author: PICKETT, Judge.

text:
    Kasandra ALEXANDER, Individually and on Behalf of Milton Bernard v. ACADIAN AMBULANCE SERVICES, INC., et al.
    No. 12-1236.
    Court of Appeal of Louisiana, Third Circuit.
    May 22, 2013.
    John Nickerson Chappuis, Voorhies & Labbé, (A Professional Law Corporation), Lafayette, LA, for Defendant/Applicant, Acadian Ambulance Services, Inc.
    M. Candice Hattan, A Professional Corporation, Lafayette, LA, for Plaintiff/Respondent, Kasandra Alexander.
    Court composed of ELIZABETH A. PICKETT, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   PICKETT, Judge.

L The defendant ambulance service filed a supervisory writ application seeking review of the trial court’s denial of its exception of prescription, urging prescription was not interrupted by the plaintiffs suit for medical malpractice because she did not first present her claims to a medical review panel. For the following reasons, we deny the writ application.

FACTS AND PROCEDURAL HISTORY

On December 23, 2008, Milton Bernard, a patient at a Lafayette rehabilitation facility, was injured when an Acadian Ambulance Services, Inc. (Acadian) employee was attempting to unload him from an ambulance in a non-emergency situation, and his gurney fell to the ground. On April 13, 2009, Mr. Bernard’s daughter, Kasandra Alexander, filed suit, individually and on his behalf, seeking damages for the ambulance driver’s alleged negligence. She did not file a claim with the Patient’s Compensation Fund (PCF) for a medical review panel as provided in the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41-49 (LMMA).

After obtaining an extension to file responsive pleadings, Acadian filed an answer to the suit on October 31, 2011. The parties continued trial preparation, including discovery, which had already begun. On July 23, 2012, Acadian filed a | ^peremptory exception of prescription in which it alleged that Ms. Alexander’s claims were prescribed because the suit alleged acts of medical malpractice and was filed without first submitting the claims to a medical review panel. Following a hearing, the trial court denied the exception, and Acadian filed this writ application seeking a review of the trial court’s ruling.

STANDARD OF REVIEW

The only issue presented for our consideration is a legal issue, and no dispute regarding material facts exists. In such cases, the reviewing court applies the de novo standard of review. Kevin Assocs., L.L.C. v. Crawford, 03-211 (La.1/30/04), 865 So.2d 34. Accordingly, we must determine if the trial court’s denial of Acadian’s exception of prescription is legally correct. Forum for Equality PAC v. McKeithen, 04-2477, 04-2523 (La.1/19/05), 893 So.2d 715.

DISCUSSION

Acadian asserts that the trial court erred in denying its exception of prescription because (1) Ms. Alexander’s claims are governed exclusively by the LMMA, (2) she did not present her claims to a medical review panel before filing suit in district court, and (3) more than three years have elapsed since the alleged malpractice; therefore, her claims are prescribed.

The prescriptive period for medical malpractice claims is one year from the date of the alleged negligent act or one year from the date of the discovery of the alleged negligent act. La.R.S. 9:5628(A). Nonetheless, all medical malpractice claims must be filed within three years of the alleged negligent act. Id. This prescriptive period is subject to suspension by the LMMA which provides in La.R.S. 40:1299.47(A)(1), that medical malpractice claims against qualified health care providers “shall be reviewed by a medical review panel,” and in La.R.S. |s40:1299.47(A)(2)(a), that the filing of a medical malpractice claim with a medical review panel suspends prescription “until ninety days following notification ... to the claimant or his attorney of the issuance of the opinion by the medical review panel.”

Ms. Alexander does not dispute that her claims are governed by the LMMA and that Acadian is a “qualified health care provider.” She contends, however, that Acadian waived its right to a medical review panel by not filing an exception of prematurity before answering her suit; therefore, her claims are not prescribed.

Ms. Alexander’s argument is premised on La.R.S. 40:1299.47(B)(l)(c), which provides that the medical review panel may be waived if all the parties agree and the holding in Barraza v. Scheppegrell 525 So.2d 1187 (La.App. 5 Cir.1988), that pursuant to La.Code Civ.P. arts. 926 and 928, a defendant doctor who failed to file an exception of prematurity before answering a medical malpractice lawsuit waived his right to a medical review panel. The trial court accepted Ms. Alexander’s arguments and overruled Acadian’s exception.

Relying on Wesco v. Columbia Lakeland Medical Center, 00-2232 (La.App. 4 Cir. 11/14/01), 801 So.2d 1187, writ denied, 01-3304 (La.3/8/02), 811 So.2d 884, Acadian attempts to distinguish its claim of prescription from a claim of prematurity. In Wesco, the plaintiff filed a claim with the PCF for a medical review panel as provided in the LMMA. She also filed a petition for damages asserting medical malpractice by a medical center and two doctors. In the meantime, the plaintiffs PCF claim was dismissed because she failed to comply with the attorney chairman requirements of the LMMA. The medical center defendant filed an exception of prematurity to the lawsuit, asserting that the LMMA requires a claim to be submitted to a medical review panel before suit is |4filed. The trial court granted the exception of prematurity and dismissed the lawsuit against the medical center.

Thereafter, the plaintiff made another claim with the PCF for a medical review panel. The medical center and one of the doctors filed exceptions of prescription. The trial court granted the exceptions and dismissed the plaintiffs claims against those defendants with prejudice. On appeal, the plaintiff contended that her claim against a third doctor, Dr. Sarah Laine, was still valid because Dr. Laine never filed an exception of prematurity. The fourth circuit affirmed the trial court, finding there was no evidence that Dr. Laine was served with the lawsuit or was even aware of the suit. Further, the court explained:

The jurisprudence is clear that a medical malpractice lawsuit that is premature because there is no ongoing claim filed before the PCF for a medical review panel does not interrupt prescription. Ms. Wesco cannot overcome this rule by arguing that any defendant, particularly one who likely was never served with the lawsuit, was required to file an exception of prematurity for the lawsuit to be premature. In light of the LeBreton [v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226,] decision, not one of the old cases cited by Ms. Wesco in her reply brief is sufficient authority to require that any defendant in the instant case file an exception of prematurity.

Id. at 1190 (citations omitted).

LeBreton, 714 So.2d 1226, presented the issue of whether the general provision on interruption of prescription found in La. Civ.Code art. 3462 applies simultaneously with the specific suspension of prescription provision contained. in La.R.S. 40:1299.47(A)(2)(a) of the LMMA. The plaintiff in LeBreton filed a wrongful death lawsuit on August 18, 1992, against three health care providers and also filed a request for review by a medical review panel with the PCF on August 19, 1992, seeking review of the claims made against the same health care providers in its lawsuit. The defendants filed exceptions of prematurity which were granted, |fiand the plaintiffs lawsuit was dismissed without prejudice. The plaintiff presented his claims to the medical review panel which found no medical malpractice on the part of any of the defendants. Approximately five months after receiving notice of the panel’s decision, the plaintiff filed suit against the defendant health care providers. The defendants filed exceptions of prescription.

Based on this court’s decision in Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3 Cir.1985), the trial court in LeBreton denied the defendants’ exceptions, and the fourth circuit denied writs. Lebreton v. Rabito, 94-1440 (La.App. 4 Cir. 2/23/95), 650 So.2d 1245. Hernandez held that filing a suit in district court against a qualified health care provider interrupts the prescription for filing a medical malpractice claim with a medical review panel and the one-year prescriptive period begins to run anew after the ninety-day suspension period of La.R.S. 40:1299.47(A)(2)(a) ends. Conversely, in LeBreton, 714 So.2d 1226, the supreme court concluded that the specific provisions of the LMMA alone addressed the issue presented and held that the plaintiffs filing her claim with the medical review panel suspended prescription until ninety days after notice of the medical review panel’s opinion to the plaintiff or her attorney. The supreme court reversed Hernandez’s concurrent application of the provisions of the LMMA and the more general libera-tive prescription articles of the Civil Code. Accordingly, the supreme court held that the plaintiffs suit filed five months after notice of the medical review panel’s decision was filed too late, and her claim had prescribed pursuant to La.R.S. 40:1299.47(A)(2)(a). LeBreton, 714 So.2d 1226

Acadian argues that under LeBreton, 714 So.2d 1226, and its progeny, Ms. Alexander’s claims are prescribed. Notably, however, Acadian does not address the fact that the defendants in Wesco, 801 So.2d 1187, and LeBreton did |finot file answers or the fact that the doctors who filed the exceptions of prescription in Le-Breton had filed exceptions of prematurity in the trial court to have the plaintiffs suit dismissed until the medical review panel proceeding was complete.

Against this backdrop, we address the issue presented. The supreme court addressed- the issue of prematurity in the context of a medical malpractice claim in Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119, stating:

The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. This exception is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. In this type of case, the exception of prematurity neither challenges nor attempts to defeat any of the elements of the plaintiffs cause of action. Rather, the defendant asserts that the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement. Thus a malpractice claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been screened by a pre-suit medical review panel. La.Rev.Stat. 40:1299.47 A. This pre-suit screening process acts to delay, not to defeat, a tort suit for malpractice. Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law § 21-3(f) (1996).

The objection of prematurity is waived unless pled in a dilatory exception prior to answer or judgment of default. La.Code Civ.P. arts. 926, 928(A). The supreme court addressed this issue in a different context in Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La.1993). In Barrie, the parties’ contract required the plaintiffs to have the property they alleged was damaged by termites inspected by the defendants before filing suit. They did not. After answering the petition, the defendants filed a peremptory exception of no cause of action and motions for summary judgment. The supreme court held that the defendants’ “prematurity argument which is based on the failure to comply with a contractual | .¡provision, was waived when [they] answered plaintiffs’ original petition without a prior pleading of that dilatory exception objection. LSA-C.C.P. arts. 926, 928(A).” Id. at 1018. The court admonished, “[o]nce waived, the prematurity argument could not be resurrected by camouflaging it as a substantive issue.” Id.

Acadian seeks to do exactly what the defendants in Barrie sought to do— camouflage an exception of prematurity as an exception of prescription. It cannot, and LeBreton, 714 So.2d 1226, does not stand for the proposition that it can. As explained in Spradlin, 758 So.2d at 119, a medical malpractice claim “is subject to dismissal on a timely filed exception of prematurity if such claim has not first been screened by a pre-suit medical review panel.” Notwithstanding this requirement, a defendant who fails to file an exception of prematurity before filing an answer when the plaintiff failed to take such preliminary step waives the exception. Barrie, 625 So.2d 1007. See also, Moon Ventures, L.L.C. v. KPMG, L.L.P., 06-1520 (La.App. 3 Cir. 8/15/07), 964 So.2d 446, writ denied, 07-1862 (La.11/21/07), 967 So.2d 1156, where another panel of this court reached the same conclusion in the context of a claim for negligence under the Louisiana Accountancy Act, La.R.S. 37:71-125. The Louisiana Accountancy Act requires that such claims be reviewed by a public accountant review panel before suit can be filed against a certified public accountant or accounting firm. La.R.S 35:102. Claims for professional liability against certified public accountants are subject to a one-year prescriptive period and a three-year peremptive period. La. R.S. 9:5604.

Acadian seeks to bolster its argument with Farve v. Jarrott, 04-1424 (La.App. 4 Cir. 10/13/04), 886 So.2d 594, writ denied, 05-07 (La.3/11/05), 896 So.2d 74. We have reviewed and considered Farve and find it does not affect our conclusion. The fourth circuit based its conclusion on Le-Breton, 714 So.2d 1226, without analyzing the differences in the facts in LeBreton and the facts in Farve as we have. Importantly, the fourth circuit did not consider the supreme court’s discussion of prematurity in Spradlin, 758 So.2d 116. Moreover, Farve cites Wesco, 801 So.2d 1187, as support for its holding, which, as discussed above, is not applicable because the defendant health care provider in Wesco did not file an answer before filing an exception of prematurity.

For these reasons, we find the trial court’s denial of Acadian’s exception of prescription is legally correct.

DISPOSITION

The application for supervisory writs is denied, and the matter is remanded to the trial court for further proceedings.

WRIT DENIED.

      . In Farve, the PCF filed an exception of prescription asserting that pursuant to LeBreton 714 So.2d 1226, the plaintiff's premature lawsuit did not interrupt prescription under the LMMA; therefore, the plaintiff’s request for a medical review panel was untimely. Despite the fact that the plaintiff had filed suit within one year of the surgery that put him on notice of the defendant doctor’s alleged malpractice and the fact that the defendant doctor had filed an answer to the suit, the fourth circuit reversed the trial court's denial of the exception of prescription.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Gary Lee AULPH, Appellant.
    No. 47,966-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2013.
    Rehearing Denied June 20, 2013.

      Louisiana Appellate Project by Douglas Lee Harville, for Appellant.
    Gary Lee Aulph, Pro se.
    Jerry L. Jones, District Attorney, Shirley M. Wilson-Davis, Holly A. Chambers-Jones, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and' MOORE, JJ.
   MOORE, J.

|TThe defendant, Gary Lee Aulph, was convicted of failure to register as a sex offender, second offense, in violation of La. R.S. 15:542.2.1. He received a sentence of 20 years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This appealed followed. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

On October 24, 2011, the defendant, Gary Lee Aulph, was charged by a second amended bill of information with failure to register as a sex offender, second offense, in violation of La. R.S. 15:542.2.1. According to the bill of information, Aulph failed to register and/or update his registration between April 16, 2009 and September 27, 2009. A jury trial commenced against him on April 16, 2012.

Renee Johnson, a deputy sheriff with the Ouachita Parish Sheriffs Office, testified that she has worked in the sex offender registration office since July of 2007. According to Johnson, Aulph was previously convicted in California for committing two different sex crimes involving minors. Following his release from prison, Aulph relocated to West Monroe, Louisiana, to live with his parents. In accordance with Louisiana’s sex offender registration statutes, Aulph first reported for registration with the Ouachita Parish Sheriffs Office on October 27, 1997. At that time, Louisiana registration laws, La. R.S. 15:540 et seq., required him only to register annually for a period of 10 years. As such, Aulph’s registration period was scheduled to end on October 27, 2007.

LAulph was subsequently arrested, however, for failure to register between August and November of 2005. On July 11, 2007, he was convicted of first offense failure to register as a sex offender and sentenced to a period of imprisonment. Johnson said that since Aulph had failed to complete the 10-year registration requirement, he was required to continue registering as a sex offender upon his release from prison. Thus, when the defendant was paroled in March of 2008, the new 2008 amendments to the registration statutes became applicable to him.

These 2008 amendments classified offenders in one of three tiers, which was determined by the seriousness of their offenses. Tier I offenders would be required to register annually for life; Tier II offenders would register bi-annually for life; and Tier III offenders must register quarterly for life. Regardless of them tier status, all offenders were required to notify the registration office of any change in their registered address. Also, until an offender is formally classified as a Tier, I, II, or III offender, he is treated as a Tier III offender. See La. R.S. 15:544.

Thus, from the time he was paroled in 2008 until the time he received his official tier status on September 23, 2010, Aulph was treated as a Tier III offender and required to register quarterly. The state introduced into evidence a sex offender registration form signed by Aulph on March 31, 2008, in which he acknowledged that he was expected to register with the sheriffs office quarterly for life and keep the office informed of any change |sof address or other pertinent information. The state also introduced into evidence two letters that Johnson sent to Aulph reminding him of his upcoming quarterly registration dates.

According to Deputy Johnson, the defendant last registered on March 27, 2009, and his next quarterly registration should have taken place on June 27, 2009. However, on April 16, 2009, Johnson learned that Aulph was no longer living at his registered address and he never informed the registration office that he moved. She testified that Aulph failed to report for registration on June 27, 2009, and September 27, 2009. Thus, he was in violation of the sex offender registration statutes for failing to notify the office of a change in his address, as well as failing to comply with his quarterly registration requirement.

Jeannie Zubigaray, the defendant’s mother, testified that she knew Aulph was a registered sex offender and that he was required to register quarterly with the Ouachita Parish Sheriffs Office. She said that an Officer Davis came by the house to meet with Aulph on April 16, 2009. She told Davis that she had not seen her son for a few weeks, but that he recently called and said he was not coming home because “he messed up.”

Lieutenant Robert Davis of the Ouachita Parish Sheriffs Office corroborated Zubi-garay’s testimony. He went to Aulph’s registered address on April 16, 2009. Aulph was not home. Davis asked Zubiga-ray if she knew where the defendant was, and Zubigaray told him that she had not seen Aulph in two weeks. She told Davis that Aulph would not be coming home because he was in trouble.

14Officer Michael C. LaCroix, a probation and parole officer for the State of Louisiana, testified that he served as Aulph’s probation officer during 2008. As a condition of his parole, Aulph was required to sign a sex offender contract acknowledging that he would register quarterly for life and notify the office of any change in his registered address. LaCroix said the defendant was initially compliant with his parole conditions. However, when he attempted to visit Aulph on April 16, 2009, and May 4, 2009, Aulph was not home. The defendant’s mother told La-Croix that the defendant had recently called and said he could not come home and that if he came home he knew he would go to prison for the rest of his life.

Lieutenant Rick Fisher of the Ouachita Parish Sheriffs Office testified as a court-qualified expert in fingerprint analysis. He confirmed that Aulph’s fingerprints matched those taken by authorities in 2010 when Aulph was arrested for the instant offense. At the conclusion of Fisher’s testimony, the state rested.

The defendant called no witnesses nor offered any evidence.

The jury returned a verdict of guilty of second offense failure to register and/or update registration as a sex offender. The trial court ordered a presentence investigation (“PSI”) prior to the defendant’s sentencing.

During the sentencing hearing held on June 19, 2012, the state presented evidence of Aulph’s prior sex crimes. Monica Hicks, mother of one of the victims, testified that the defendant molested her seven-year-old daughter, N.W., in 2002. N.W. also testified to this incident, which occurred when Monica and her boyfriend, along with N.W., spent the night at a [ gfriend’s house. Aulph was also a guest in the home that night. N.W. awoke in the middle of the night to find that her underwear and shorts had been removed. Aulph was sitting next to N.W.’s bed and touching her vaginal and anal areas. N.W. told her family the next day, and Monica took N.W. to the hospital. Doctors determined that N.W. had been digitally penetrated in her vaginal and anal areas. Monica filed charges against Aulph, but she later learned that the charges had been dismissed.

Monica and N.W. testified regarding the severe effects of the molestation. N.W. has been in counseling for nearly 10 years. She became sexually active and involved with drugs at an early age. She attempted suicide when she was 15 years old, and then again at age 16. N.W. spent time in psychiatric hospitals and told her counselors that she attempted suicide because she could not cope with the molestation. Doctors diagnosed her with post-traumatic stress disorder resulting from the molestation.

Monica testified that N.W.’s attitude changed when she learned that Aulph had been arrested and that she would be able to testify against him. N.W. received her G.E.D., and was currently making plans to attend college. At the conclusion of her testimony, Monica asked the court to punish Aulph because she feared her daughter might relapse if the defendant were not held accountable for his actions.

N.W. testified that during the molestation, Aulph threatened to spank her if she screamed or told anyone. She also said Aulph threatened her with a gun. She suffered from frequent flashbacks of the molestation. The flashbacks were so severe that she attempted suicide on two occasions. She | ficould not focus on her education and was forced to drop out of high school after missing too many of her classes.

Deputy Brian Newcomer of the Ouachita Parish Sheriffs Office testified that N.W., her mother, father, and aunt all gave consistent statements concerning the molestation.

Deputy Johnson testified regarding two sex crimes involving minors that Aulph committed in California. The first incident involved a 12-year-old girl. Aulph was friends with the victim’s parents and frequently stayed the night at their house. Similar to the incident involving N.W., the victim woke one night to find that her clothes had been removed and the defendant standing over her. Aulph pulled her onto the floor and raped her. Sometime after the rape, the victim’s stepfather discovered love letters that Aulph had sent to the victim. The stepfather confronted the girl, and she told him that Aulph raped her. Aulph was arrested and pled guilty to lewd and lascivious acts with a minor under the age of 14.

Aulph’s second California conviction was for committing unlawful sexual intercourse with a 15-year-old girl during the summer of 1989. According to the police report, the victim stated that Aulph did not force her to have sex. However, the girl admitted that she had been drinking and taking prescription medication on the night that she slept with Aulph.

Officer Michael LaCroix, the defendant’s parole officer, testified about a sexual battery crime that Aulph committed while on parole. On April 5, 2009, at which time he was required to comply with the sex offender registration statutes, Aulph stayed the night with Hattie King and her young 17teenage daughter. During the middle of the night, Aulph snuck into the girl’s bedroom and began rubbing her legs and breasts while she slept. King awoke and caught Aulph in the act, chased him out of her house, and called the police. Eleven days later, LaCroix learned that Aulph had not been back to his registered address for nearly two weeks. It was believed that Aulph fled Louisiana after this incident because he knew he would be arrested. Aulph was eventually arrested in Tennessee for failure to register as a sex offender with the Tennessee State Police Department. He pled guilty to attempted failure to register and was eventually brought back to Louisiana and charged with the instant offense.

The district court reviewed the PSI report and noted that Aulph had multiple drug, theft, DWI, and possession of marijuana arrests. He had been previously convicted for simple battery, aggravated battery, aggravated assault, and contributing to the delinquency of a juvenile. He had inappropriate sexual contact with five known juveniles and caused serious harm to each of them. He failed to register as a sex offender on three separate occasions. He has been under supervision for over 20 years and had his probation or parole revoked five times. The district court believed Aulph had no remorse for his actions. Taking into consideration the appropriate sentencing factors in La. C. Cr. P. art. 894.1, the district court found Aulph to be the worst type of offender. As such, the court sentenced Aulph to 20 years’ imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

IsAulph filed a motion to reconsider sentence which was denied by the district court. He timely filed a motion for appeal.

DISCUSSION

By his first assignment of error, defendant alleges that the trial court erred by imposing an unconstitutionally harsh and excessive sentence. He claims his sentence of 20 years’ imprisonment served no purpose other than needless imposition of pain and suffering.

The state argues that the sentence was especially appropriate, noting that the district court provided detailed reasons as to why the maximum penalty was imposed.

La. R.S. 15:542.1.4 states, in pertinent part:

A. (1) A person who fails to register, periodically renew and update registration, provide proof of residence or notification of change of address or other registration information, or provide community notification as required by the provisions of this Chapter, and a person who knowingly provides false information to a law enforcement agency as provided in R.S. 15:542(0(8), shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence.
(2) Upon second or subsequent convictions, the offender shall be fined three thousand dollars and imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.

The trial court has wide discretion in imposing sentence within minimum and maximum limits allowed by the statute; therefore, 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). 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, 2011-2304 (La.3/9/12), 84 So.3d 550. An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App. 2 Cir. 11/2/11), 77 So.3d 1052.

A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court must only articulate a factual basis for 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.11/6/09), 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.

| mUnder 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.

In this instance, the district court sentenced Aulph to 20 years’ imprisonment, the maximum penalty permitted under La. R.S. 15:542.1.4. The district court adequately gave consideration to the circumstances of the offense, the information presented in the PSI, and the relevant factors set forth in La. C. Cr. P. art. 894.1. The district court noted that Aulph has an extensive criminal history, which includes multiple drug, theft, and aggravated crimes. He has been under supervision for the past 20 years, and has had his probation or parole revoked on numerous occasions. Aulph has had illicit sexual contact with at least five juvenile victims, all of whom he caused severe mental and emotional harm. He has shown neither remorse for his actions, nor a desire to seek help.

Considering Aulph’s extensive criminal history, a sentence of 20 years neither shocks the sense of justice, nor is it disproportionate to the severity of the offense. Therefore, this assignment of error is without merit.

The defendant filed a separate pro se brief and amended brief raising several assignments of error.

By his first assignment, Aulph alleges that the trial court erred by not enforcing a plea offer by the state that he asserts that he accepted. Aulph alleges that the state offered him a three-year sentence in exchange for a l^guilty plea. He states that on the day of trial, he accepted the plea offer, but the trial court now said that the offer was for five years. When defense counsel objected, the assistant district attorney stated that the original offer was made by a different prosecutor. Apparently, Aulph rejected the revised plea offer.

After review of the record and trial transcript, we find that the record before us does not support the defendant’s claim. Our review of the court minutes indicates that the defendant and counsel George Britton were advised of a plea offer in open court on July 20, 2011. The terms of the plea offer are not indicated. After two continuances, on October 24, 2011, the court minutes show that the defendant, with counsel present, declined the plea offer. Afterward, an amended bill of information was filed and the defendant waived formal arraignment and entered a plea of not guilty. Trial commenced on April 16, 2012. There is no mention of a plea offer again after the October 24, 2011, proceeding. Without any substantive evidence to support this claim, we conclude that this assignment is without merit.

By his second pro se assignment, Aulph contends that the trial court erred by overruling objections by defense counsel that no arraignment was held. While there is no transcript of the proceedings in this record, the court minutes indicate that counsel for the appellant objected that there had been no arraignment on the second amended bill of information. The objection was overruled; the defendant then waived formal arraignment and entered a plea of not guilty. The original bill of information, the amended bill of information and the second amended bill of information are in the record. |12The amended bill of information charges defendant for failing to register or update his registration on or about April 16, 2009. The second amended bill of information charges the defendant for failing to register or update his registration on or about April 16, 2009, through September 27, 2009.

Rearraignment after amendment of the bill of information is not required where the substance of the charge has not been changed. The purpose of an arraignment is to notify a defendant of the charge against him. La. C. Cr. P. art. 551. Where amendment of the indictment or bill of information is designed to cure deficiencies in the charging instrument and not to alter the nature of the crime, a defendant is not entitled to be rearraigned on the amended indictment or bill of information. State v. Bluain, 315 So.2d 749 (La.1975). State v. Jones, 587 So.2d 787 (La.App. 3 Cir. 10/2/91).

The Third Circuit in State v. Rodriguez, 476 So.2d 503 (La.App. 1 Cir. 10/8/85), previously held that the failure to rearraign a defendant after a bill of information was amended to correct the time interval during which his crime was committed did not constitute error.

In this instance, counsel objected to the failure of an arraignment on the second amended bill of information, but then immediately waived formal arraignment and entered a plea of not guilty. La. C. Cr. P. art. 555 states that “[a] failure to arraign the defendant ... is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.”

1 isThe defendant in this instance has presented no argument showing that he was prejudiced by the amendment to the bill of information, nor by the court overruling the defendant’s objection. It appears that immediately thereafter, counsel waived formal arraignment and entered a plea of not guilty. We conclude, therefore, that defendant’s assignment is without merit.

In his third and fourth pro se assignments of error, defendant contends the trial court erred by overruling objections by the defense on evidence Exhibit S-2, and to Deputy Johnson’s testimony regarding the contents of the exhibit.

Exhibit S-2 consisted of a letter dated September 13, 2010 to Aulph from Lieutenant Stacy Barrett, Deputy Director, Louisiana State Police, Louisiana Bureau of Criminal Identification and Information, State Sex Offender and Child Predator Registry. The letter informs the defendant of the three-tier registration scheme, and that, based on Aulph’s out-of-state conviction for lewd and lascivious acts with a child under 14 years, and unlawful sexual intercourse with a minor under 18, he is required to register pursuant to Tier III, which requires lifetime quarterly registration and updating.

Our review indicates that defendant’s counsel objected to Deputy Johnson’s qualification to testify regarding Aulph’s tier classification, since he had not been formally classified until well after he committed the instant offense. Counsel also raised an objection to the letter stating the determination that Aulph was a Tier III class offender was hearsay. Reviewing the hearsay exceptions, the court overruled the objection, finding 114that the contents of the letter were trustworthy and not hearsay.

Hearsay is an oral or written assertion other than one made by the declarant while testifying at trial offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801. Hearsay is inadmissible at trial unless it falls under one of the defined exceptions provided in the Code of Evidence. La. C.E. art. 802. La. C.E. art. 803(8) provides a public records and reports exception to the hearsay rule, including factual findings resulting from an investigation by a public agency made pursuant to authority granted by law.

In this instance, the defendant submitted no argument in support of his assignment. Any assignment of error that is not briefed may be considered abandoned. URCA 2-12.4. We find no error in the court’s ruling, however, and conclude this assignment is without merit.

Regarding Deputy Johnson’s testimony, we conclude that if there was trial error, it was harmless error. The harmless error inquiry is “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); State v. Langston, 43,923 (La.App. 2 Cir. 2/25/09), 3 So.3d 707.

Johnson testified that even though Aulph was not formally classified until after he completed the instant offense, he was treated as a Tier III offender and required to register quarterly. In support of her testimony, the state introduced into evidence Aulph’s sex offender registration form which he completed when he was released on parole. By signing the form, Aulph acknowledged that he was required to register quarterly for life. Therefore, 11 seven without Johnson’s testimony, the state proved beyond a reasonable doubt that Aulph knew he was in violation of the sex offender registration statutes between April 16, 2009, and September 27, 2009. Thus, even if Johnson’s testimony was improper, her statement amounted to harmless error. This assignment is without merit.

In his sixth pro se assignment of error, defendant alleges that the trial court erred by overruling an objection by the defense to Ms. Jeannie Zubigaray’s testimony.

Again, the defendant has provided no legal argument in support of his assignment and may be deemed abandoned. URCA 2-12.4. Nevertheless, Aulph claims that the trial court erred by allowing Ms. Zubigaray’s-testimony concerning the telephone conversation on the grounds that it constituted hearsay and allowed the introduction of other crime’s evidence.

La. C.E. art. 404(B) states, in pertinent part:

(1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

La. C.E. art. 804(8) provides:

A statement which was at the time of its making so far contrary to the declar-ant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable |1fiman in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

The supreme court has recognized an exception to the hearsay rule for statements made against a declarant’s own penal interest. State v. Gilmore, 332 So.2d 789 (La.1976). Third-party testimony concerning such statements is allowed when the declarant himself is unavailable to testify. State v. Hudson, 361 So.2d 858 (La.1978). In order for such statements to be admissible, however, there must be indications that the statements are truly reliable. State v. Rushing, 464 So.2d 268 (La.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986). According to Rushing, supra, the assumption is that a person would not normally admit to the commission of a crime if it were not true. However, unless the statement is truly against the declarant’s penal interest, its reliability is suspect.

We conclude that the court did not err by overruling the defense counsel’s objection to Zubigaray’s testimony. Zubigaray testified that Aulph telephoned her and informed her that he had gotten into trouble and would not be coming home. Under Rushing, supra, such a statement would be against Aulph’s interest because it suggested that he had committed a crime for which he would be arrested if he were caught. Furthermore, the statement does not divulge any specific evidence tending to prove Aulph committed a particular crime. As such, the statement was admissible as it qualifies more as a statement against interest rather than an introduction of evidence of other crimes or bad acts.

| ^Alternatively, even if the statement did introduce evidence of Aulph’s other crimes, the statement is admissible because it tends to show his motive for failing to register. Aulph told his mother that he could not come home because he was in trouble. Thus, the statement establishes Aulph’s motive for absconding supervision and failing to register-beeause he would get in trouble if he came home. Thus, the statement is admissible as it tends to show Aulph’s motive for failing to register and not just his criminal character.

This assignment is without merit.

In his seventh pro se assignment of error, defendant alleges that the trial court erred by persuading the defendant not to testify.

An accused’s right to testify is a fundamental right of constitutional dimension and is protected by the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and by La. Const. Art. I, § 16. State v. Crosby, 43,864 (La.App. 2 Cir. 4/8/09), 6 So.3d 1281; State v. Shaw, 06-2467 (La.11/27/07), 969 So.2d 1233.

According to the supreme court in State v. Dauzart, 1999-3471 (La.10/30/00), 769 So.2d 1206, denial of the accused’s right to testify is not amenable to harmless error analysis. The right is either respected or denied, and its deprivation cannot be harmless.

Our review of the trial transcript indicates that the district court neither convinced Aulph to testify nor dissuaded him from doing so. The district court engaged in a lengthy discussion with Aulph about the potential problems that could arise from his decision to testify. Specifically, the |1Rdistrict court was concerned that Aulph might answer a question in such a way as to open the door for the state to question him about his prior crimes. The court was particularly concerned that the state may be able to question him about the sexual battery crime for which it was believed that Aulph fled to Tennessee.

After informing Aulph of its concerns, the district court held two recesses so that the defendant could discuss the potential issues with his attorney. It was only after meeting with his trial counsel that the defendant decided not to testify. Thus, the record reflects that Aulph’s decision against testifying was made only after thoughtful consideration and discussion with his trial counsel. This assignment of error is without merit.

In his final pro se assignment of error, the defendant alleges that the trial court erred by not following the elements of La.Code. Proc. Ann. Art. 894.1 (the sentencing guidelines) and for changing criminal facts. Aulph claims the trial court changed the facts about his criminal history and did not consider any relative mitigating circumstances when imposing his sentence.

The claim of excessive sentence has already been addressed in assignment of error number one and will not be readdressed. Our review of the trial and sentencing transcript indicates that there is no merit to the claim that the trial court changed the criminal facts of the defendant’s case. As such, this assignment of error is without merit.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE and GARRETT, JJ.

Rehearing denied.

      . 2008 La. Acts No. 816, § 1.


author: AMY, Judge.

text:
    Clayton CHISEM v. YOUNGER ENTERPRISES, LLC, et al.
    No. 13-87.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Russell L. Potter, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellants, Younger Enterprises, LLC, United Fire and Casualty Company.
    Donald J. Armand, Jr., Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Shreveport, LA, for Defendant/Appellant, Clopay Building Products Company, Inc.
    Todd M. Ammons, Stoekwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, LA, for Defendant/Appellee, A Door-Works.
    A. Bruce Perkins, II, Alexandria, LA, for Plaintiff/Appellee, Clayton Chisem.
    Stacy C. Auzenne, Auzenne Law Firm, L.L.C., Alexandria, LA, for Plaintiff/Appel-lee, Clayton Chisem.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

I,The plaintiff alleges that he sustained injury when an industrial garage door stopped suddenly, causing broken glass to fall on him. The plaintiff named numerous defendants in the resulting suit, including the manufacturer and seller of the garage door, the business that installed the door, and the company that performed an inspection of the door after it was installed. The company that performed the inspection filed a motion for summary judgment, alleging that, although its inspection noted a number of repairs that were necessary for the door’s operation, those repairs were never acted upon by the manufacturer/seller, and, therefore, it was not liable for the plaintiffs injuries. The trial court entered summary judgment, dismissing the plaintiffs claims against that defendant. The defendant manufacturer/seller and the defendant installer appeal that judgment. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff in this case, Clayton Chi-sem, was employed by Firestone Complete Auto Care Kings Country in Pineville, Louisiana, in September 2008 when he sustained injury at work. He alleges that the incident occurred as he was attempting to close one of the facility’s rolling garage doors. The door abruptly stopped while he was doing so, causing the door’s glass to shatter and fall onto him. The plaintiff asserts that he sustained serious bodily injury as a result.

The plaintiff filed this matter, naming a number of defendants, including the manufacturer/seller of the subject door, Clopay Building Products Company, Inc. According to the exhibits filed in this matter, Clopay is a seller of doors, but does not install, maintain, or repair the doors. Rather, it relies on installation businesses to do so.

lain this case, the subject door as well as others at the Firestone facility were installed by Younger Enterprises, LLC in 2007. In addition to Clopay, the plaintiff named Younger, and its insurer, United Fire and Casualty Company, as defendants in this matter (collectively referred to as Younger herein).

According to Clopay’s exhibits, -Firestone contacted Clopay three times between the 2007 installation and the plaintiffs September 2008 injury regarding operation of the doors. Clopay’s Customer Service Supervisor, Michelle Romie, explained in her affidavit that it sent a Younger technician to address the first problem in October 2007. Thereafter, in December 2007, Clopay once again received a complaint regarding the inopera-bility of a door at the facility. However, and according to Ms. Romie’s affidavit, Younger advised Clopay that it would not be able to immediately respond. As a result, Clopay contacted a different installation company, A Door-Works, Inc., to respond to the complaint and to determine the origin of the recurring problem.

Joy Abshire, the primary shareholder and operator of A Door-Works, explained in her deposition that her son, Jarred Ab-shire, A Door-Works’ lead installer, performed the initial service call and resolved the cable problem associated with the complaint. Mr. Abshire confirmed in his own deposition that the door causing the problem was not the one now involved in this suit. Ms. Abshire testified that she and her husband subsequently visited the Firestone facility in response to Clopay’s request to provide an estimate to repair the doors. She explained that she reviewed all of the doors, generating a four-page estimate, dated January 20, 2008.

In her deposition, Ms. Abshire described the overall installation as the poorest she had witnessed. Ms. Abshire testified that, in addition to providing RClopay with the description of needed repairs, which she did by fax, she spoke on more than one occasion with a Clopay representative regarding the hazards posed by the poor installation. Clopay contests being advised as such. Despite A Door-Works’ estimate of the necessary repairs, Clopay did not authorize the work suggested by the installer. According to Ms. Abshire, A Door-Works was next contacted by Clopay regarding the Firestone site in mid-September 2008, after the accident now at issue.

After being named as a defendant in the plaintiffs supplemental and amending petition, A Door-Works filed a motion for summary judgment seeking dismissal of the plaintiffs claims in light of its contention that it was only hired by Clopay to inspect the doors and was not authorized to repair the doors. The plaintiff, Clopay and Younger opposed the motion. Following a hearing, the trial court entered summary judgment, dismissing the plaintiffs claims against A Door-Works.

Younger and Clopay have appealed the judgment.

Discussion

In its suit against A Door-Works, the plaintiff alleged that the installer was negligent in a variety of capacities, including failure to repair and to properly inspect the premises. The plaintiff alternatively alleged that A Door-Works was a manufacturer for products liability purposes. This latter claim is not the focus of this appeal as the parties do not assert that A Door-Works played any role in the manufacture of the door in question. Neither does the evidence support such an allegation. Rather, the focus of the motion for summary judgment and the focus of our inquiry here is the plaintiffs claim that A Door-Works was negligent in its role pin the events at issue. See La.Civ.Code art. 2815(A) (“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”). In addition to A Door-Works, the plaintiff in this case named a number of defendants, including the two appellants in this case. Thus, as the plaintiffs own appeal has been dismissed, this review is in the unique context of the oppositions filed by co-defendants.

Undoubtedly, under the dictates of La.Civ.Code art. 2328, more than one party may be at fault for the damages alleged by the plaintiff. In considering liability under La.Civ.Code art. 2315, Louisiana courts utilize a duty-risk analysis. See Fontenot v. Patterson Ins., 09-0669 (La.10/20/09), 23 So.3d 259. Under that analysis, “a plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, that [the] defendant owed a duty to [the] plaintiff which [the] defendant breached and that the risk of harm was within the scope of protection afforded by the duty breached.” Id. at 267 (quoting Campbell v. La. Dep’t of Transp. & Dev., 94-1052, p. 5 (La.1/17/95), 648 So.2d 898-901).

Further, we consider this case in the procedural context of a summary judgment. In this regard, Louisiana Code of Civil Procedure Article 966(B)(2) provides that a trial court shall render summary judgment if “the pleadings, 1 ^depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis added.) In setting forth the burden of proof, La.Code Civ.P. art. 966(C)(2) provides that “[t]he burden of proof remains with the movant.” If, however, the mov-ant will not bear the burden of proof at trial, the movant’s burden is “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. If the adverse party does not, in turn, “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

On review, an appellate court reviews a trial court’s ruling on a motion for summary judgment de novo. La. High Sch. Athletics Ass’n, Inc. v. State, 12-1471 (La.1/29/13), 107 So.3d 583. Having considered the parties’ submissions under this standard, we find no error in the trial court’s granting of A Door-Works’ motion for summary judgment, dismissing the plaintiffs claims against it.

A Door-Works’ submission demonstrated its limited role in this matter. According to Ms. Abshire’s deposition testimony, A Door-Works was contacted by Clopay at the end of 2007 to repair one of the garage doors at Firestone. The technician performing that repair confirmed that the door it repaired was not the one at issue. Within the next month, Ms. Abshire and her husband returned to Firestone to assess the doors and provide insight as to why Clopay was receiving repeated complaints from Firestone. A Door-Works then forwarded a January 20, 2008 estimate of the four-pages of repairs that it proposed. Ms. Abshire confirmed that it did not receive authorization from Clopay to proceed with repairs. A Door-|WorkSfi was next contacted regarding the Firestone doors, almost eight months later, in September 2008, after the accident. Ms. Abshire confirmed that A Door-Works’ contract was with Clopay, not Firestone. In fact, she explained in her deposition that it was typical for her to inform the manager of a business of her purpose at the site, but that she would not typically inform those on the premises of her findings. Rather, she reported her findings to Clopay. When she provided her estimate to Clopay, however, it did not authorize the needed repairs.

In reference to the burden of proof of La.Code Civ.P. art. 966(C)(2), the trial court correctly determined that A Door-Works, as the moving party, adequately pointed out “an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Chiefly, the tenuous relationship between the plaintiff, an employee of Firestone, and A Door-Works, an independent installer sent by Clopay, points out a lack of factual support for the plaintiffs burden of proving that he was owed a duty by A Door-Works. Given the lack of relationship between those two actors and the distance in time between A Door-Works’ inspection and the September 2008 accident, the remaining elements of the duty-risk analysis are implicated as well.

With A Door-Works’ initial burden under Article 966(C)(2) satisfied, the opposing parties were obligated to “produce factual support sufficient to establish that [they would] be able to satisfy [their] evi-dentiary burden of proof at trial[.]” In review of the opposing parties’ submissions, we conclude that they did not produce sufficient evidence in this regard.

Here, we specifically address the appellants’ concerns in this court. As noted above, Ms. Abshire testified that, in addition to the four-page itemized estimate forwarded to Clopay in January 2008, she verbally informed a Clopay | .¡representative of the hazards associated with those deficiencies. However, Clopay suggests that its submission demonstrates genuine issues of material fact in light of the affidavit of its Customer Service Supervisor, Ms. Romie. Therein, Ms. Romie acknowledged receipt of the January 2008 estimate, but denied that the estimate addressed Clopay’s specific concern as to why the Firestone garage “doors were stuck in the down position” and further denied that the “estimate stated or suggested that any of the doors presented any risk or hazard.” To the extent that there is a discrepancy between Ms. Abshire’s recollection of her communication with Clopay and Clopay’s reporting of any such communication, that issue is not a “material fact” in the context of the plaintiffs claim against A Door-Works, the focus of this motion for summary judgment. Instead, the supreme court has explained that:

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits.

Smith v. Our Lady of the Lake Hosp., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751 (citations omitted).

This definition makes it clear that the disputed fact pointed to by Clopay is material only in the context of relationship between A Door-Works and Clopay or in the context of Clopay’s ultimate satisfaction of its own duty to the plaintiff. However, the record does not include an incidental demand filed by Clopay against A Door-Works. Rather, the motion for summary judgment now at issue was brought by A Door-Works to the claim filed by the plaintiff. Clopay’s claim or defense against A Door-Works is not otherwise preserved in the proceedings. In |8this context, the materiality of the disputed fact focused upon by Clopay is not apparent.

On this point, we note that Clopay refers this court to Bell v. Gold Rush Casino, 04-1123 (La.App. 3 Cir. 2/2/05), 893 So.2d 969, for the proposition that issues of comparative fault cannot be adjudicated by summary judgment in the presence of questions of fact regarding notice of a dangerous condition. Clopay suggests that, under the reasoning of Bell, “[ijf A Door[-]Works did observe a hazardous condition but failed to notify Firestone or Clopay of the hazard, A Door[-]Works could be liable, at least in part, for plaintiffs damages.” However, the present case is distinguishable from Bell. Notably, the potential comparative fault discussed in Bell was between the plaintiff and the defendant. As discussed, above, the opponents to the motion for summary judgment did not produce evidence indicating the presence of a duty owed by A Door-Works to the plaintiff. Otherwise, there is no incidental demand in the record which formalizes any claim by Clopay against A Door-Works.

Similarly, we find no merit in Younger’s contention that the trial court erred in granting “summary judgment that A Door-Works was not negligent despite its failure to warn users that the garage doors presented a hazardous condition.” Younger contends that evidence suggests that A Door-Works should have informed Firestone personnel of the hazards associated with the installed doors’ condition at the time of the January 2008 inspection. However, recall that the only evidence introduced established a relationship between A Door-Works and Clopay, not a relationship between A Door-Works and Firestone. Neither did any of the parties in opposition present evidence, testimonial or otherwise, regarding industry standards as to any duty owed by A Door-Works to site employees in this instance. 19Rather, the evidence was simply insufficient in this regard. Further, and as with Clopay, the record does not include an incidental demand formalizing Younger’s defenses and demands against A Door-Works. It merely appeared in opposition to A Door-Works’ motion for summary judgment seeking dismissal of the plaintiffs claim against it.

For these reasons, we find that the trial court appropriately entered summary judgment, dismissing the plaintiffs claims against A Door-Works.

DECREE

For the foregoing reasons, the summary judgment entered by the trial court is affirmed. All costs of this appeal are assigned equally to the appellant, Clopay Building Products Company, Inc., and to appellants, Younger Enterprises, LLC and United Fire and Casualty Company, Inc.

AFFIRMED.

      . The plaintiff also appealed. However, that appeal was later dismissed.

      . Louisiana Civil Code Article 2323(A) provides:
      In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

      . As addressed above, La.Civ.Code art. 2323 anticipates that multiple actors may be found to be at fault. However, it merits observation that La.Code Civ.P. art. 966(F) provides:
      F. (1) When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or non-party is not negligent, not at fault, or did not cause, whether in whole or in part, the injury or harm alleged, that party or nonparty shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or nonparty nor shall the issue be submitted to the jury nor included on the jury verdict form. This Paragraph shall not apply when a summary judgment is granted solely on the basis of the successful assertion of an affirmative defense in accordance with Article 1005, except for negligence or fault.
      (2) If the provisions of this Paragraph are applicable to the summary judgment, the court shall so specify in the judgment. If the court fails to specify that the provisions of this Paragraph are applicable, then the provisions of this Paragraph shall not apply to the judgment.


author: THIBODEAUX, Chief Judge.

text:
    Demetria MOUTON v. LAFAYETTE PHYSICAL REHABILITATION HOSPITAL, et al.
    No. 13-103.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Charles M. Jarrell, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, for Defendants/Appellees, Lafayette Physical Rehabilitation Hospital and LEMIC Insurance Co.
    Gloria A. Angus, Angus Law Firm, LLC, Opelousas, LA, for Plaintiff/Appellant, Demetria Mouton.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

| plaintiff, Demetria Mouton, filed this suit in the Office of Workers’ Compensation against her employer, Lafayette Physical Rehabilitation Hospital, and Lafayette Physical’s workers’ compensation insurer, LEMIC Insurance Company (collectively, Defendants), alleging several miscalculations involving her workers’ compensation payments. These allegations were resolved prior to trial. Defendants answered the suit, and alleged that they were entitled to an offset of $988.00 a month for long-term disability (LTD) insurance payments Ms. Mouton was eligible to receive from her disability insurer. The Workers’ Compensation Judge (WCJ) found in favor of Defendants and granted them the full offset. Ms. Mouton appeals that judgment. For the following reasons, we reverse and render a new judgment based on an offset in the amount Ms. Mouton is actually receiving from LTD.

I.

ISSUE

We will consider whether the WCJ erroneously granted Defendants an offset of $988.00 for LTD payments Ms. Mouton was entitled to receive.

II.

FACTS AND PROCEDURAL HISTORY

Ms. Mouton sustained an injury while in the course and scope of her employment with Lafayette Physical. As a result of her injuries, Ms. Mouton is entitled to receive $1,010.06 per month in workers’ compensation, $988.00 per month in LTD insurance, and $1,423.00 per month in Social Security Disability |2(SSP) benefits. LEMIC is Lafayette Physical’s workers’ compensation insurer, and Lincoln Financial Group provided Ms. Mouton with her LTD insurance, which Lafayette Physical fully funded.

Pursuant to the LTD insurance contract, Lincoln took an offset from Ms. Mouton’s workers’ compensation payments, resulting in a reduction of her monthly payment to the minimum allowed by the contract, $50.00. To avoid a dispute with Defendants, however, Lincoln switched the source of its offset to Ms. Mouton’s SSD payments, an offset also provided by the contract, and which also resulted in a reduction of her monthly payments to $50.00. After Ms. Mouton filed suit to resolve other matters relating to her workers’ compensation benefits, Defendants asserted that, under La.R.S. 23:1225, they are entitled to a $988.00 offset per month, the amount Ms. Mouton is entitled to receive from Lincoln, even though Lincoln only pays her $50.00 a month. The WCJ found in favor of Defendants and allowed them to take the full offset. Ms. Mouton appeals that judgment.

III.

LAW AND DISCUSSION

Standard of Review

Statutory interpretation is a question of law. We review questions of law de novo without deference to the lower court’s decision. Louisiana Municipal Assoc. v. State, 04-227 (La.1/19/05), 893 So.2d 809. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written,” without further interpretation into the legislative intent. Id. at 837. Further, each word in a statute is presumed to be effective and | c.serve a useful purpose; therefore, we will give effect to all parts of a statute, understood as a whole. Broussard v. Lafayette Parish Sch. Bd., 08-666 (La.App. 3 Cir. 12/10/08), 998 So.2d 1253, writ denied, 09-471 (La.4/17/09), 6 So.3d 794.

Discussion

Defendants allege that they should receive an offset for the full amount of LTD benefits for which Ms. Mouton is eligible, regardless of the amount she actually collects. We disagree. Louisiana Revised Statutes 23:1225(0) states, in part, that:

C. (1) If an employee receives remuneration from:
(a) Benefits under the Louisiana Workers’ Compensation Law.
(c) Benefits under disability benefit plans in the proportion funded by an employer.
(d) Amy other workers’ compensation benefits,
then compensation benefits under this Chapter shall be reduced ... so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.
(3) If an employee is receiving both workers’ compensation benefits and disability benefits subject to a plan providing for reduction of disability benefits, the reduction of workers’ compensation benefits required by Paragraph (1) of this Subsection shall be made by taking into account the full amount of employer funded disability benefits, pursuant to plan provisions, before any reduction of disability benefits are made.

^Section 1225 is a wage-loss benefit coordination statute. Al Johnson Const. Co. v. Pitre, 98-2564 (La.5/18/99), 734 So.2d 623. Benefit coordination laws serve a dual purpose in the system of wage-loss protection; namely, these laws assure an employee receives some type of recovery for lost wages, while precluding her from receiving duplicative benefits that exceed her actual pre-injury wages. Id. The statute calls for the reduction of workers’ compensation benefits when the employee receives remuneration from an employer-funded disability plan. Here, Ms. Mouton is receiving benefits from an employer-funded LTD plan; however, she is receiving significantly less than she is entitled to because her disability insurer, pursuant to plan provisions, has taken an SSD offset.

Defendants contend that Section (C)(3) of the statute calls for a reduction of the full amount of employer-funded disability benefits, even though Lincoln is not currently paying the full amount. We believe Defendants are misreading the statute. Section (C)(1) states that if an employee receives remuneration from workers’ compensation and disability, then disability can be offset. Section (C)(3) calls for an offset of the full amount of disability benefits the employee receives (per section (C)(1)) pursuant to disability plan provisions. Section (C)(3)’s reference to “the full amount of employer funded disability benefits” is unavailing to the Defendants. When read as a whole, the statute contemplates an offset for the full amount that the employee receives from her LTD insurer. Our interpretation of the statute is consistent with the objective of benefit coordination laws, which are designed to ensure the employee receives certain wage-loss protection. Were we to grant Defendants the full offset, when Ms. Mouton is not collecting that amount, she would receive $22.06 per month in workers’ compensation benefits and $50.00 per month in disability benefits, | ¿thereby reducing her total benefits to a mere fraction of her pre-injury wages. This would defeat the statute’s objective and militate against receipt of deserved benefits.

We further conclude that Section (C)(3) envisions a situation in which the disability insurer and workers’ compensation insurer want to take competing offsets from each other. Defendants assert that because Section (C)(3) states that the workers’ compensation insurer is entitled to the offset before the disability insurer, this means that Defendants are entitled to the full amount of the disability insurance payments. In this case, however, Lincoln and Defendants are not fighting for the same offset; Lincoln has taken an offset from Social Security, and Defendants want an offset from Lincoln. Section (C)(3) does not address this type of tripartite situation.

Defendants’ reliance on Nesom v. Brown and Root, U.S.A., Inc., 987 F.2d 1188 (5th Cir.1993), as outcome determinative in their favor is misplaced. At the outset, we note that this is a federal decision interpreting an insurance contract, not Louisiana law. As such, we are not bound by its holding. Nevertheless, since Defendants rely so heavily on the decision, we will distinguish it. In that case, the plaintiff, Nesom, claimed both workers’ compensation benefits from Brown & Root (B & R), his employer, and disability benefits from UNUM Life Insurance Company of America (UNUM) under a partially employer-funded plan. While the employer initially disputed that Nesom’s injuries were work-related, and refused to pay his workers’ compensation payments, UNUM admitted liability and began to pay Nesom under his disability policy. The state court found in Nesom’s favor that his injuries were work-related, and applied Section 1225 to allow B & R to take an offset from UNUM’s payments. After this, UNUM reduced | fits monthly payments to Nesom in accordance with the provisions of the disability policy allowing an offset for workers’ compensation. In essence, therefore, both UNUM and B & R took simultaneous offsets from the amount the other was required to pay. The court in that case determined that the disability policy “envisions that once the amount of workers’ compensation is determined under state law, that amount will be setoff under the policy.” Id. at 1193. Thus, UNUM was allowed to set off only the amount B & R actually paid Nesom.

We distinguish Nesom from the instant case in several respects. First, the court in Nesom interpreted a disability insurance contract; Section 1225 was not at issue in that case. Further, the disability insurer and the employer/workers’ compensation insurer were trying to take offsets from each other; SSD payments were not involved. Also, both the disability insurer and the employer/workers’ compensation insurer were made parties to the case. Here, Lincoln is not a party and thus, we are not at liberty to determine what amount Lincoln is entitled to take as an offset under the LTD policy. Finally, Defendants’ reliance on' Nesom is misplaced because the court clearly stated that the disability insurer could only take an offset of the actual amount the plaintiff received under workers’ compensation. The disability insurer was not allowed to take an offset for the amount Nesom was entitled to receive under workers’ compensation. This holding directly contradicts Defendants’ contention that we should allow the full offset, and in fact and law support Ms. Mouton’s position.

Although we can find no case law mirroring the precise situation presented here, in cases concerning offsets in general, the offset amount is the |7amount the employee actually receives. See, e.g. Smalley v. Integrity, Inc., 31,247 (La.App. 2 Cir. 12/9/98), 722 So.2d 332; Holden v. Int’l Paper Co., 31,104 (La.App. 2 Cir. 10/28/98), 720 So.2d 442. Further, the Louisiana Supreme Court has held that “workers’ compensation benefits received by an employee can only be reduced when the aggregate remuneration from the listed benefit sources in Section 1225(C)(1) exceeds 66 2/3 percent of the average weekly wage.” Jones v. General Motors Corp., 03-1766, p. 14 (La.4/30/04), 871 So.2d 1109, 118-19. If we allow Defendants to take an offset for the full amount of disability benefits to which Ms. Mouton is eligible, her monthly benefits would be far below 66 2/3 percent of her average weekly wage.

We are aware that after our decision, Ms. Mouton will be making more than her pre-injury wages when SSD, workers compensation, and LTD are all taken into account. Our Supreme Court has held, however, that the phrase “benefits under disability benefit plans” found in Section 1225(C) does not include SSD benefits. Pitre, 734 So.2d 623. In Al Johnson Construction Co. v. Pitre, the court reconsidered its prior holding in Garrett v. Seventh Ward Gen. Hosp., 95-17 (La.9/22/95), 660 So.2d 841, wherein it held that SSD benefits were included in Section 1225’s phrasing because of the statute’s purpose: preventing an injured employee from receiving double recovery. The court realized in Pitre, however, that Garrett was wrongly decided because such double recovery is precluded by federal law. The Social Security Act, 42 U.S.C. § 424a, requires that SSD benefits be reduced when the combined benefits from SSD and workers’ compensation amount to more than eighty percent of the injured employee’s prior earnings. Id. Because the Louisiana Legislature specifically provided for an offset for SSD benefits in the case of permanent total disability in Section 1225(A), and took no ^similar steps to include SSD benefits in Section 1225(C), the court determined that it had erred in divining that the legislature intended Section 1225(C) to include SSD benefits. SSD benefits are, therefore, not included in the calculation pursuant to Section 1225(C).

We hold that Section 1225 entitles Defendants to an offset equal to the amount Ms. Mouton is currently receiving in LTD benefits from Lincoln. Defendants, therefore, may take an offset in the amount of $50.00 per month. According to the record, Ms. Mouton is entitled to $233.09 per week in workers’ compensation benefits. As a monthly figure, her workers’ compensation benefits amount to $1,010.06 a month. After subtracting the $50.00 a month Lincoln pays Ms. Mouton under her disability policy, Defendants Lafayette Physical and LEMIC are hereby required to pay Ms. Mouton $960.06 a month, or $221.55 a week.

IV.

CONCLUSION

For the reasons above, we reverse the Office of Workers’ Compensation judgment and render a new judgment ordering Defendants, Lafayette Physical Rehabilitation Hospital and LEMIC Insurance Co., to pay Demetria Mouton $960.06 a month in workers’ compensation benefits.

REVERSED AND RENDERED.

      . Section (C)(3) was enacted after Nesom and attempts to clarify the appropriate disposition in a case analogous to Nesom.

      . Ms. Mouton's current workers’ compensation payment amount comes from both parties' pretrial statements.

      . We multiplied Ms. Mouton’s weekly payments, $233.09, by fifty-two weeks in a year, and then divided that number by twelve months to arrive at the monthly figure of $1,010.06.

      .We multiplied Ms. Mouton's monthly workers' compensation payment, $960.06, by twelve months in a year, and then divided that number by fifty-two weeks to arrive at the weekly figure of $221.55.


author: KEATY, Judge.

text:
    Dianne DENLEY, et al. v. Sherri B. BERLIN, et al.
    No. 13-149.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Dianne Hill, Attorney at Law, Monroe, LA, for Plaintiff/Appellant, Dianne Denley.
    Thomas A. Bordelon, Attorney at Law, Shreveport, LA, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.
    Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| iDianne Denley (Denley), who filed suit on behalf of her minor child, Andrea Stewart (Stewart) (sometimes collectively referred to as Plaintiff), appeals a judgment rendered by the trial court in favor of State Farm Mutual Automobile Insurance Company (State Farm), finding that Stewart was not injured in an automobile accident. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit was filed by Denley in Cad-do Parish on behalf of her minor child, Stewart, for injuries allegedly suffered in a motor vehicle accident which occurred in Shreveport on December 7, 2008. Stewart, who was fifteen years old at the time of the accident, was a passenger in a vehicle driven by one of her high school friends, Virginia Pullen (Pullen). Their vehicle was struck from behind by a vehicle, which was insured by Shelter Mutual Insurance Company (Shelter) and driven by Sherri Berlin (Berlin). Plaintiff filed suit against Berlin and Shelter as well as Pullen and her insurance company, Safeway Insurance Company of Louisiana (Safeway). Pullen and Safeway were ultimately dismissed via motion for summary judgment based on lack of liability. Subsequently, Shelter paid its $25,000 policy limits in exchange for the release of Shelter and its insured. At the time, Plaintiff had a liability insurance policy through State Farm, which also paid her $10,000 in medical payments. Plaintiff, therefore, has received $35,000 in total payments. The only remaining Defendant at the time of trial was State Farm in its capacity as the uninsured motorist carrier for Plaintiff. State Farm’s policy provided uninsured motorist coverage in the amount of $100,000. The payment of ^Shelter’s $25,000 policy limits, State Farm’s $10,000 medical payments coverage, and liability were stipulated to by the parties at trial.

The case went to trial on April 4, 2012. Finding that the testimonies of Stewart and Denley were not credible and that their testimonies were inconsistent and/or contradicted by other evidence, the trial court found in favor of State Farm, dismissing Plaintiffs claims at her cost.

Plaintiff is now before this court asserting that it was error to find that there was no evidence that Stewart was injured in the automobile accident of December 7, 2008, and that the witness fee award was excessive.

DISCUSSION

I. Causation

After trial on the merits, the trial court ruled that it “was unable to say more likely than not” that Stewart had any injuries in the accident. This conclusion was based upon a finding that Stewart and Denley were “somewhat deceptive” and lacked credibility. Plaintiff contends that the trial court’s finding that Stewart incurred no injuries in the automobile accident is not supported by the record and is manifestly erroneous. Plaintiff contends that the trial court’s credibility determinations, particularly with regard to the testimonies of Dr. Milan Mody (Dr. Mody), Pullen, and Stewart, as well as the trial court’s disregard of the medical records and billing statements, are so unreasonable in light of the entire record that they warrant reversal.

In opposition, State Farm contends that Plaintiff did not provide sufficient objective proof that Stewart suffered injury or that medical expenses incurred were necessary and/or related to this minor accident. State Farm contends that Plaintiff failed to prove that her case was worth in excess of $35,000 and that the judgment |sof the trial court should be affirmed. State Farm alleges that both the objective evidence and the testimonies by witnesses presented at trial are inconsistent with Plaintiffs claims of injury after a minor rear-end accident. State Farm also claims that Stewart was not truthful about any injuries she may have suffered and that the trial court found her and Denley to lack credibility.

In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted), the supreme court discussed the pertinent standard of review with respect to the instant case:

It is well settled that a court of appeal may not set aside a, trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and 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 reasonable. The appellate review of fact is not - completed by reading only so much of the record as will reveal a reasonable factual basis for the findings in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.
When findings are based on determinations regarding the credibility of witnesses, - the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bears so heavily on the listener’s understanding and belief in what is said.

Additionally, the supreme court in Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759, noted:

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. American Motorist Insurance Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Aucoin v. State Farm Mut. Auto. Ins. Co., 505 So.2d 993 (La.App. 3d Cir.1987); Richard v. Walgreen’s Louisiana Co., 476 So.2d 1150 (La.App. 3d Cir.1985). Plaintiff must prove causation by a preponderance of the evidence. Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989). The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Mart v. Hill, 505 So.2d 1120 (La.1987); Villavaso v. State Farm Mut. Auto. Ins. Co., 424 So.2d 536 (La.App. 4th Cir.1982).

In the present case, Plaintiff had the burden of proving both that Stewart was injured in this accident and that the medical expenses for which Plaintiff was seeking recovery were related to the motor vehicle accident. Based upon our review of the trial transcript, the evidence presented at trial fell short of reaching this burden. Plaintiff called only one treating physician to testify regarding the alleged injuries suffered as a result of this accident. This witness, Dr. Mody, only saw Stewart a few times after the accident. Most of the treatment that Plaintiff claimed was incurred as a result of this accident was provided for by other providers, including Dr. Lynne Holladay, The Orthopedic Clinic, Cornerstone Rehabilitation, and Dr. Richard Barton. None of these providers were called as witnesses to testify as to the treatment or diagnoses they may have rendered as a result of Stewart’s alleged injuries. Additionally, none of these medical records, including those of Dr. Mody, were placed into evidence by Plaintiff. Plaintiff, therefore, did not provide a causative link between the motor vehicle accident and the medical treatment and expenses for which she claims reimbursement.

In addition to the lack of objective evidence to support her case, Stewart’s self-serving testimony was either not supported by objective evidence or was contradicted by other witnesses. For example, Stewart testified that the impact caused her to hit her head on the dashboard and her right knee on the glove box. This was contradicted both by the objective evidence and the testimony of Pullen. IsStewart testified that she was wearing a seatbelt with a shoulder harness at the time of the accident. The trial court noted in its oral reasons for judgment that it was “counterintuitive” for a belted passenger to strike the dashboard in a minor rear-end accident. Pullen testified that the impact was very minor. Pullen also claimed that she did not see or hear Stewart hit her head or knee on any objects inside the car and that Stewart never told Pullen that she hit her knee or her head on the dashboard. Stewart never complained of pain to Pullen at the time of the accident. Stewart also denied having pain immediately after the accident. The lack of complaints of pain was noted by the trial court, which recognized that injuries such as those described by Stewart would cause immediate pain or symptoms.

The trial transcript further indicates that Pullen testified that, after the accident, she and Stewart went to Denley’s house. At that time, Denley asked if there was a ticket number or docket number “so she could do something.” During that same conversation, Pullen testified that Denley mentioned that she wanted the police report because she could sue.

Stewart testified that as a result of her injuries, she was unable to play soccer that season or tennis for the rest of the year. Both Pullen and Denley, however, testified that Stewart did play varsity soccer. Pul-len testified that she saw Stewart playing soccer later that season at Sport Port in Shreveport and that she played varsity soccer that spring. Denley also testified that Stewart continued playing soccer after the accident although she could only play the first game and would have to sit out the second game. Additionally, Pullen testified that Stewart played tennis and was a cheerleader post-accident.

Stewart’s ability to play varsity sports is inconsistent with the injuries she claims to have suffered in the accident, and her testimony that she did not play |fithese sports seriously undermines her credibility. Stewart’s credibility is important because the only testimony that sought to prove that she was injured was her own testimony. Dr. Mody, responding to a question by the trial court, admitted that there were no objective findings of injury. In fact, Stewart’s complaints were so inconsistent with any objective findings that Dr. Mody ordered a CT of her abdomen because the objective testing “could not explain all her continued pain.” The only diagnosis he could come up with was a lumbar strain. He testified that there was no permanent injury, and he would not expect any flare ups in the future. This testimony, the only disinterested medical testimony or evidence in the record, suggests that much of the medical treatment and expenses incurred by Stewart were unnecessary.

Accordingly, the trial court was not manifestly erroneous in concluding that Stewart did not suffer any injuries in the accident.

II. Expert Witness Fee

Plaintiff called Dr. Mody as an expert witness. Plaintiff contends that Dr. Mody appeared for trial with no wait time. His testimony allegedly lasted less than twenty minutes. When asked his fee for testifying, Dr. Mody stated that his fee is set by his clinic at $7,500 a day in Caddo Parish. Despite Dr. Mody’s requested fee for testifying, the court ultimately reduced his fee to $2,500. Plaintiff contends that the trial court’s reduced fee is exorbitant considering the time and nature of his testimony. Plaintiff suggests that a maximum award of a $500 fee is sufficient for Dr. Mody’s testimony.

The trial judge has great discretion in fixing and awarding costs and expert witness fees. Broussard v. Martin Operating P’ship, 11-1559 (La.App. 3 Cir. 11/21/12), 103 So.3d 713, writs denied, 13-215, 13-249 (La.3/15/13), 109 So.3d 383. Accordingly, we find no error in the trial court’s award of $2,500 in expert witness fees.

DECREE

The judgment rendered by the trial court in favor of State Farm Mutual Automobile Insurance Company is affirmed. All costs of this appeal are assessed against Dianne Denley, on behalf of her minor child, Andrea Stewart.

AFFIRMED.

      . The Louisiana Supreme Court transferred this case to the Third Circuit Court of Appeal for consideration after all of the judges of the Second Circuit Court of Appeal were recused.