author: CRAIN, J. Welch, J.,

text:
    Mark W. ST. CYR v. Johnelle B. ST. CYR
    NO. 2016 CA 0896
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 21, 2017

      Leslie N. Bankston, A. Casey Desselles, Albany, Louisiana, Attorneys for Defendant/Appellant, Johnelle B. St. Cyr
    Brian K. Abels, Denham Springs, Louisiana, Attorney for Plaintiff/Appellee, MarkW. St. Cyr
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

12Johnelle B. St. Cyr appeals a judgment that sustained an exception of no right of action urged by her ex-husband, and dismissed her claim for child support. Mark W. St. Cyr has answered the appeal seeking frivolous appeal damages. We reverse the judgment and deny the answer to the appeal.

FACTS

Johnelle and Mark divorced in 2006. They were awarded joint custody of their three-year-old son, and Mark was ordered to pay $525.00 per month in child support. Less than a year later, Mark and Johnelle stipulated that pursuant to an act of surrender executed by Mark, Mark would receive no visitation with his child and would pay no child support. A judgment reflecting those stipulations was signed on July 16, 2007.

In 2015, Johnelle filed a rule to set child support alleging that she and the child were in necessitous circumstances. On the date set for the hearing, Mark filed an exception of no right of action asserting that the 2007 judgment barred Johnelle’s claim for child support. Johnelle countered that the 2007 judgment relieving Mark of any child support obligation was absolutely null. The trial court sustained the exception and dismissed Johnelle’s claim.

DISCUSSION

The function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted. Eagle Pipe and Supply, Inc. v. Amerada Hess Corporation, 10-2267 (La. 10/25/11), 79 So.3d 246, 255. The exception assumes that the cause of action asserted is valid and tests whether the plaintiff has an interest in judicially enforcing it. The question is simply whether the plaintiff has a right to sue the defendant to enforce the claim. JP Morgan Chase Bank, N.A. v. Boohaker, 14-0594 (La.App. 1 Cir. 11/20/14), 168 So.3d 421, 426.

IsThe party raising the exception of no right of action bears the burden of proof. Evidence supporting or controverting an exception of no right of action is admissible; however, in the absence of evidence to the contrary, the averments of fact in the pleadings will be taken as true. JP Morgan Chase Bank, N.A., 168 So.3d at 426. Whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal. Eagle Pipe and Supply, Inc., 79 So.3d at 256.

In support of his exception of no right of action, Mark offered as evidence the 2007 judgment, which relieves him of any child support obligation, and the act of surrender, which purports to terminate all of his parental rights. In opposition, Johnelle argued that both the 2007 judgment and the act of surrender are absolutely null.

Johnelle contends that the provision in the stipulated judgment that permanently relieves Mark of his child support obligation contravenes the laws of this state, rendering the judgment absolutely null. A stipulated judgment is a bilateral contract and may be absolutely null if it contains a provision that is contra bonos mores (against public policy). See La. Civ. Code arts. 2030 and 3082; In re Matter of J.E.T., 16-0384 (La.App. 1 Cir. 10/31/16), 211 So.3d 575, 581, 2016 WL 6427701. While parents may mutually agree to modify a child support judgment, to be enforceable such an agreement must be in the child’s best interest and must not interrupt the child’s maintenance and upbringing. Macaluso v. Macaluso, 509 So.2d 201, 202 (La. App. 1 Cir. 1987). The public policy behind a parent’s duty of support is to ensure, both for the sake of the child and the sake of the general public that might otherwise have to provide his support, that each child receives support sufficient for his maintenance and upbringing. Macaluso, 509 So.2d at 202.

A parent’s legal duty to provide support to his minor children cannot be permanently renounced or suspended. Dubroc v. Dubroc, 388 So.2d 377, 480 (La. 1980); Johnson v. Johnson, 14-0564 (La. App. 1 Cir. 12/23/14), 168 So.3d 641, 645. A judgment that permanently relieves a parent of his obligation to support his minor children contravenes the public policy of the state of Louisiana and is absolutely null. Cf. Walder v. Walder, 159 La. 231, 236, 105 So. 300, 302 (1925); Hebert v. Hebert, 96-2155 (La.App. 1 Cir. 9/19/97), 700 So.2d 958, 960-61; Macaluso, 509 So.2d at 202-03.

In M.P.W. v. L.P.W., 13-0366 (La.App. 1 Cir. 11/1/13), 136 So.3d 37, this court considered the validity of a stipulated judgment that appeared to permanently relieve a father of his child support obligation. The stipulation was made in conjunction with another agreement requiring the father to promptly execute an act of surrender of his parental rights so as to free his children for adoption. This court determined that the agreement did not violate public policy, reasoning that the execution of the act of surrender, coupled with the actual adoption of the child, effectively terminated the parental rights and obligations of the surrendering parent, including the surrendering parent’s obligation to support the child, with the adopting parent becoming the parent of the child for all purposes. M.P.W., 136 So.3d at 48 (citing La. Civ. Code arts. 199 and 227; and La. Ch. Code arts. 1101, 1123, and 1193).

In contrast to the facts established in M.P.W., the record in the case sub judice contains no evidence that the child has actually been adopted. We interpret M.P.W. to require that the act of surrender and permanent waiver of the child support obligation be coupled with an actual adoption, which legally transfers the obligation to support the child to the adoptive parent. Otherwise, the permanent waiver of the child support obligation is absolutely null.

As the party raising the exception, it was Mark’s burden of proving that Joh-nelle has no right of action to proceed with her child support claim. JP Morgan Chase Bank, N.A., 168 So. 3d at 426. The 2007 judgment and act of surrender, without any evidence of an actual adoption, is insufficient to sustain that burden.

CONCLUSION

The trial court’s judgment sustaining the exception of no right of action and dismissing Johnelle’s claim for child support is reversed and this matter is remanded for further proceedings. The answer to the appeal seeking frivolous appeal damages is denied. All costs of this appeal are assessed to Mark W. St. Cyr.

REVERSED AND REMANDED; ANSWER TO APPEAL DENIED.

Welch, J., concurs and assign reasons.

Holdridge, J., concurs.

Welch, J.,

concurs.

|tI concur with the result reached in this matter. While I agree that the trial court’s judgment should be reversed and the matter remanded for further proceedings, I disagree with the opinion’s interpretation and application of M.P.W. v. L.P.W., 2013-0366 (La.App. 1 Cir. 11/1/13), 136 So.3d 37. In M.P.W., the issue was whether the agreement itself was against public policy—the agreement was that the mother would relinquish her claim to child support, that the father would be permanently relieved of his obligation to support his children, that his custodial and visitation rights would be terminated, and that the father would execute a voluntary act of surrender of his parental rights to the children so as to free them for adoption. When the agreement was entered into, it was either absolutely null for a vice of substance (against public policy) or it was not. When the agreement was entered into, there was no pending adoption and the father never executed the surrender and the subsequent adoption of the child was accomplished on other grounds, as detailed in In re B.L.M., 2013-0448 (La. App. 1 Cir. 11/1/13), 136 So.3d 5. Under the opinion’s interpretation and application of M.P.W. in this case, there must be an actual adoption in order for the agreement to be valid or not be against public policy; however, I do not think that a subsequent act, ie. an actual adoption, can serve to ratify the agreement or make the agreement not against public policy—it was either absolutely null when it was entered into or it was not.

l2In my opinion, the holding of M.P.W., 136 So.2d at 48, was that the agreement itself wherein the mother relinquished her claim for child support against the father, “together with the agreement that [the father] would execute a voluntary surrender of his parental rights so that the children could be adopted” did not violate the public policy of the state because the adopting parent would be assuming the legal obligation to financially support the children. (Emphasis mine). In other words, the agreement for a permanent waiver of child support coupled with an act of surrender wherein an adoption is clearly intended or contemplated is what made the agreement not against public policy. In this case, neither the agreement itself nor the evidence offered in support of the exception of no right of action establishes that the agreement was entered into with an intent for the children to be adopted thereafter. Therefore, the trial court’s judgment should be reversed and the matter remanded.

Thus, I respectfully concur.

      . Our decision is limited to the determination that on the record before us, Mark has failed to sustain his burden of proof on the exception. We do not make any final determination regarding the validity of the 2007 judgment as the record on appeal does not contain evidence as to whether the child has been adopted. The attorneys have made representations regarding that fact; however, arguments and assertions made in appellate briefs are not part of the record on appeal and are not evidence. Tessier v. Pratt, 08-1268 (La.App. 1 Cir. 2/13/09), 7 So.3d 768, 774 n.2. The parties have represented that after this appeal was taken, Johnelle filed pleadings seeking to have the 2007 judgment declared absolutely null and that the trial court is holding its decision in abeyance pending our decision on appeal. Thus, the 2007 judgment's validity can be determined on remand.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Ronald Lee STUTES, et ux. v. GREENWOOD MOTOR LINES, INC., et al.
    CA 17-53
    Court of Appeal of Louisiana, Third Circuit.
    03/08/2017

      Ernest Paul Gieger, Jr., Rachel G. We-bre, Emily E. Eagan, Gieger, Laborde & Laperousse, L.L.C., 701 Poydras Street, # 4800, New Orleans, LA 70139, (504) 561-0400, COUNSEL FOR DEFENDANT/APPELLANT: Lexington Insurance Co.
    James Marshall Montgomery, Attorney at Law, 802 Johnston St., Lafayette, LA 70501, (337) 269-0083, COUNSEL FOR PLAINTIFFS/APPELLEES: Ronald Lee States, Carroll Lynn States
    John Barney Davis, II, Baker, Donelson, Bearman, PC, 450 Laurel Street, 20th Floor, Baton Rouge, LA 70801, (225) 381-7000, COUNSEL FOR DEFENDANTS/APPELLEES: Gerald James Pi-tre, Jr., R & L Transfer, Inc., R & L Carriers Shared Services, LLC, R & L Carriers, Inc., Greenwood Motor Lines, Inc.
    Laura Lee Putnam, Assistant Attorney General, 556 Jefferson St., 4th Floor, Lafayette, LA 70501, (337) 262-1700, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Department of Transportation & Development
    Virginia Yoder Dodd, Kevin W. Welsh, Phelps Dunbar, LLP, Post Office Box 4412, Baton Rouge, LA 70821^1412, (225) 346-0285, COUNSEL FOR DEFENDANT/APPELLANT: American Guarantee and Liability Insurance Company
    Blake R. David, Broussard & David, LLC, Post Office Box 3524, Lafayette, LA 70502-3524, (337) 233-2323, COUNSEL FOR PLAINTIFFS/APPELLEES: Carroll Lynn States, Ronald Lee States
    Court composed of Marc T. Amy, Phyllis M. Keaty, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   AMY, Judge.

h This court issued a rule for the Defendants-Appellants, Lexington Insurance Company and American Guarantee and Liability Insurance Company, to show cause why their appeals should not be dismissed for having been taken from a judgment lacking proper decretal language. For the reasons assigned, we dismiss the appeals and remand this matter to the trial court for further proceedings in accordance with this court’s ruling.

The instant litigation arises from a vehicular accident. According to the Plaintiffs petition, Defendant, Gerald James Pi-tre, Jr., failed to yield right of way to the Plaintiff, striking Plaintiffs vehicle and causing the injuries for which this suit was filed. During the course of this litigation, the State of Louisiana, through the Department of Transportation and Development (DOTD), filed a motion for summary-judgment seeking a judgment dismissing it from this suit. In addition, Plaintiff filed a motion for summary judgment and alternative motion in limine seeking a judgment that no percentage of fault can be ascribed to the DOTD in this accident.

Following hearings on these motions, the trial court entered two separate judgments on two separate days. In the judgment signed on September 27, 2016, the trial court ruled as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the defendant, the State of Louisiana, through the Department of Transportation and Development (“DOTD”), is hereby granted summary judgment, and the claims asserted against it in the above captioned matter are hereby dismissed with prejudice at the cost of the parties opposed to the motion.

^However, in the judgment signed by the trial court on October 11, 2016, the trial court’s ruling, in pertinent part, reads, “Motion for Summary Judgment on DOTD liability filed by Plaintiff: Granted.”

The Appellants filed separate motions to appeal the separate judgments. The appeals from the judgment of September 27, 2016, were lodged in this court under docket number CA17-52. The appeals from the judgment of October 11, 2016, bear this court’s docket number CA17-53. Upon the lodging of the record in the latter appeals, this court issued the rule to show cause which is under consideration herein.

Both Appellants filed briefs in which they contend that the trial court’s judgment of October 11, 2016, does have proper decretal language. As an alternative, the Appellants ask that this court remand the appeals for the trial court to enter a judgment which does contain proper decretal language.

In addition to the requirements that a judgment be precise, definite, and certain, “a judgment cannot require reference to extrinsic documents or pleadings in order to discern the court’s ruling.” Thomas v. Lafayette Parish Sch. Sys., 13-91, p. 2 (La.App. 3 Cir. 3/6/13), 128 So.3d 1055, 1056. See State v. White, 05-718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144. We find that reference must be made to additional documents in order to discern what relief was granted to the Plaintiff in the judgment of October 11, 2016.

A review of the Plaintiffs motion for summary judgment reveals that the Plaintiff sought a declaration from the trial court that no liability could be ascribed to the DOTD in the cause of the subject accident. However, the judgment merely states that the Plaintiffs motion regarding the liability of the DOTD was being lagranted with nothing further. We find that this judgment is ambiguous and lacks proper decretal language.

The Appellants point out, though, that in this case, the trial court also rendered judgment on September 27, which clearly dismisses the DOTD from the litigation. Therefore, the Appellants contend that this court should not dismiss the appeals from the October 11 judgment. We find that the Appellants’ contention on this point goes beyond the issue presented on this court’s rule to show cause. We note that the logical interpretation of the Appellants’ argument in this regard would appear to indicate that the trial court’s October 11 judgment was rendered moot since the DOTD had already been dismissed from this litigation by the September 27 judgment. However, as stated above, the judgment of October 11 is ambiguous; therefore, its true meaning cannot be discerned by this court at this time. Accordingly, this court remands this matter to the trial court for further proceedings in accordance with this court’s ruling.

APPPEALS DISMISSED AND REMANDED.


author: PICKETT, Judge.

text:
    Dwight MINTON, et ux. v. GEICO CASUALTY COMPANY, et al.
    16-592
    16-917
    Court of Appeal of Louisiana, Third Circuit.
    03/08/2017

      Steven E. Soileau, Thomas, Soileau, Jackson, Baker & Cole, L.L.P., 401 Edwards Street, Suite 2015, Shreveport, LA 71101, (318) 216-5058, COUNSEL FOR DEFENDANTS-APPELLANTS: Christopher Gutierrez, Super Tech Automotive, LLC, Colony Insurance Company
    Stephen R. Barry, Barry & Company, LLC, 405 West Main Street, Suite 101, Lafayette, LA 70501, (337) 237-2889, COUNSEL FOR DEFENDANT-AP-PELLEE: GEICO Casualty Company
    Barry A. Roach, Larry A. Roach, Inc., 2917 Ryan Street, Lake Charles, LA 70601, (337) 433-8504, COUNSEL FOR PLAINTIFFS-APPELLEES: Dwight Minton, Betty Minton
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   PICKETT, Judge.

h Three defendants appeal the trial court’s grant of a judgment notwithstanding the verdict (JNOV), its significant increase in damages, and its denial of their claim for court costs because the plaintiffs did not accept their Offer of Judgment and the damages awarded exceeded the offer by more than 25%. These defendants also appeal the trial court’s denial of their cross-claim for costs and attorney fees against a co-defendant insurer for their failure to provide the tortfeasor defendant with a defense. For the following reasons, we affirm the trial court’s grant of the JNOV and amend the damage awards.

FACTS

On June 13, 2012, Dwight Minton was in an accident when the vehicle in which he was a passenger was hit by another vehicle. He and his wife filed suit against Christopher Gutierrez, the driver of the other vehicle; GEICO Casualty Company (GEICO), the insurer of the vehicle; Mr. Gutierrez’s employer, Super Tech Automotive, LLC; Super Tech’s insurer, Colony Insurance Company; and State Farm Automobile Insurance Company, the Mintons’ underinsured/uninsured motorist carrier. In their petition, the Mintons asserted that the accident caused injury to Mr. Minton and that they sought to recover damages for those injuries.

GEICO answered the Mintons’ suit, denying coverage because the accident occurred while Mr. Gutierrez was test driving the insured’s vehicle in his capacity as an employee of Super Tech, which provides vehicle repair services. Citing a coverage exclusion contained within the policy issued to the insured, GEICO asserted that because Mr. Gutierrez was operating the vehicle in the course and scope of his employment for an automotive repair shop, the policy did not provide ^coverage for the accident. After filing its answer, GEI-CO provided no defense to Mr. Gutierrez and did not participate in his defense in the litigation.

Mr. Gutierrez filed a cross-claim against GEICO, asserting that it provided primary coverage for the accident and had a duty to defend Mr. Gutierrez in the litigation. Thereafter, Mr. Gutierrez filed a motion for summary judgment on the issue of whether GEICO had a duty to defend him. The Mintons joined in the motion for summary judgment. GEICO filed a cross motion for summary judgment. The trial court granted Mr. Gutierrez’s motion and denied GEICO’s, motion. GEICO ultimately tendered its policy limits of $25,000.00 to the Mintons, who dismissed their claims against GEICO, Mr. Gutierrez, and Super Tech. The Mintons also reached an agreement with State Farm that it would pay its $25,000.00 UM policy limits if the Mintons settled or obtained a judgment on their claims totaling the $325,000.00 combined limits of the GEICO and Colony policies and dismissed it from the litigation.

The Mintons filed a motion for partial summary judgment on the issue of liability, asserting that Mr. Gutierrez was 100% at fault in causing the accident because he ran a red light controlling the intersection where the accident occurred. Mr. Gutierrez, Super Tech, and Colony (the defendants) opposed the motion, arguing that Mr. Mintons’ son, who was driving the Mintons’ automobile when the accident occurred, was partially at fault, citing the high standard applicable to motorists making left turns and the son’s testimony that he did not see Mr. Gutierrez before the accident occurred. The trial court granted the motion; the judgment granting the motion was not appealed.

In late 2015, a jury trial was held on the Mintons’ claims against the defendants. Central to the defendants’ case was whether Mr. Minton’s right knee Rinjury was caused by the June 13, 2012 accident or an accident that Mr. Minton was involved in on May 11, 2012, when a vehicle turned in front of the motorcycle he was riding.

The Mintons presented the testimony of Dr. William Axelrad, an orthopedic surgeon who treated him for a hip injury he sustained in the May 2012 accident and thereafter. Dr. Axelrad testified that Mr. Minton suffered a knee injury in the June accident that ultimately required a knee replacement and would require Mr. Min-ton to undergo another knee replacement during his lifetime. The defendants presented the testimony of two orthopedic surgeons: Dr. James Perry, who had treated Mr. Minton for an ankle injury he sustained in the May accident, and Dr. Thomas Montgomery, who performed an independent medical examination of Mr. Minton. Both of these physicians attributed the condition of Mr. Minton’s knee to the pre-existing condition of his knee or the May accident. Dr. Montgomery was asked and agreed that even if Mr. Min-ton’s knee condition pre-existed the June accident, the June accident aggravated it. Dr. Axelrad and Dr. Montgomery both testified that with regard to a patient who has a knee condition such as Mr. Minton’s, the patient’s pain, not the condition of his knee, is the determining factor regarding the need for surgery.

The jury returned a verdict in favor of the Mintons and awarded damages totaling $58,500.00. Thereafter, the Mintons filed a motion for JNOV. After a hearing on the motion, the trial court granted the JNOV and awarded the Mintons damages totaling $543,188.79. GEICO’s $25,000.00 policy limits were subtracted from the total amount awarded. Colony’s policy limits are $300,000.00; therefore, the judgment was limited to that amount.

|4Prior to trial, the defendants submitted an Offer of Judgment to the Mintons as provided by La.Code Civ.P. art. 970. The Offer of Judgment offered to allow the Mintons to take a judgment against the defendants “in the amount of ... $50,000.00 ..., inclusive of legal interest.” The Mintons did not accept the offer. After the trial, the defendants filed a motion seeking a judgment ordering the Mintons to pay the costs, exclusive of attorney fees, it incurred after the Offer of Judgment was made, as provided in Article 970. The Mintons opposed the motion, arguing that the trial court’s grant of the JNOV rendered the Offer of Judgment moot and that the offer was ambiguous. The trial court denied the motion.

The defendants appealed and filed separate appeals for the trial court’s grant of the Mintons’ motion for JNOV and its denial of the motion for costs due to GEI-CO’s failure to defend Mr. Gutierrez. The appeals were consolidated.

ASSIGNMENTS OF ERROR

The defendants assign four errors with the trial court proceeding:

1. The trial judge erred in failing to grant the motion for entry of judgment, assessing certain costs against the plaintiff[s] because the offer of judgment made by the defendants was more than 25% higher than the judgment resulting from the jury verdict.
2. The trial judge erred in failing to apply the proper legal standard and test for the entry of a [JNOV]. Instead of addressing whether the facts and inferences were overwhelmingly in favor of the plaintiffs such that reasonable jurors could not arrive at a contrary verdict, the trial judge instead concluded the verdict was very, very wrong, which is not the correct legal standard.
3. The trial judge erred in granting plaintiffs’ motion for [JNOV] multiplying the damages awarded by the jury by almost ten when the evidence relating to causation and damages was controverted and the great majority of the evidence was on the side of the defendants to establish that plaintiffs knee surgeries were not ... a result of the accident giving rise to this lawsuit.
4.Whether the trial court erred in granting the summary judgment of GEICO, which concluded [it] had no duty to defend Christopher^ Gutierrez, though they refused to do so for a period of more than [two and one-half] years during the pendency of the litigation, and whether they owe the attorney[] fees and costs incurred in defending him and incurred as a result of [its] failure to honor [its] obligation under [its] insurance policy and under Louisiana law to defend [its] insured.

DISCUSSION

Resolution of the defendants’ first assignment of error may be pretermitted by our resolution of the second and third assignments of error. Accordingly, we address the second and third assignments of error first.

Judgment Notwithstanding the Verdict

Standard of Review

In Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991) (citation omitted), the Louisiana Supreme Court reiterated the criteria first set forth in Scott v. Hospital Service District No. 1, 496 So.2d 270 (La.1986), for determining whether a JNOV has been properly granted pursuant to La.Code Civ.P. art. 1811:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e, do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answeils to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.

A motion for a JNOV may be granted on the issue of liability, damages, or both. La.Code Civ.P. art. 1811(F). In general, the standard of review of a JNOV on appeal is twofold. First, the appellate court determines “whether the jury verdict is supported by competent evidence and is not wholly unreasonable.” Daigle v. U.S. Fid. & Guar. Ins. Co., 94-304, p. 6 (La. App. 1 Cir. 5/5/95), 655 So.2d 431, 436. If the appellate court finds the trial court properly granted the JNOV, it then reviews the JNOV pursuant to the manifest error standard of review. Davis v. Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d 84.

The same standard applies when the trial court grants a JNOV.as to damages. Savant v. Hobby Lobby Stores, Inc., 12-447 (La.App. 3 Cir. 11/7/12) 104 So.3d 567. Both the decision to grant the JNOV and the trial court’s increase or decrease in damages must be reviewed. Higley v. Kramer, 581 So.2d 273 (La.App. 1 Cir.), unit denied, 583 So.2d 483 (La.1991).

Did the Trial Court Err in Granting a JNOV?

The defendants argue that the trial court applied the wrong standard for granting the JNOV because when granting the JNOV, the trial court concluded the jury’s verdict was “very, very wrong,” rather than tracking the language stated in Anderson, 583 So.2d 829.

The Jury Verdict Form asked the jury: “Do you find that the actions of Christopher Gutierrez caused injures [sic] to the plaintiff, Dwight Minton?” The jury answered “yes,” then completed the damage award section of the form, as follows:

Mr. Minton

The jury answered “no” to the question, “Do you find that Betty Minton suffered a loss of consortium as a result Dwight Min-ton’s injuries?” and declined to award her damages.

The Mintons filed their motion for JNOV. After hearing the parties’ arguments on the motion, the trial court concluded that the jury erred in its damage awards, then granted the motion and awarded the Mintons the following damages:

Mr. Minton

Mrs. Minton

The Mintons assert, in part, that the trial court’s grant of the JNOV was warranted because the jury’s damage awards are inconsistent with the evidence and with each other. Specifically, they contend that the jury’s damage awards for past medical expenses and past lost wages are inconsistent with each other.

IsMr. Minton testified that he only missed work to attend physical therapy sessions, and his medical records reflect that he attended physical therapy through February 2013. This award can only be interpreted as reflecting that even if the jury concluded that the June accident was not the sole cause of Mr. Minton’s knee injury, it aggravated his knee condition, and it concluded the aggravation was more than minimal because it represents his attendance at all physical therapy sessions after the June accident, the arthroscopy of his right knee, and his total knee replacement. Notably, the defendants acknowledge that this award is inconsistent with its other damage awards.

The jury awarded $20,000.00 in past medical expenses; however, Mr. Min-ton incurred $103,974.95 in medical expenses during the time frame of his past lost wage claim. Additionally, Mr. Minton’s past medical expenses associated with his treatment at Memorial Hospital and the additional treatment thereafter for his atrial fibrillation that was attributed solely to the June accident total $13,494.45. Accordingly, these awards cannot be reconciled with each other or the evidence.

The same is true of the awards for past pain and suffering and past mental anguish. The jury awarded Mr. Minton $25,000.00 for his past pain and suffering and $10,000.00 for his past mental anguish but declined to award him damages for past loss of enjoyment of life and past disability. During the same time frame of the past lost wage claim, however, Mr. Minton underwent an arthroscopy and total knee replacement. Accordingly, the jury’s award for past lost wages is also inconsistent with its past medical expenses awards and its past general damage awards.

laA similar situation was addressed in Clement v. Citron, 13-63, pp. 4-5 (La.App. 3 Cir. 6/19/13), 115 So.3d 1260, 1264-65, where another panel of this court addressed the inconsistency of jury verdicts, explaining:

The supreme court has recognized that inconsistent jury verdicts may, in certain circumstances, constitute ... legal error, requiring the appellate court to conduct a de novo review. See Green v. K-Mart Corp., 03-2495 (La. 5/25/04), 874 So.2d 838. For example, when the jury has awarded special damages, but has declined to award general damages, the rewewing court must determine whether the jury’s finding is “so inconsistent as to constitute an abuse of discretion.” Id. (citing Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70). If so, a de novo review is warranted.
Here, we find it difficult to discern the factual conclusions of the jury from the face of the jury verdict form. It is clear that the jury found that Ms. Clement suffered injuries causally related to the accident with Mr. Citron which required medical treatment and would continue to require medical treatment in the future. These conclusions are well-supported by the record. We find, however, that some of the damage awards recorded on the jury verdict form are inconsistent and constitute an abuse of discretion and legal error.

The defendants argue that the jury’s damage awards reflect the jury’s conclusion that the June accident minimally aggravated Mr. Minton’s pre-existing knee condition. This argument attempts to read information into the Jury Verdict Form that is not there. As in Clement, the jury clearly found that Mr. Minton suffered injuries causally related to the June accident, and the evidence supports that conclusion. Unlike Clement, though, the jury did not award Mr. Minton future special or general damages. The jury’s conclusion on these issues cannot be determined from the face of the Jury Verdict Form due to the inconsistency of the damage awards. This inconsistency warranted the trial court’s grant of the JNOV, and we affirm it. Collins v. La. State Police, 13-412 (La.App. 3 Cir. 10/23/13), 158 So.3d 17, writ denied, 13-2726 (La. 2/21/14), 133 So.3d 684.

11flWhen a trial court grants a JNOV because a jury’s damage awards are inconsistent, the trial court renders “a de novo award based on its independent assessment of damages.” Daigle, 655 So.2d at 436 (citing Anderson, 583 So.2d 829). Having found no manifest error in the trial court’s grant of the JNOV, we review the trial court’s damage awards under the abuse of discretion standard. Higley, 581 So.2d 273; see also Anderson, 583 So.2d 829. Pursuant to the abuse of discretion standard of review, the appellate court considers the damage awards in light of the facts and circumstances of the particular case before the court. Miller v. LAM-MICO, 07-1352 (La. 1/16/08), 973 So.2d 693. Consideration of prior damage awards is appropriate only if the review of facts show an abuse of discretion by the fact finder. Id.

To recover past medical expenses, the plaintiff must present medical testimony to prove he suffered an injury in the accident at issue and that the injury was caused by the accident, Reed v. LaCombe, 15-120 (La.App. 3 Cir. 7/29/15), 172 So.3d 679. The trial court’s award for past medical expenses are substantiated by Dr. Ax-elrad’s testimony and Mr. Minton’s medical bills. Accordingly, the award does not constitute an abuse.

Future medical expenses must be established with some degree of certainty; however, it is recognized that such claims are somewhat speculative. Menard v. Lafayette Ins. Co., 09-1869 (La. 3/16/10), 31 So.3d 996. This award is also substantiated by Dr. Axelrad’s testimony regarding Mr. Minton’s future medical expenses for a future knee replacement and do not constitute an abuse of discretion.

A plaintiff can recover damages for loss of enjoyment of life upon proving that his injury had a negative impact on his life or lifestyle and/or had a negative impact on his ability to participate in activities. McGee v. A C & S, Inc., 05-10361 (La. 7/10/06), 933 So.2d 770. The nature and severity of the plaintiffs injury and the lifestyle he enjoyed before the injury must be considered when determining whether he sustained such a loss.

Mr. Minton testified that he could no longer engage in numerous activities that he participated in before the June accident and/or his ability to participate in activities was severely limited. He explained how he had enjoyed umpiring for more than twenty years but he could not engage in that activity as he had before. He also described the effect of his limitations on his former pastime of bowling and his ability to actively engage in playing with his grandchildren. Mrs. Minton expounded on Mr. Minton’s limitations after the June accident and subsequent surgical procedures with regard to his inability to engage in umpiring, bowling, and church activities that he had formerly enjoyed.

The trial court awarded Mr. Min-ton $100,000.00 for loss of enjoyment of life. In view of the severe pre-existing degenerative and arthritic condition of Mr. Minton’s knee, we find this award constitutes an abuse of discretion and reduce it to $75,000.00.

The evidence substantiates that Mr. Minton’s total knee replacement constitutes a permanent impairment that has limited his ability to engage in activities he previously engaged in and enjoyed. Such an impairment constitutes a disability. Brossett v. Howard, 08-535 (La.App. 3 Cir. 12/10/08), 998 So.2d 916, writ denied, 09-77 (La. 3/6/09), 3 So.3d 492. For the reasons stated above, we find the trial court’s $75,000.00 award excessive and reduce it to $50,000.00.

Next, we consider the trial court’s awards for past and future pain and suffering. Considering the particular facts of this case, including Mr. Minton’s pre-existing severe degenerative joint disease in his right knee, we find the trial! 1 a court’s general damage awards are so high that they constitute an abuse of discretion and reduce each award by $25,000.00. Thus, these awards are amended as follows:

Past Pain and Suffering $50,000.00
Future Pain and Suffering $75,000.00

Lastly, we consider the trial court’s award for loss of consortium. Loss of consortium has been held to be “more than just a loss of general overall happiness, but includes seven components: love and affection, society and companionship, sexual relations, right of performance of material services, right of support, aid, and assistance, and felicity.” Detraz v. Hartford Acc. & Ind. Co., 94-708, p. 9 (La.App. 3 Cir. 12/7/94), 647 So.2d 576, 581. Mrs. Minton testified that Mr. Minton can no longer assist her in various tasks and activities, in and out of the home, as he did before the June accident and that they no longer share a bed and sleep in the same room. She further explained that often times and in many ways Mr. Minton no longer engages with her and their family as he did before the accident. Based on this evidence, we find no error with the trial court’s award of $25,000.00 to Mrs. Minton for loss of consortium.

Offer of Judgment

The defendants argue in their first assignment of error that the trial court erred in denying their motion to enforce the Offer of Judgment. Pursuant to La.Code Civ.Proc. art. 970(A), “any party may serve upon an adverse party an offer of judgment for the purpose of settling all of the claims between them.” “If the final judgment obtained by the plaintiff-offeree is at least twenty-five percent less than the amount of the offer of judgment made by the defendant-offeror,” the | ^plaintiff is obligated to pay “the offeror’s costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.” La.Code Civ. P. art. 970(C).

The Mintons argue that the trial court did not err in denying the defendants’ motion because the trial court’s grant of their motion for JNOV rendered the Offer of Judgment moot. Article 970 applies only to a final judgment. La.Code Civ.P. art. 970(C). The jury’s verdict did not become a final judgment as required by the express terms of Article 970. Accordingly, this assignment lacks merit.

Colony’s claim for attorney fees and costs from GEICO

Colony, on behalf of Mr. Gutierrez, seeks to recover a portion of the costs it expended in defending Mr. Gutierrez. GEICO asserts that the allegations of the Mintons’ petition unambiguously excluded coverage under its policy because Mr. Gutierrez was driving an automobile being repaired by his employer, Super Tech. This argument ignores the fact that our supreme court held the policy exclusion GEICO relies on unenforceable prior to the June accident. Sensebe v. Canal Indent. Co., 10-703 (La. 1/28/11), 58 So.3d 441. GEICO’s argument also ignores that an insurer’s obligation to its insured includes the duty to defend and that the duty to defend is broader in scope than the duty to provide coverage for claims. Steptore v. Masco Const. Co., Inc., 93-2064 (La. 8/18/94), 643 So.2d 1213.

The defendants cite Lafauci v. Jenkins, 01-2960 (La.App. 1 Cir. 1/15/03), 844 So.2d 19, writ denied, 03-498 (La. 4/25/03), 842 So.2d 403, in support of this claim. In Lafauci, the defendant insurer deposited its policy limits in the registry of the court in lieu of making an official tender of its policy limits to the plaintiff. The insurer did not file an answer on behalf of its insured and refused to defend its insured. The insured was forced to hire an attorney to defend him in the litigation. | uThe trial court awarded the insured the expenses and attorney fees he was forced to incur.

There is no evidence that Mr. Gutierrez incurred any expenses or attorney fees as a result of GEICO’s failure to defend him because Colony was also obligated to defend him and did so. GEICO argues that Colony seeks to recover a portion of the expenses it incurred in its defense of Mr. Gutierrez. In this regard, Colony has not established that it has standing to recover such damages. Moreover, the record does not contain any evidence of damages resulting to either Mr. Gutierrez or expenses incurred by Colony resulting from GEICO’s failure to defend Mr. Gutierrez. At the hearing on Colony’s motion, the trial court asked counsel for Colony what damages he sought to recover. Counsel responded “$3,000-$5,000.” The trial court properly noted that such evidence was insufficient to establish the claim.

Colony did not attempt to introduce any evidence supporting its claim at that hearing but asks this court to remand the matter for another hearing before the trial court. Pursuant to La.Code Civ.P. art 2164, appellate courts have the authority to remand a case for the introduction of additional evidence if its failure to do so would result in a grave injustice. No evidence establishes that Mr. Gutierrez sustained damages as a result of GEICO’s breach of its duty to defend, and Colony has not established that it has standing to recover the damages sought. Accordingly, there is no basis for the award sought and no need to remand the matter. This assignment of error lacks merit.

DISPOSITION

For the reasons set forth herein, the judgment of the trial court granting the motion for judgment notwithstanding the verdict in favor of Dwight and Betty 11fiMinton is affirmed. The trial court’s awards for Dwight Minton’s past and future medical expenses are affirmed; however, the trial court’s general damage awards for loss of enjoyment of life, past pain and suffering, future pain and suffering, and disability are reduced to loss of enjoyment of life $75,000.00, past pain and suffering $50,000.00, and future pain and suffering $50,000.00. The trial court's $25,000.00 award for loss of consortium damages in favor of Betty Minton is affirmed. All costs are assessed to Christopher Gutierrez, Super Tech Automotive, LLC, and Colony Insurance Company.

AMENDED AND AFFIRMED AS AMENDED.


author: GREMILLION, Judge. CHATELAIN, J.,

text:
    STATE of Louisiana v. Rickey JOSEPH
    16-763
    Court of Appeal of Louisiana, Third Circuit.
    03/08/2017

      Hon. Trent Brignac, Thirteenth Judicial District Attorney, Nicole F. Gil, Asistant District Attorney, P. 0. Drawer 780, Ville Platte, LA 70586, (337) 363-3438, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Rickey Joseph
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and David E, Chatelain , Judges. .

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GREMILLION, Judge.

| defendant, Rickey Joseph, appeals his convictions and sentences for simple burglary, a violation of La.R.S. 14:62; theft, $500.00 or more but less than $1,500.00, a violation of La.R.S. 14:67(B)(2), amended by 2014 La. Acts No. 255, § 1; and simple criminal damage to property less than $500.00, a violation of La.R.S. 14:56(B)(1). For the reasons that follow, we affirm Defendant’s convictions, vacate his sentences, and remand to the trial court for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In the wee hours of March 20, 2014, a burglar gained entry to K’s Kuts Barber Shop in Ville Platte, Louisiana, by removing a window-mounted air conditioning unit. Security camera footage depicted Defendant as the burglar. Once inside, Defendant stole several items, valued at approximately $1,200.00. Defendant also caused minor damage to the window frame when he forced entry into the premises.

Defendant was charged with the above offenses by bill of information filed on May 12, 2014. The original bill of information simply alleged that Defendant violated La. R.S. 14:56, so it was amended on the date of trial, March 22, 2016, to allege that the criminal damage to property was less than $500,00 and to correct the name of the owner of the K’s Kuts building. Defendant’s objection to this amendment was overruled.

During jury selection, the State sought to backstrike prospective juror Mary Ann Fontenot, an African American. The defense stated it needed to “discuss the issues of [the State] striking all the African American people.” Before the trial court fully responded, the prosecutor stated he would be glad to address the issue, which was allowed by the court. The State offered the following explanation:

|2Your Honor first of all the first peremptory exception that was used by the State was Ms. Tamyra Wallace. Uh... during the voir dire I pointed out to Ms. Nicole Gill that she had her eyes closed. I’d like to say she was sleeping but I cannot tell you she was sleeping. I can tell you she just kept her eyes closed multiple times. We took note of that. Our second back strike was Ms. Sybil Fontenot who is a white female who we made a challenge for cause that was denied. Our third back strike was James Anthony Lavergne. We will note that the defense in voir dire elicited the fact that he had hearing issues and that is one of the primary reasons that he was used as a peremptory exception. The fourth back strike was a white female named Chasity Guillory and I’ll give you our explanation if you’d like which is she seemed a little gun hoe [sic] and maybe a little too aggressive from a standpoint of just a six person jury but to,. .to reiterate we struck a black, a white, a black, a white. So we, you know, we don’t control the makeup of the veni-re and... and so we were being equal there. Our fifth strike was in fact Ms. Mary Ann Fontenot and very frankly uh... to articulate why we struck is.. .is basically just one of those feelings, you know, after looking at her and judging her. Uh.. .you know she mentioned she knew Chateuse James but I can’t in good conscious tell you that that’s the reason we used the perempt. We very simply used the perempt on her because we.. .it’s just one of those things we didn’t uh.. .we didn’t think she’d serve the State’s best interest.
The court responded:
And... and uh... your response you can do it now or we can... we can put it on the record later. I’m gonna reserve that right but ... but uh.., based on the explanation of the District Attorney’s Office the Court does not see any pattern and/or cause but you can.. ./all can put that on the record when the jur/s not there.

The matter ended at this point, and the parties continued with jury selection, and a six-person jury and an alternate were selected.

The trial court allowed the State to offer the testimonies of Defendant’s brother, Mr. Stacy Joseph, and his sister-in-law, Mrs. Sheila Joseph, despite the State not identifying them as potential witnesses.

The following colloquy was had regarding the addition of the two witnesses prior to opening statements:

[DEFENSE COUNSEL]:
Your Honor uh.. .we’ve been notified that several witnesses may be called today that we were unaware of. Our discovery does not mention several of the witnesses that the prosecution wants to bring ^forward. We feel that that is urifair and they should be excluded. We have not had time to talk to these witnesses, investigate these witnesses. We have no idea what they’re going to say. So we’re objecting to that Your Honor.
[THE COURT]:
Okay. I’m gonna let the State respond .... They gonna tell the Court when.. .when /all filed /all discovery and when they answered the discovery and all that information and uh... any law that either party has....
[THE STATE]:
Your Honor in this matter at least two of these witnesses, Sheila Joseph and Stacy Joseph, we only recently came to know uh... that they knew anything about this. So it wasn’t uh... a long period of time, we didn’t keep it from them. We.. .they are here and we’re just talking to them now. It’s mainly identification is uh.. .what they’re going to testify to.
[THE COURT]:
Well a couple of things and let me tell you what, I’m...the Court is gonna... can withhold hearing to allow you, the defense attorneys, to provide me any case law and the State and then what we.. .what they can do, we gonna do openings anyway and that’ll take probably a half hour each or whatever it’s gonna take on either party. The Court’s not trying to stop it but the Court will take...will take that argument about the witnesses under advisement till the State will have an opportunity to answer that and then I will rule but it’s my understanding uh... Mr. West and Ms. Alicia Kelly that uh... once the... once the discovery was answered and provided and I’m sure they have that. They can say when they were... y’all filed the discovery and when y’all answered ’em. I don’t think there’s, unless y’all show me some law or some case where there is any necessity for the District Attorney to provide their.. .their witnesses or the identity of their witnesses uh.. .uh.. .that they gonna call. I think that., .that as stated and ... this as to the identity and I think that’s the whole crux of the case is.. .is having the State, if they can, prove beyond a reasonable doubt that it was this gentleman that.. .that committed those crimes and part of that is an identity but if you have some law or some cases....
[THE COURT!:
Okay. Alright. So what we gonna do is I’ll withhold uh... my ruling on that but that’s.. .unless y’all can present me with something the Court is going to allow those witnesses and uh.... We have | ¿openings and I’m sure they can start with their witnesses that may not be in controversy... .and then we can go from there ....

We also note that neither when Stacy Joseph testified regarding Defendant’s statement to him, nor when the statement was referenced by the State in its closing argument, did the defense object.

After deliberating, the jury unanimously convicted Defendant as stated above. The trial court sentenced Defendant to nine years at hard labor with three years suspended on the chai’ges of simple burglary and theft. He was sentenced to six months at hard labor for simple criminal damage to property. Defendant was placed on supervised probation for three years, subject to certain conditions including a $1,000.00 fine, $127.50 court costs, $350.00 to the Indigent Defender Board, $250.00 cost of prosecution, $100.00 warrant fee, and “$50.00 victim fund and restitution.” The trial court stated “Restitution to be determined by the probation and parole.” The trial court imposed no payment plan on Defendant as a condition of his probation.

ASSIGNMENTS OF ERROR

Defendant is appealing his simple burglary conviction and his sentences for theft and simple criminal damage to property. He asserts that the following errors were committed at trial:

I. The trial court’s sentence for counts 2 and 3 of the indictment are illegally excessive sentences.
II. The State failed to sufficiently prove that Rickey Joseph was the person who burglarized the barber shop and, thus, was guilty.
III. The trial court erred by allowing last minute witnesses to be added to the State’s witness list, over the objection of the defense.
IV. The trial court erred in rejecting Rickey Joseph’s Batson [v. Ken tucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)] challenge because State failed to offer sufficient, race-neutral reasons fojrK its peremptory challenge to juror Mary Ann Fontenot and the trial court failed to follow the three-step process required for Batson challenges.

ANALYSIS

ERRORS PATENT

Louisiana Code of Criminal Procedure Article 920 mandates that the court of appeal review all cases for errors patent on the face of the appeal. In this matter, we find one error patent in the bill of information and errors patent in Defendant’s sentencing.

Defendant was charged by bill of information with simple burglary, theft, and criminal damage to property. Because simple burglary and theft are triable before a six-person jury, and simple criminal damage to property less than $500.00 is not triable to a jury, Defendant could not be charged by bill of information with all three offenses. La.Code Crim.P. art. 493. However, the appropriate means by which to raise this deficiency in the bill of information was for Defendant to file a motion to quash, which Defendant failed to do. Therefore, Defendant waived his objection to this error. La.Code Crim.P. art. 495; State v. Williams, 07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744.

As stated above, Defendant’s sentence placed him on supervised probation. As a condition thereof, the trial court ordered Defendant to pay restitution in an amount to be determined by “the probation and parole.” We have held that a sentence that imposes restitution, but which fails to state the amount thereof, is illegal, and the case must be remanded for resentencing. State v. Joseph, 05-186 (La.App. 3 Cir. 11/2/05), 916 So.2d 378. Further, the trial court erred in failing to impose a payment schedule to govern Defendant’s payment of fines, court costs, and probation fees. This, too, requires resentencing of Defendant. State v. Arisme, 13-269 (La.App. 3 Cir. 10/9/13), 123 So.3d 1259.

J¿SUFFICIENCY OF THE EVIDENCE

If the evidence were insufficient to support Defendant’s conviction, we would be required to acquit him; therefore, we will initially address Defendant’s second assignment of error.

Erin Demourelle Fontenot’s husband, Kalum, operates the barber shop, and Mrs. Fontenot is a stylist in the shop and currently owns the building. When shown the surveillance video footage, Mrs. Fontenot testified that it appeared to be Defendant shown therein. Mr. Stacy Joseph also testified that the person shown in the surveillance video burglarizing the shop appeared to be Defendant. Mr. Joseph paraphrased his conversations with Defendant:

I asked him if he was the one that broke in the um... some... the beauty shop. He told me no, it wasn’t him and I kept asking him the same question, same question over and over. He says, “that wasn’t me. I don’t know what you talking about” until he said, “yeah it was me.” Then I’m like, “mais why you did that” and it went blank after that. Then there’s another time when he asked me ... no I asked him, I got in touch with him on the phone and I asked him, I said, “why you did that”, and he said, “did what.” I said, “broke in the place.” He said, “I told you that so you can leave me alone, stop asking me the same questions over and over,” and I just ...

When Mr. Joseph asked Defendant where the loot was, he said someone had it, and he gave Mr. Joseph directions to an old abandoned trailer. Mr. Joseph went to the trailer, but did not find the items. Had he found them, Mr. Joseph intended to return them to his wife’s coworker, as he was related to the owner of the shop. Mr. Joseph viewed the video in court and said it looked like his brother; on cross-examination, he said he was ninety percent sure it was his brother. He added, “It could be a doubt.”

On cross-examination, Mr. Joseph clarified his conversation with Defendant regarding the commission of the crime:

17Q. I just have a few questions. You said that when you first asked him if he did it he kept saying no. How many times did you ask him if he did it and he said no?
A. About seven, eight time[s].
Q. Okay. And then you said, finally he said yes. Could it be possible he was doing it just so you would leave him alone?
A. That’s what he told me.
Q. And then you said when you asked him later why he did it, he was .. .you said did what, like he was confused, is that accurate?
A. Yeah.
Q. So it’s possible that he was surprised and he had forgot he had told you he did it?
A. I... I guess. I kept asking him over.

Mrs. Sheila Joseph testified that she was employed at the hospital in Eunice with Mr. Don Demourelle near the time the incident occurred. Mrs. Joseph learned from Mr. Demourelle that his daughter, Erin, was the owner and one of the stylists at K’s Kuts. While working at the hospital, Mrs. Joseph became aware of the burglary at K’s Kuts and that Defendant may have committed the offense. She testified that she asked her husband if “he knew that Rickey committed that.” According to Mrs. Joseph, her attempt to secure some of the stolen items was unsuccessful.

Mrs. Joseph was shown the video taken at the time of the burglary as well as the still photos taken from the video. When asked if the person in the photographs was Defendant, Mrs. Joseph replied, “one of ’em look like him yeah. Yeah.” On cross-examination, the following exchange occurred regarding Mrs. Joseph’s identification of Defendant in the pictures:

Q. Good afternoon Ms. Joseph. You said one of ’em looks like him, the other two don’t?
A. It’s kind of blurred.
IsQ. It is.
A. Yeah. So the one that I really thought that looked like him that’s why I said it looks like him.
Q. And that one are you 100% sure it’s him?
A. Yes.
Q. There’s no doubt in your mind at all?
A. Un un.

Mr. Don Demourelle, Erin Fontenot’s father, learned of the burglary and went to the shop. He provided the video of the burglary to the Ville Platte Police Department, but he could not identify anyone on the video. Mr. Demourelle testified that he retrieved the video and turned it over to police because the video was locked in a box to which he had the key. Mr. Demou-relle also repaired the damaged framing around the air conditioner. He testified that it cost him about $50.00 in materials and about four hours to repair it.

The video obtained by Mr. Demourelle was turned over to Detective Chateuse James of the Ville Platte Police Department. Detective James contacted City Marshal Deputy Horace Johnson, who, with no hesitation, identified Defendant as the person in the video. Detective James testified that Kalum Fontenot provided her with a list of items that were missing and their values. This information was listed in an affidavit prepared for the arrest warrant. Listed were several tools of the barbering trade with a combined value of $1,228.00. Detective James testified that clean fingerprints could not be collected.

Officer Blade Bonnette with the Evangeline Parish Sheriffs Office testified that he was employed with the Ville Platte Police Department at the time this incident occurred, and he responded to the call. He verified that there was a forced entry through the window and items were taken.

| ¡¡Deputy Johnson testified that he was asked by Detective James to look at a video. The still photos from the video were shown to Deputy Johnson in court, and he identified Defendant with 99% certainty as the person in the video. At one time, Deputy Johnson had been a regular customer of Defendant.

Ronald Doucet, Ward I City Marshal, testified that he has known Defendant as a former neighbor of his in-laws and as a barber for the past eighteen years. He testified he would see Defendant from time to time and used him as a barber a few times. Mr. Doucet viewed the video and was shown the still photographs from the video for the first time at trial. He testified that there was no doubt in his mind that the person on the video and in the photos was Defendant. Neal Lartigue, Chief of Police of Ville Platte, also testified that the person in the video is Defendant.

When a defendant raises sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the prosecution to determine whether “any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371. We find that a rational trier of fact could have found that the State proved every element of the crimes charged beyond a reasonable doubt. Several witnesses identified Defendant as the burglar depicted in the surveillance video. Further, Defendant admitted to his brother at one time that he had perpetrated the crime. This assignment of error lacks merit.

LATE-ADDED WITNESSES

Defendant contends that the trial court erred in allowing the State to present the testimonies of his brother and sister-in-law because they were added at the last minute to the State’s witness list. The State explained that it had only recently learned of the fact that they knew anything about the case. Because Mr. Stacy] in Joseph testified about Defendant’s admission to having committed the burglary, Defendant contends that the State violated La.Code Crim.P. art. 768, which states:

Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

A violation of Article 768, though, may be considered harmless error when the other evidence of guilt is overwhelming. State v. Breaux, 473 So.2d 923 (La.App. 3 Cir. 1985). As noted above—and even excluding the evidence of Defendant’s admission to his brother—we find the evidence of Defendant’s guilt so overwhelming that any violation of Article 768 would constitute harmless error. This assignment of error has no merit.

BATSON CHALLENGE

Following jury selection, Defendant challenged the State’s use of peremptory challenges to African American prospective jurors. Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, held that an equal protection violation has occurred when a party exercises peremptory challenges to exclude a juror on the basis of race. A Batson analysis involves three steps. First, the court must determine whether Defendant has established a pri-ma facie case that the prosecutor challenged a prospective juror on the basis of race. State v. Wilkins, 11-1395 (La.App. 3 Cir. 6/20/12), 94 So.3d 983, writ denied, 12-1712 (La. 3/1/13), 108 So.3d 782. If a prima facie showing has been made, the prosecutor must present race-neutral explanations for the challenge. Id. Those race-neutral explanations need not be persuasive. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). If the prosecutor offers race-neutral explanations, the court must decide whether Defendant has demonstrated “purposeful discrimination.” State v. Sarpy, 10-700, p. 14 (La.App. 3 Cir. 12/8/10), 52 So.3d 1032, 1042, writ denied, 11-46 (La. 6/3/11), 63 So.3d 1006. On appeal, “a Inreviewing court owes the district judge’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous.” State v. Allen, 03-2418, p. 12 (La. 6/29/05), 913 So.2d 788, 798, cert. denied, 547 U.S. 1132, 126 S.Ct. 2023, 164 L.Ed.2d 787 (2006).

At jury selection, Defendant’s counsel challenged the State’s exercise of peremptory challenges to all African American prospective jurors. The State responded to this by pointing out that it had exercised its first peremptory challenge against a woman who seemed to be sleeping during voir dire. Its second peremptory challenge was exercised against a white prospective juror prospective juror whom the prosecution had sought to challenge for cause. The third was exercised against an African American with hearing difficulties. The fourth was exercised to strike a Caucasian prospective juror who “seemed a little gum hoe ' [sic].” The State’s explanation for striking Ms. Mary Ann Fontenot, an African American, was, to say the least, thin:

Our fifth strike was in fact Ms. Mary Ann Fontenot and very frankly uh... to articulate why we struck is.. .is basically just one of those feelings, you know, after looking at her and judging her. Uh...you know she mentioned she knew Chateuse James but I can’t in good conscious tell you that that’s the reason we used the perempt. We very simply used the perempt on her because we...it’s just one of those things we didn’t uh.. .we didn’t think she’d serve the State’s best interest.

The trial court, though, found no pattern to the State’s exercise of its challenges and denied Defendant’s Batson challenge.

It is clear that the trial court found that Defendant failed to present a prima facie case that the State exercised it challenge on the basis of race. Only then would the burden shift to the State to offer race-neutral explanations for the exercise of its challenge. Defendant argued that the State exercised challenges to strike all African American prospective jurors, but that was not the case. With noh2 other showing than that three of the four stricken prospective jurors were African American, we cannot find that Defendant presented a prima facie case that the State struck Mrs. Fontenot on the basis of race. “[T]he mere invocation of Batson when minority prospective jurors are peremptorily challenged .... does not present sufficient evidence. ... to lead to an inference of purposeful- discrimination.” State v. Draughn, 05-1825, pp. 25-26 (La. 1/17/07), 950 So.2d 583, 608, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). “Otherwise, there would be no need for the first Batson step.” Id. This assignment of error lacks merit.

ILLEGALLY EXCESSIVE SENTENCES

Defendant argues that his sentences for theft and criminal damage to property were illegally excessive. He is correct.

Ordinarily, a conviction for criminal damage to property less than $500.00 would not even be appealable; however, given the circumstances of this case, we choose to exercise our supervisory jurisdiction to review this sentence. See La.Const. art. 5, § 10(A). The trial court sentenced Defendant to serve six months at hard labor for the charge of criminal damage to property where the damage is less than $500.00. The maximum penalty for this offense was and is a fine of not more than $1,000.00 and/or imprisonment for not more than six months. La.R.S. 14:56(B)(1). The sentence was illegally excessive.

Similarly, at the time of the offense, the maximum penalty for theft of anything of value between $500.00 and $1,500.00 was imprisonment with or without hard labor and/or a fíne of not more than $2,000.00. Defendant was sentenced to imprisonment at hard labor for nine years, with three years suspended. This sentence was illegally excessive.

JjgDECREE

Defendant’s convictions for theft, simple burglary, and simple criminal damage to property are affirmed. Defendant’s sentences for all three offenses are vacated, and the matter is remanded for resentenc-ing.

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED.

Chatelain, Judge, concurs and assigns reasons.

CHATELAIN, J.,

concurring to assign additional reasons.

hi agree with the opinion of this court. However, I choose to write briefly on the State’s decision to strike Mrs. Mary Ann Fontenot.

Although the supreme court thoroughly examined the role of “gut feelings” in Alex v. Rayne Concrete Serv., 05-1457 (La. 1/26/07), 951 So.2d 138, as part of an examination of purposeful discrimination on the grounds of race in the exercise of peremptory challenges, it is clear in the present case that the defendant failed to present a prima facie case that the State exercised this challenge on the basis of race. Even though the State may have been inarticulate in its explanation for striking Mrs. Fontenot, it nonetheless mentioned a race neutral ground for this juror’s strike— Mrs. Fontenot knew Detective Chateuse James of the Ville Platte Police Department, a key State witness.

Although personal connections to and relationships with law enforcement personnel do not, by themselves, disqualify prospective jurors for cause, such associations and relationships are subject to careful scrutiny. State v. Alexander, 620 So.2d 1166 (La.1993); State v. Ford, 489 So.2d 1250 (La.1986), vacated on other grounds, 479 U.S. 1077, 107 S.Ct. 1272, 94 L.Ed.2d 133 (1987), on remand, 503 So.2d 1009 (La.1987). The question is whether the prospective juror could assess the credibility of each witness independently of his/ her relationship with law enforcement. State v. Carlos, 618 So.2d 933 (La.App. 1 Cir.1993), writ denied, 623 So.2d 1305 (La.1993). In the context of peremptory challenges, distinct from disqualification of a prospective juror for cause, potential partiality because of such relationship is a sufficient racially neutral reason for a peremptory challenge. State v. Wilson, 25,775 (La.App. 2 Cir. 2/23/94), 632 So.2d 861.

      . Defendant was a barber and worked at K's Kuts.

      . Louisiana Revised Statutes 14:67 was amended by 2014 La.Acts No. 255. This act became effective after the burglary of K’s Kuts.


author: SAUNDERS, Judge.

text:
    Kodie J. COURVILLE, et ux. v. ALLSTATE INSURANCE COMPANY, et al. Efrem Ross v. Patricia A. Francis, et al.
    16-556
    16-557
    Court of Appeal of Louisiana, Third Circuit.
    03/08/2017

      M. Terrance Hoychick, A Professional Law Corporation, P. O. Drawer 391, Eunice, LA 70535-0391, (337) 457-9331, COUNSEL FOR PLAINTIFFS/APPEL-LEES: Kodie J. Courville, Brooke H. Courville
    Edwin G. Preis, Jr., Edward F. Kohnke, TV, Catherine M. Landry, Preis PLC, P. O. Drawer 94-C, Lafayette, LA 70509, (337) 237-6062, COUNSEL FOR DEFENDANT/APPELLANT: Lexington Insurance Company
    C. Shannon Hardy, John W. Penny, Jr., Penny & Hardy, A Professional Law Corporation, P. O. Box 2187, Lafayette, LA 70502, (337) 231-1955, COUNSEL FOR DEFENDANTS/APPELLEES: Allstate Insurance Company, Patricia Francis
    L. Clayton Burgess, L. Clayton Burgess, APLC, 605 W. Congress St., Lafayette, LA 70501, (337) 234-7573, COUNSEL FOR • DEFENDANT/APPELLEE: Efrem Z. Ross
    Patricia J. Delpit, Johnson, Rahman & Thomas, Louisiana Workers’ Compensation Corporation, P. O. Box 98001, Baton Rouge, LA 70898-8001, (225) 231-0899, COUNSEL FOR DEFENDANT/APPEL-LEE: Louisiana Workers’ Compensation Corporation
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   SAUNDERS, Judge.

| iThis case involves an automobile accident wherein two defendant drivers were traveling in the same direction on a two-lane highway. The accident happened when one of the two defendant drivers moved to the right side of the lane of travel while the other attempted to turn into a pharmacy parking lot located on the right. The two defendant drivers’ vehicles struck one another and then hit the plaintiffs’ vehicle that was occupied in the parking lot.

Prior to trial, a motion in limine was heard regarding the admissibility of pleadings in the plaintiffs’ subsequent divorce proceedings. The trial court ruled that the pleadings’ probative value was outweighed by the potential prejudice. Thus, it did not allow defendants to present the pleadings as evidence at trial. A writ was taken to this court on this exclusion, which this court denied.

After a jury trial, while deliberating, the jury requested to see plaintiffs’ petition for damages. Even though the petition for damages was admitted into evidence at trial, the trial court denied the jury’s request because it felt that the original petition without the amended petition would be prejudicial.

The jury found one of the two defendant vehicles involved in the accident to be 100% at fault. The insurance company of the vehicle found to be 100% at fault filed this appeal, requesting review of the trial court’s exclusion of the pleadings from the plaintiffs’ divorce proceedings, the allocation of fault, and the denial of the jury to view the plaintiffs’ petition for damages.

FACTS AND PROCEDURAL HISTORY:

On November 18, 2008, Patricia Francis was driving on Louisiana Highway 89 (the Youngsville Highway) near its intersection with West Pinhook Road in Lafayette, Louisiana. Francis was followed by a truck attached to a gooseneck |2trailer driven by Efrem Ross who was in the course and scope of his employment with Whitco Supply, LLC.

Francis intended to turn right into a CVS Pharmacy parking lot to deliver her grandchild to the child’s mother. The CVS Pharmacy is located at the corner of the Youngsville Highway and West Pinhook Road. Just after where Francis intended to make the right turn, the single lane of travel begins to branch into four lanes of travel.

When Francis attempted to make her right turn, she and Ross struck one another. The impact caused both Francis and Ross to leave the Youngsville Highway and travel into the CVS Pharmacy parking lot. Ross’ vehicle then struck a vehicle occupied by Kodie Courville.

Kodie Courville, and his wife, Brooke Courville, filed suit against Francis and her insurer, Allstate Insurance Company. They also named as defendants: Ross, his employer, Whitco, and Whitco’s insurer, Lexington Insurance Company. Kodie alleged that he sustained injuries as a result of the accident while Brooke brought a loss of consortium claim.

The Courvilles’ petition for damages originally alleged that Francis was partially at fault for the accident. However, they amended their petition to assert that Ross was solely at fault for the accident but did not dismiss Francis and Allstate as defendants.

Prior to a jury trial, several motions were filed and decided by the trial court. Relevant to these proceedings is a motion in limine seeking to exclude allegations made by Brooke Courville in the Cour-villes’ divorce proceedings. The trial court granted the motion to exclude these divorce proceeding allegations. A writ was filed to this coui’t regarding the exclusion of the evidence. This court denied the writ.

Is A jury trial began on January 25, 2016. During the trial, the original petition for damages filed by the Courvilles was admitted into evidence, and some testimony and arguments were presented as to why the Courvilles originally alleged that Frances had some fault in causing the accident, later amended their petition to allege that Francis was free from fault, but did not dismiss Francis or Allstate. After conclusion of closing arguments some days later, during deliberations, the jury requested to review the Courvilles’ original petition for damages. The trial court denied the request on the basis that the original petition, without also reviewing the amended petition, would be more prejudicial than its probative value.

The jury returned a verdict finding Ross solely at fault for the accident. It awarded Kodie Courville in excess of $3,000,000.00 for his damages and $21,000.00 to Brooke Courville for her loss of consortium.

Lexington filed the appeal now before us. It alleges three assignments of error. The Courvilles answered the appeal and alleged two errors.

LEXINGTON ASSIGNMENTS OF ERROR:

1. The trial court erred in not allowing the jury to view the Petition for Damages when requested during deliberations which document had been admitted into evidence without objection.
2. The jury erred in finding Ross 100% liable for Appellees’ alleged damages as Francis was negligent and the cause-in-fact of Appellees’ alleged damages when she attempted to execute an improper right turn into the CVS parking lot in violation of Louisiana Revised Statutes 32:104 and 32:58 when she attempted to make a right turn without utilizing her mirrors, while inattentive and on her cell phone causing her to turn her vehicle into the side of the Ross truck located nearly parallel to her vehicle.
3. The trial court erred in not allowing Appellant to present evidence to the jury of the Courvilles’ divorce proceedings resulting in excessive loss of consortium damages being awarded.

COURVILLES ASSIGNMENTS OF ERROR:

|41. The general damages awarded by the jury for Kodie Courville’s injuries were so low as to amount to an abuse of discretion.
2. The trial court erred in its refusal to allow introduction into evidence of other individuals working in the Non-Destructive Testing Industry and the amounts they earned in support of plaintiffs earning capacity loss claim. That legal error caused the plaintiff to suffer a loss in the award for future loss of earnings/and or earning capacity.

LEXINGTON ASSIGNMENT OF ERROR NUMBER ONE:

Lexington asserts that the trial court erred in not allowing the jury to view the Petition for Damages when requested during deliberations. We find no merit to this assertion.

Louisiana Code of Civil Procedure Article 1794 (emphasis added) states:

A. Jurors shall be permitted to take notes. The court shall provide the needed writing implements. Jurors may, but need not, take notes and such notes as are taken may be used during the jury’s deliberations but shall not be preserved for review on appeal. The trial judge shall ensure the confidentiality of the notes during the course of the trial and the jury’s deliberations. At each recess prior to jury deliberation, the court shall collect and maintain any and all notes made by each juror and upon reconvening, the court shall return to each juror his individual notes and shall cause the notes to be destroyed immediately upon return of the verdict.
B. The court may allow the jury to take with them any object or writing received in evidence, except depositions and except as otherwise provided in the Louisiana Code of Evidence.

“After giving notice to the parties, the court may have the requested testimony read to the jury and may permit the jury to examine the requested materials admitted into evidence.” La.Code Civ.P.art. 1795(B)(emphasis added).

The standard of review applicable when determining whether a trial court properly allowed or denied a jury to review evidence while in deliberations is the abuse of discretion standard. Taylor v. Progressive Sec. Ins. Co., 09-791 (La.App. 3 Cir. 4/7/10), 33 So.3d 1081, writ denied, 10-1024 (La. 9/17/10), 45 So.3d 1044.

IfiThis court, in Taylor, 33 So.3d at 1088, concisely addressed this issue, stating the following:

The Louisiana Fourth Circuit Court of Appeal considered a similar issue in Fowler v. Bauman, 95-145 (La.App. 4 Cir. 10/12/95), 663 So.2d 438. In determining that the trial court has discretion as to the items it provides to the jury, that court stated: “Although La.C.C.P. art. 1795(A) does use the mandatory word ‘shall,’ La.C.C.P. art. 1795(B), by use of the word ‘may,’ clearly gives the trial judge discretion to determine whether to provide the jury with requested items.” Id. at 443. We agree with the fourth circuit’s analysis of this issue.

Here, Lexington argues that the jury had a right to view the Petition for Damages because it was admitted into evidence without objection. This argument is misguided, as a trial court is quite clearly afforded discretion in determining whether to grant a jury’s request to view admitted evidence. Moreover, the reasoning of the trial court to deny the request in this case, the potential prejudice of the Petition for Damages without viewing the amended petition, is cited as such a reason to deny a jury’s request in the 1983 comment (a) wherein it states, “[t]he judge is to consider how helpful such an examination might be and the risk of misuse by the jury and possible prejudice to any party.” La.Code Civ.P. art 1794.

Here, as was the case in Taylor, the jury had an occasion to form its opinion of the Petition for Damages when it heard the Courvilles testify and be cross-examined about its contents. As such, we find no abuse of the discretion afforded to the trial court in its denying the jury to review the original Petition for Damages. Given the above, this assignment of error lacks merit.

LEXINGTON ASSIGNMENT OF ERROR NUMBER TWO:

In its second assignment of error, Lexington contends that the jury erred in finding Ross 100% liable for the Courvilles’ damages. We do not agree.

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La. 10/30/00), 773 So.2d 1 a670, 680-81, stated that the standard of review applicable to comparative fault determinations is as follows:
This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La.1/16/96); 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.
As such, it is clear that a fact finder’s allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). The findings of fact made by a jury will not be disturbed unless they are manifestly erroneous or clearly wrong. Id. “Absent ‘manifest error’ or unless it is ‘dearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La. 1990). “If the trial court or jury’s 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.” Id. at 1112,
The factors to consider in an appellate review of an allocation of fault were addressed by the Louisiana Supreme Court in Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967 (La.1985). Therein, the supreme court stated:
[Vjarious factors may influence the degree of fault assigned, including: (l)whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.
Id. at 974.

Thibodeaux v. Ace Amer. Ins. Co., 13-577, pp. 6-7 (La.App. 3 Cir. 11/27/13), 127 So.3d 132, 136-37.

|7“ ‘[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.’ ” Canter v. Koehring Co., 283 So.2d 716 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.”

Stobart, 617 So.2d at 883 (emphasis added).

In the case before us, Francis testified that as she approached the CVS pharmacy where she was to meet her daughter, she put her signal on and looked in her rear view mirror to make sure her path was clear. When she looked in her rearview mirror, she saw the Ross vehicle behind her. Just prior to making the turn, she slowed down and concentrated on turning into the CVS parking lot. As she began her turn, she felt an impact from Ross who she contends was passing her on the right where there is only a single lane of travel. Francis denied making any sudden or abrupt slowings or turns. She also testified that she did not look at her side mirror because she was not on a multilane highway and was not switching lanes to the right.

Contrarily, Ross testified that he was properly established in a “transition area” on Francis’ right when she suddenly slowed and turned into him. He stated that it was Francis’ vehicle that hit his truck while the two vehicles were side-by-side. Ross denied seeing Francis’ right turn signal.

Ryan Gonsoulin witnessed the accident. He was traveling behind Ross. He testified that the road was a two lane road where the accident took place. According to Gon-soulin, Ross accelerated while behind Francis and moved his vehicle to the right side of the single lane while Francis was in the middle of the lane. He stated that the impact occurred two to three seconds later.

IsAfter reviewing the record, we find the jury was not manifestly erroneous in allocating 100% fault to Ross. This finding is reasonable given the testimony of Francis and Francis’ expert in accident reconstruction, Richard Fox, who found that the accident was caused solely by Ross attempting to pass Francis on the right in a single lane of travel.

While there is evidence presented that Francis had some fault, it is contradicted by other evidence in the record. It is clear that the jury chose to give credence to one reasonable view of the evidence over another. Its choice cannot be manifestly erroneous. As such, this assignment of error lacks merit.

LEXINGTON ASSIGNMENT OF ERROR NUMBER THREE:

In its final assignment of error, Lexington avers that the trial court erred in not allowing it to present evidence to the jury of the Courvilles’ divorce proceedings resulting in excessive loss of consortium damages being awarded to Brooke Courville. We find no error by the trial court.

“The trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion.” Labarrera v. Boyd Gaming Corp., 13-629, p. 7 (La.App. 3 Cir. 1/30/14), 132 So.3d 1018, 1025, writ denied, 14-897 (La. 9/12/14), 147 So.3d 706. (citations omitted).

[T]he ‘law of the case’ refers to a policy by which the court will not, on a subsequent appeal, reconsider prior rulings in the same case. This policy applies only against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both parties, of affording a single opportunity for the argument and decision of the matter at issue.
Nevertheless, the law-of-the-case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt 19as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.

Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105, 107 (1971) (footnotes omitted).

Here, Lexington wanted to present evidence to the jury consisting of allegations made by Brooke Courville in the Cour-villes’ divorce proceedings as to the motivation behind her seeking a divorce. A motion in limine was decided prior to trial that addressed the admission of this evidence. The trial court found that the evidence was to be excluded. A writ was taken to this court on this very issue. This court denied the writ.

Lexington argues that the probative value of the evidence outweighed the potential prejudice of the evidence. This is tantamount to arguing that the previous ruling made by this court was incorrect. As such, we may exercise the law of the case doctrine and not reconsider this issue.

However, in this case, Lexington points out no evidence of how the $21,000.00 loss of consortium award in a matter involving a judgment in excess of $3,000,000.00 amounts to manifest injustice. The Cour-villes testified and were cross-examined regarding their divorce, and the jury heard this testimony. As such, we find no abuse of the trial court’s vast discretion on this matter.

COURVILLES’ ASSIGNMENT OF ERROR NUMBER ONE:

In their first assignment of error, the Courvilles maintain that the general damages awarded by the jury for Kodie Courville’s injuries were so low as to amount to an abuse of discretion. We disagree.

It is well-settled that vast discretion is accorded to the trier of fact in fixing general damage awards. La.Civ.Code art. 2324.1; Howard v. Union Carbide Corp., 09-2750 (La.10/19/10), 50 So.3d 1251. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to | inbe an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). “An appellate court may not overturn an award for damages unless it is so out of proportion to the injury complained of that it shocks the conscience.” Harrington v. Wilson, 08-544, p. 16 (La.App. 5 Cir. 1/13/09), 8 So.3d 30, 40.

Smith v. Guidroz, 12-1232, p. 15 (La.App. 3 Cir. 10/30/13), 125 So.3d 1268, 1278, writ denied, 13-2757 (La.2/14/14), 132 So.3d 962.

In the case before us, the medical records indicate that Kodie sustained injuries to his left shoulder, left hip, neck, thoracic spine, and lumbar spine. He underwent surgeries to his hip, shoulder, and cervical areas. There is also evidence in the record that he may have to undergo thoracic and lumbar surgery. Additionally, Kodie has been diagnosed with depression and pain disorder complex. It is quite clear that Kodie has endured a tremendous amount of pain and suffering. As such, if there were no factors present that could reasonably indicate that some of Kodie’s pain and suffering were not caused by this accident, the general damage award of $371,000.00 would likely be insufficient.

The evidence in the record establishes that Kodie was in four incidents subsequent to the November 18, 2008 accident. These incidents were three automobile accidents and a physical altercation. Kodie did testify that these incidents were not the source of any of his pain. Rather, Kodie maintained that the source of all his pain was the November 18, 2008 accident.

However, there is evidence in the record that makes it reasonable for the jury to give no credence to Kodie’s testimony that the November 18, 2008 accident was the sole source of his pain and suffering. After the November 18, 2008 accident, Kodie continued to work for six months. Thereafter, two months after a second vehicle accident, Kodie stopped working. It was also not until after that second vehicle accident that Kodie’s physician recommended additional treatment tojn Kodie’s neck. Approximately three years later, Ko-die was in a third vehicle accident. It was after that third accident that Kodie complained of neck pain for the first time in three years. Next, after a physical altercation with a roommate, Kodie reported an increase in pain to his treating physician. Finally, some years later, Kodie was involved in a fourth vehicle accident. After this final accident, Kodie reported back pain.

Given the standard of review and the contents of the record, we cannot say that the jury award of $371,000.00 for general damages was abusively low. The subsequent incidents could be found to cause some of Kodie’s pain and suffering. Thus, the jury’s general damage awards have a reasonable basis. Accordingly, we find no merit to this assignment of error.

COURVILLES ASSIGNMENT OF ERROR NUMBER TWO:

In their final assignment of error, the Courvilles assert that the trial court erred in its refusal to allow introduction into evidence of other individuals working in Kodie’s field of work, the Non-Destructive Testing Industry, and the amounts they earned in support of Kodie’s earning capacity loss claim. We find this assertion lacks merit.

As stated above, the standard of review is that “[t]he trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion.” Labarrera, 132 So.3d at 1025 (citations omitted).

First, we note that the Courvilles failed to proffer the evidence from one of the two individuals working in Kodie’s field, Jeremy Bellard. La.Code Civ.P.art. 1636(A) provides “[wjhen the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the 112evidence.” Without a proffer, there is no evidence for appellate court to review. Thus, any argument regarding Bellard’s testimony will not be considered, as there is nothing for this court to review.

Next, the trial court excluded the affidavit of Kodie Courville, the testimony of Mario Castro, and the damages summary prepared by economist John Theriot. Regarding Kodie’s affidavit, Kodie testified at trial regarding his training, certifications, and desires to start his own company in the future. Accordingly, the exclusion of his affidavit was merely excluding duplica-tive testimony. As such, it was not an abuse of discretion.

The trial court also excluded the testimony of Mario Castro, a contemporary of Kodie’s. He testified that he was earning twice the amount that the jury ultimately awarded Kodie for loss of earning capacity and future income. This testimony amounts to anecdotal evidence which is but a single sample not established to be an accurate reflection of earnings for the same position throughout the industry.

Economist John Theriot used Castro’s figure to reach a determination as to what Kodie would have earned. Thus, Theriot’s report is based on Castro’s single-sample, anecdotal evidence.

Contrarily, Kodie’s expert in vocational rehabilitation services, Ted Deshotels, testified at trial regarding Kodie’s loss of earning capacity. Deshotels testified to the industry standard in intricate detail as to how he reached his conclusions regarding Kodie’s loss of earning capacity. Thus, in reviewing the evidence, Castro and Theri-ot’s testimony was of lesser value in comparison to that which was given by Des-hotels who used recognized methods with a sample size that included compiled labor statistics.

|iaAs such, we cannot say that the trial court abused its vast discretion in excluding Castro and Theriot’s testimony as being speculative. One could reasonably find that their testimonies were not the best evidence on Kodie’s loss of earning capacity. Further, we cannot say that Kodie was prejudiced by their exclusion given that he presented to the jury his own expert’s opinion on the issue of his loss of earning capacity. Accordingly, we find no merit to this assignment of error.

DISPOSITION:

Lexington Insurance Company raises three assignments of error. We find no merit to any of these assignments. Kodie and Brooke Courville answer the appeal and raise two assignments of error. Again, we find no merit to these assignments. Accordingly, we affirm the judgment of the trial court and jury below. All costs of these proceedings are assessed to Lexington Insurance Company.

AFFIRMED.