the six years prior to sentencing, this defendant had one dozen criminal charges refused or dismissed, ranging from violation of a protective order, DWI, drug possession, and domestic abuse battery. He was arrested for DWI 3 after he bonded out on the instant charges.

      . The defendant claimed to be under the influence at the time of the incident.

      . J.O. has medical and developmental difficulties.

      . An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.I983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. This record shows thorough consideration of the factors and an adequate factual basis for sentence. Second, the court must determine whether the sentence is constitutionally excessive. 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 infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379. A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641; State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792; 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.

      .A third of the sentence was suspended.

      . The original charges had mandatory hard labor exposure: forcible rape (up to 40 years), and distribution of morphine (up to 30 years). La. R.S. 14:42.1 and La. R.S. 40:967(A)(1).


author: LOLLEY, J.

text:
    James BORDERS, Plaintiff-Appellant v. BOGGS & POOLE CONTRACTING GROUP, INC., DefendantAppellee.
    No. 49,228-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Washington & Wells, Shreveport, by Alex J. Washington, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, LLP, by Robert A. Dunkelman, Shreveport, Jessica L. Thorn-hill, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| plaintiff, James Borders, appeals a judgment from the Office of Workers’ Compensation, District 1W, Bossier Parish, Louisiana (the “OWC”), in favor of Boggs & Poole Contracting Group, Inc. and the Phoenix Insurance Company (the “defendants”). For the following reasons, we affirm the trial court’s judgment.

Facts

Borders claims that on February 19, 2010, he injured his knee and back while on the job with his employer Boggs & Poole Contracting Group, Inc. Borders was treated at the hospital for pain related to his knee, but not immediately after the accident. An X-ray taken at that hospital visit showed that there was no fracture, and an MRI taken was essentially normal. Borders began receiving workers’ compensation benefits as a result of his workplace accident.

In August 2010, Borders was evaluated by Dr. Donald Smith for the defendants’ second medical opinion. In his report, Dr. Smith opined that Borders showed signs of “marked emotional magnification of symptoms” and determined that there was no need for surgical or invasive intervention. Dr. Smith believed Borders was medically capable of returning to full and unrestricted work. Borders continued to receive benefits despite Dr. Smith’s August 2010 report.

Eventually, Borders filed a disputed claim for compensation on June 22, 2012, seeking to obtain pain management, a choice of pain management physician, and penalties and attorney fees. Soon after, Borders’ benefits were terminated following a reexamination by Dr. Smith and a surveillance 12video which defendants maintain indicated that Borders was willfully misrepresenting his condition for the purpose of obtaining workers’ compensation benefits. In response to the termination of his benefits, Borders amended his claim, alleging that his wage benefits were improperly terminated or reduced.

A trial of the matter commenced on August 20, 2013, at which Borders appeared pro se. After the conclusion of the trial, the workers’ compensation judge (“WCJ”) took the matter under advisement and subsequently entered judgment in favor of the defendants. In its judgment, the WCJ ordered that: Borders’ demand for benefits be dismissed based on the finding of fraud in violation of La. R.S. 23:1208; he pay a civil penalty of $1,000.00 to the Kids Chance Scholarship Fund; he pay restitution to the defendants for all benefits paid to him through June 11, 2012; and, he pay all costs of litigation. In extremely thorough reasons for judgment, the WCJ concluded that Borders had forfeited his rights to any workers’ compensation benefits through his willful misrepresentations to obtain benefits. This appeal by Borders ensued.

Discussion

On appeal Borders argues that the WCJ committed manifest error in denying his claims for workers’ compensation benefits. In support of his argument, Borders states that it is undisputed that he was injured on the job and the defendants provided no evidence that he was malingering. The defendants do not dispute that an accident occurred; however, they do dispute the nature and extent of the injuries and their causal relationship to [sthe accident. The defendants contend that the OWC properly determined that the evidence proved that Borders not only lacked credibility, but that he clearly made false statements and misrepresentations constituting fraud under La. R.S. 23:1208. We agree.

Louisiana R.S. 23:1208 states in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This statute authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and, (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Daniels v. Hemphill Const. Co., 45,946 (La.App.2d Cir.01/26/11), 57 So.3d 428, writ denied, 2011-0633 (La.05/06/11), 62 So.3d 128. Because statutory forfeiture of ^workers’ compensation benefits for willfully making a false statement for the purpose of obtaining benefits is a harsh remedy, it must be strictly construed. Daniels, supra; Risk Management Servs. v. Ashley, 38,431 (La.App.2d Cir.05/14/04), 873 So.2d 942, writ denied, 2004-1481 (La.09/24/04), 882 So.2d 1138. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. An inadvertent and inconsequential false statement will not result in the forfeiture of benefits. Daniels, supra.

A WCJ’s decision to impose or deny forfeiture under La. R.S. 23:1208 is a factual finding which will not be disturbed on appeal absent manifest error. Brooks v. Madison Parish Serv. Dist. Hosp., 41,-957 (La.App.2d Cir.03/07/07), 954 So.2d 207, writ denied, 2007-0720 (La.05/18/07), 957 So.2d 155.

When a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Wilson v. General Motors Corp., 45,232 (La.App.2d Cir.05/26/10), 37 So.3d 602. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own infer-enees and evaluations are as reasonable. Rosell v. ESCO, supra; Read v. Pel-State Oil Co., 44,218 (La.App.2d Cir.05/20/09), 13 So.3d 1191. Where the factfinder’s conclusions are based on determinations | ^regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact 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. Rosell v. ESCO, supra; Hansford v. St. Francis Medical Ctr., Inc., 43,984 (La.App.2d Cir.01/14/09), 999 So.2d 1238. When there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Wilson v. General Motors Corp., supra.

Our review of this record shows that the defendants clearly met their burden, and the WCJ’s judgment was not in error. Initially, we note that Borders failed to offer any evidence in support of his claims for benefits. Whereas Borders repeatedly insisted that a doctor told him he had a “cracked kneecap” due to his accident, he presented no evidence, other than his dubious testimony, to show that anything was medically wrong with him. Despite Borders’ protestations that he had a cracked kneecap, the record shows that when Borders presented at the hospital for his knee pain on February 23, 2010 (several days after the accident), X-ray of the knee were negative for fracture. Furthermore, an MRI of his knee was essentially normal. The defendants’ physician, Dr. Don Smith, offered a second medical opinion on Borders’ condition. Curiously, Borders insisted at trial that the OWC investigate Dr. Smith, who opined that Borders exhibited |fi“marked emotional magnification of symptoms and findings.” Dr. Smith testified that Borders would not require any surgery or invasive procedure as he saw no abnormalities that should constitute an impairment to return to full and unrestricted work and/or leisure activities.

Furthermore, the surveillance video obtained by the defendants showed that Borders’ “extracurricular activities” demonstrated that his claims of a disability and inability to work are untrue. The WCJ made the following observations in the reasons for judgment:

The video depicts Mr. Borders performing a wide range of activities, including lifting a boat battery, carrying a small boat from the back of his truck, washing his car, and generally performing activities well beyond his reported abilities. Of particular note, on February 25 and 26, 2012, investigators observed him sin-glehandedly unloading a pirogue from his truck, fishing for several hours, and then reloading the pirogue back into his truck. He performed numerous other activities that while perhaps routine, substantially differ from claimant’s representation of his condition. At no point in the video did he appear injured or in any pain. However, just two days later he complained of such extensive low back and leg pain that Dr. Kerr recommended a bilateral SI transoraminal epidural steroid injection. [Footnote omitted].

Despite his rigorous activity on the surveillance tape, when Borders presented to Dr. Smith, he came to the office using a cane. Dr. Smith continued to believe that Borders was magnifying his symptoms; had reached maximum medical improvement; and, was not a candidate for surgery.

In concluding that Borders willfully misrepresented his condition to the doctors, attorneys and the OWC in order to obtain workers’ compensation benefits, the WCJ specifically noted:

17Having observed Borders at trial and in the light of the evidence offered by defendants, ... he is not credible. He changed his story on multiple occasions during his deposition when he was confronted with the surveillance evidence. He repeatedly broke into tears at trial, only to recover immediately upon exiting the courtroom. While he questioned whether he was able to drive at trial, he drove off in his own vehicle when trial recessed for lunch. Claimant acknowledged that he uses his cane primarily when he sees his doctors or his lawyer, or when he comes to court. It seems his injuries likewise surface only when necessary to support his claim.

Making such credibility determinations is within the province of the factfinder, and considering this record, we cannot say that the WCJ was manifestly erroneous or clearly wrong. The defendants proved that Borders willfully misrepresented his injury for the purpose of obtaining benefits. Borders’ statements and actions were not inadvertent, but clearly made willfully, and the WCJ’s judgment was not in error.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of Boggs & Poole Contracting Group, Inc. and the Phoenix Insurance Company is affirmed. All costs of this appeal are assessed against James Borders.

AFFIRMED.

      . When asked by the WCJ if he had "any exhibits ... to offer into the record," Borders responded that he had a court record "from Caddo” for an offense against him of “possession of marijuana with an intent." However, during the trial, he could not even produce that record. The WCJ noted the lack of relevance of the marijuana charge in the workers’ compensation proceeding. Notably, Borders made no claim that his marijuana usage was for medicinal purposes of treating pain associated with his alleged workplace injury.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Tammy ANDERSON, Appellant.
    No. 49,235-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.
    Louisiana Appellate Project by Douglas Lee Harville, for Appellant.
    J. Schuyler Marvin, District Attorney, Charles Smith, Assistant District Attorney, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

|;The defendant, Tammy Anderson, was charged with access device fraud and theft of the assets of an aged person. Pursuant to a plea agreement, she pled guilty to middle grade theft. She was sentenced to serve four years at hard labor, with credit for time served, a $1,000 fíne plus court costs, or 60 days in jail with credit for time served. She now appeals her sentence.

FACTS

On February 21, 2013, Anderson was charged with committing theft of assets of an aged person, Morene M. Walston, in violation of La. R.S. 14:67.21, during the period from July to October 2012.

On July 22, 2013, Anderson appeared and withdrew her plea of not guilty, and entered a guilty plea to middle grade theft, La. R.S. 14:67, in exchange for the state’s agreement not to file a multiple-offender bill and to dismiss another charge of access device fraud.

The record shows that the trial court determined that Anderson understood the proceedings and freely and voluntarily waived her rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Anderson admitted that she worked for Morene M. Walston, age 93, in Webster Parish during the months of July 2012 through October 2012. During that time she used and appropriated the victim’s assets without her authority. The state requested restitution in the amount of $21,043,20. The trial court concluded that Anderson’s plea was freely and voluntarily given and accepted her guilty plea.

12Anderson appeared for sentencing on September 23, 2013. The trial court noted that Anderson obtained her GED, attended college and held several restaurant jobs. Anderson is divorced and has one daughter, 17, and one son, 4, both of whom live with her ex-husband. The PSI revealed that Anderson has a considerable record of offenses, mostly drug-related, involving procurement of controlled dangerous substances by fraud, but also forgery and felony theft.

The instant offense was discovered when the victim’s grandson met the defendant while conducting a ministry with his wife at the jail where Anderson was incarcerated. Because Anderson had no place to stay and no job to support herself on release, they allowed her to stay at his grandmother’s home, rent-free, in exchange for her assistance in caring for his grandmother. During the months of her employment, Anderson would frequently take Mrs. Walston’s car during the night and leave her at home alone. Additionally, items went missing. The Browns fired Anderson. Thereafter, Mr. Brown discovered the money was missing when he attempted to reconcile his grandmother’s bank account for her. Fourteen checks, some written before the defendant was fired and some after, were forged by Anderson. The PSI indicates that most of the money was recovered.

Mr. Brown did not want restitution because he believed Anderson would only victimize someone else, and the trial court agreed. It sentenced Anderson to four years at hard labor, with credit for time served, and was fined $1,000 plus court costs, or 60 days in jail with credit for time served.

| .¡Anderson filed a motion to reconsider sentence on October 1, 2013, in which she claimed that although her sentence was within the statutory guidelines, her sentence was constitutionally excessive. Specifically, she alleged that the sentence was merely punitive and would not achieve any goal of rehabilitation. The trial court denied the motion on October 21, 2013. Anderson’s motion for appeal was filed and granted on November 19, 2013.

DISCUSSION

Anderson’s sole assignment of error is that the trial court erred in imposing a sentence herein that is unconstitutionally excessive. She argues that the sentence fails to provide her with the opportunity to be rehabilitated and to re-enter society as a productive member, and that the punishment is not reasonable for her nonviolent crime. She argues that four years in prison for a nonviolent offense was nothing more than a purposeless and needless imposition of pain and suffering.

In opposition, the state argues that Anderson stole $21,043.20 and received considerable benefit from the state’s agreement to dismiss another charge, allow her to plead guilty to a charge with a reduced sentence exposure, and not file a multi-bill against her in light of her criminal record. After carefully considering the defendant’s personal situation and all mitigating and aggravating circumstances, the trial court imposed a sentence that was less than the maximum.

La. R.S. 14:67 defines theft as follows:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of |4fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of one thousand five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
(2) When the misappropriation or taking amounts to a value of five hundred dollars or more, but less than a value of one thousand five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than two thousand dollars, or both.
La. R.S. 14:67.21 defines theft of the assets of an aged or disabled persons as follows:
B. Theft of the assets of an aged person or disabled person is any of the following:
(1) The intentional use, consumption, conversion, management, or appropriation of an aged person’s or disabled person’s funds, assets, or property without his authorization or consent for the profit, advantage, or benefit of a person other than the aged person or disabled person without his authorization or consent.
(2) The intentional misuse of an aged or disabled person’s power of attorney to use, consume, convert, manage, or appropriate any funds, assets, or property of an aged person or disabled person for the profit, advantage, or benefit of a person other than the aged person or disabled person without his authorization or consent;
(3) The intentional use, consumption, conversion, management, or appropriation of an aged person’s or disabled person’s funds, assets, or property through the execution or attempted execution of a fraudulent or deceitful scheme designed to benefit a person other than the aged person or disabled person.
C. (1) Whoever commits the crime of theft of the assets of an aged person or disabled person when the value of the theft equals one thousand five hundred dollars or more may be imprisoned, with or without hard labor, for not more than ten years and shall be fined not more than three thousand dollars, [5or both.
(2) Whoever commits the crime of theft of the assets of an aged person or disabled person when the value of the theft equals five hundred dollars or more, but less than one thousand five hundred dollars may be imprisoned, with or without hard labor, for not more than five years and shall be fined not more than two thousand dollars, or both.
E. In addition to all other penalties, a person convicted under this Section shall be ordered to make full restitution to the victim and any other person who has suffered a financial loss as a result of the offense. If a person ordered to make restitution pursuant to this Section is found to be indigent and therefore unable to make restitution in full at the time of conviction, the court shall order a periodic payment plan consistent with the person’s financial ability.

The trial court has wide discretion in imposing sentence 'within minimum and maximum limits allowed by the statute. A sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,233 (La.App. 2 Cir. 1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App. 2 Cir. 9/21/11), 73 So.3d 473, writ denied, 2011-2304 (La.3/9/12), 84 So.3d 550. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App. 2 Cir. 10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App. 2 Cir. 9/21/11), 73 So.3d 1021, writ denied, 2011-2347 (La.3/9/12), 84 So.3d 551.

A sentence is reviewed for ex-cessiveness by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and whether it is constitutionally excessive. State v. Gardner, | fi46,688 (La.App. 2 Cir. 11/2/11), 77 So.3d 1052. Where the defendant’s motion to reconsider sentence alleges mere excessiveness of sentence, on appeal the reviewing court is limited to considering whether the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Boyd, 46,321 (La.App. 2 Cir. 9/21/11), 72 So.3d 952.

The sentencing court is not required to list every aggravating or mitigating circumstance; the court must merely articulate the factual basis for imposing the sentence. State v. Cunningham, 46,-664 (La.App. 2 Cir. 11/2/11), 77 So.3d 477. The defendant’s personal history and criminal record, as well as the seriousness of the offense are some of the elements considered, but the trial court is not required to weigh any specific matters over other matters. State v. Moton, 46,607 (La.App. 2 Cir. 9/21/11), 73 So.3d 503, writ denied, 2011-2288 (La.3/30/12), 85 So.3d 113; State v. Caldwell, 46,645 (La.App. 2 Cir. 9/21/11), 74 So.3d 248, writ denied, 2011-2348 (La.4/27/12), 86 So.3d 625. All convictions and all prior criminal activity may be considered as well as other evidence normally excluded from the trial. State v. Platt, 43,708 (La.App. 2 Cir. 12/3/08), 998 So.2d 864, writ denied, 2009-0265 (La.l 1/6/09), 21 So.3d 305. Maximum sentences are generally reserved for the worst offenses and offenders. State v. Taylor, 41,898 (La.App. 2 Cir. 4/4/07), 954 So.2d 804.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App. 2 Cir. 11/2/11), 77 So.3d 1047.

|7After review, we find no abuse of discretion by the sentencing court regarding the sentence imposed, nor do we find the sentence imposed to be constitutionally excessive. Anderson received a considerable benefit from the plea agreement that allowed her to plead to a lesser charge, to have the charge of access device fraud dismissed, and not face a multi-bill based on her prior felonies. Anderson’s four-year sentence at hard labor and $1,000 fine fall within the statutory range. The PSI shows that several times the courts have shown her leniency and partially suspended her sentences in favor of probation, but her criminal history shows a pattern of theft and fraud instead of rehabilitation. The sentence imposed was less than the maximum available prison time and only half the possible fine. Furthermore, Anderson was not required to pay any restitution. The Browns generously gave Anderson a place to live rent-free and a job and in exchange she took advantage of them and stole a considerable sum of money from their grandmother. The sentence imposed is not grossly disproportionate to the severity of the crime and does not shock the sense of justice.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.