author: WHIPPLE, C.J. McClendon, J.,

text:
    Linda Aranguren BALLEX, Individually and on Behalf of her Minor Child, Verna Maria Ballex v. MUNICIPAL POLICE EMPLOYEES’ RETIREMENT SYSTEM
    NUMBER 2016 CA 0905
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 18, 2017

      Robert Angelle, Metairie, LA, Counsel for Plaintiff/Appellee, Linda Ballex, individually and on behalf of her minor child, Verna M. Ballex ■
    Carlton Jones, III, Baton Rouge, LA System, Counsel for Defendant/Appellant, Municipal Police Employees’ Retirement
    BEFORE: WHIPPLE, C.J., GUIDRY and McClendon, jj.
   WHIPPLE, C.J.

|2In this appeal, the Municipal Police Employees’ Retirement System (“MPERS”) challenges the trial court’s judgment, which ordered it to pay plaintiff monthly survivor benefits from the date of death of her former husband for the remainder of her life and further awarded plaintiff one-half of the Deferred Retirement Option Plan (“DROP”) benefits received by her deceased former husband. Plaintiff has answered the appeal, seeking an amendment to the monthly figure in survivor benefits awarded to her, as well as interest from the date of judicial demand and attorney’s fees.

For the following reasons, we reverse in part, amend in part, and affirm in part as amended.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Linda Aranguren Ballex, married Chetley Michael Ballex on August 16, 2001. They had one daughter during their marriage, Verna Ballex, who was born on October 9, 2002.

Chetley was a member of the New Orleans Police Department, and, as such, he was also a member and participant of MPERS, a retirement system established for, among others, police officers employed by municipalities of the state of Louisiana. In May 2005, Chetley completed a Personal History Information Update form, designating Linda, his wife, as his beneficiary with MPERS, and in June 2005, he became eligible for retirement, after twenty-five years of service.

|sOn July 27, 2005, Chetley completed an application for DROP. On that application, Chetley listed Linda and Verna as his beneficiaries and selected the Maximum Plan as his retirement plan option, The Maximum Plan pays the largest monthly benefit to the retiree, but does not provide for a monthly benefit to the named beneficiary upon the retiree’s death. However, by letter dated July 28, 2005,- MPERS informed Chetley that because MPERS is a “qualified plan” under the Internal Revenue Code, see 26 U.S.C. § 401, et seq., a member’s spouse must consent to the selection of a retirement plan that does not provide a monthly benefit to the spouse after the member’s death of at least fifty percent of the-benefit payable to the retiree, pursuant to 26 U.S.C. § 417(a)(2)(A). Enclosed with the letter was a form entitled “Spouse’s Approval of Retirement Option Selected,” and the letter further informed Chetley that failure to return the completed form within ten days of the date of the letter would result in his benefit being computed under the Option 3 plan of retirement, which option provides the surviving spouse with a lifetime retirement benefit of 50% of the retiree’s benefit upon the death of the retiree. Chetley did not return the required “Spouse’s Approval of Retirement Option Selected” form and, instead, withdrew his DROP application. - -

|/Thereafter, on November 8, 2006, Chetley completed another DROP application, again selecting the Maximum Plan retirement option. He did not include the “Spouse’s Approval of Retirement Option Selected” form with his DROP application, falsely indicating instead on the application that he was divorced. Also on this application, he listed only his daughter Verna as his beneficiary. MPERS did not request a copy of a judgment of divorce or otherwise verify that Chetley was in fact divorced. Rather, relying solely on Chetley’s representation that he was divorced, MPERS processed Chetley’s application with his selection of the Maximum Plan retirement option without requiring or receiving a signed and notarized consent form from Linda, consenting to Chetley’s selection of a retirement plan that would pay no spousal benefit upon his death.

Chetley participated in DROP from December 10, 2006 until April 7, 2009. At the end of his DROP participation, Chetley had a balance of $91,551.37 in his DROP account. Chetley ceased working immediately after the expiration of the period of his DROP participation, and on April 7, 2009, he began receiving monthly retirement benefits under the Maximum Plan retirement option, in the amount of $3,280.27, which he continued to receive until his death in 2011.

The following month, on May 19, 2009, MPERS received a rollover request from Chetley, through which he requested that the entire balance in his DROP account be transferred from the MPERS system to an IRA with the Police and Firemen’s Insurance Association. The requested transfer took place on June 1, 2009, thereby removing all of Chetley’s DROP funds from the MPERS system.

On September 14, 2011, Chetley’s wife Linda called MPERS, at a time when, due to illness, Chetley was nearing death, to inquire about what | Bher benefits would be upon his death. At that time, she learned that, despite her lack of consent, Chetley had retired under the Maximum Plan retirement benefit, such that she would receive no retirement benefit upon his death. Taking the position that once the election of the Maximum Plan retirement option is made, the election is irrevocable, MPERS maintained that no change could be made to Chetley’s retirement plan option. Thus, upon Chetley’s death on October 10, 2011, Chetley’s monthly retirement benefit ceased, and MPERS did not pay Linda any monthly retirement benefit.

Thereafter, Linda instituted this suit, individually and on behalf of her minor child Verna, against MPERS, seeking all benefits to which she and Verna were entitled, as well as one-half of all DROP account funds attributable to Chetley’s employment and retirement contributions during his marriage to Linda. Linda also named as a defendant Kathy Bourque, the director of MPERS, contending that Bo-urque had breached her fiduciary duty to Linda and Verna by, inter alia, allowing Chetley to receive benefits under the Maximum Benefit plan without an affidavit showing Linda’s consent and allowing Chetley to change his beneficiary from her to his daughter, also without an affidavit evidencing her consent. Thus, she also sought judgment against Bourque for all benefits to which she and Verna would have been entitled, together with costs, interest, and attorney’s fees.

Following a trial on the merits, the trial court, in written reasons for judgment, found that Chetley had selected the Maximum Plan retirement option and MPERS had paid him benefits under that option, all without the consent of his wife, Linda, and that Chetley’s removal of Linda as a beneficiary to his retirement plan was without legal effect. Thus, the court Ificoncluded that Linda was entitled to benefits under the default retirement option, Option 3, as provided in MPERS’s member handbook. Because the court concluded that Chetley’s removal of Linda as a beneficiary was without legal effect, the court further concluded that it was unnecessary to address Linda’s claims of breach of fiduciary duty and MPERS’s statutory immunity defenses. In amended reasons for judgment, the court found that Linda also was entitled to one-half of the DROP benefits that had been paid to Chetley.

In accordance with its reasons, the trial court rendered judgment on February 2, 2016, in favor of Linda and against MPERS, awarding Linda the following amounts: $1,873.69 per month, representing one-half of the amount to which Chet-ley would have been entitled under the Option 3 retirement plan, as provided in the MPERS Member Handbook, retroactive to October 10, 2011, the date of Chet-ley’s death, and continuing for the remainder of Linda’s life; and $45,775.69, representing one-half of the DROP benefits received by Chetley. Regarding Linda’s claims of breach of fiduciary duty, the judgment provided that Linda’s claims against Kathy Bourque were dismissed, “the Court having found that the defendant Kathy Bourque as the Director of [MPERS] did not breach any fiduciary duty to the plaintiff .... ” In the judgment, the court declined to award Linda attorney’s fees and ordered each party to bear their own costs.

From this judgment, MPERS appeals, contending that the trial court erred: (1) in holding that the November 8, 2006 retirement application was without legal effect; (2) in failing to recognize MPERS’s statutory immunity under LSA-R.S. 9:2798.1; (3) in awarding Linda a spousal retirement benefit based upon what Chet-ley should have done on his November 8, 2006 retirement application; (4) in awarding Linda half of Chetley’s DROP 17account, which was legally withdrawn from MPERS in 2009; and, (5) alternatively, if Linda is entitled to judgment in her favor, resulting in the Maximum Plan being revoked and Option 3 implemented, in failing to grant a credit to MPERS for overpayments made to Chetley,

Thereafter, Linda filed an answer to appeal, contending that the trial court erred in failing to award her attorney’s fees, legal interest, and costs. She later filed a supplemental answer to appeal, contending that the trial court further erred in awarding an incorrect amount for the monthly spousal benefit, which she contends was “clearly a clerical error.”

In response to the supplemental answer to appeal, this court issued a rule to show cause order, wherein it noted, upon examination of the record, that the supplemental answer to appeal appeared to have been filed untimely. Thus, this court ordered the parties to show cause by briefs as to whether the supplemental answer to appeal should be dismissed as untimely. Ballex v. Municipal Police Employees’ Retirement System, 2016-0905 (La. App. 1st Cir. 8/29/16). By subsequent order of this court, the rule to show cause was referred to the panel to which the appeal is assigned. Ballex v. Municipal Police Employees’ Retirement System, 2016-0905 (La. App. 1st Cir. 11/15/16).

LEGAL EFFECT OF CHETLEY’S NOVEMBER 8, 2006 SELECTION OF THE MAXIMUM BENEFIT RETIREMENT PLAN AND LINDA’S ENTITLEMENT TO A RETIREMENT BENEFIT

(Assignments of Error Nos. 1, 2 & 3)

In its first and third assignments of error, MPERS contends that the trial court erred -in concluding that .Chetley’s November 8, 2006 retirement application, through which he falsely asserted that he was divorced and selected the Maximum Plan retirement option without the consent of hislswife Linda, was without legal effect and, thus, in awarding Linda a monthly spousal retirement benefit.

MPERS is a retirement system established by the Louisiana Legislature for the purpose of providing retirement benefits for municipal policemen in Louisiana. LSA-R.S. 11:2211(A). The evidence of record establishes that MPERS' is also a “qualified” plan under section 401 of the Internal Revenue Code, 26 U.S.C. § 401, entitled “Qualified pension, profit-sharing, and stock bonus plans.” A-trust forming part of an employee benefit plan and satisfying the requirements of 26 U.S.C. § 401, et seq., constitutes a qualified trust that entitles the employer and plan participants to certain tax benefits. See 26 U.S.C. §§ 402(a)s 404, & 601(a); see also Trebotich v. Commissioner of Internal Revenue, 492 F.2d 1018, 1024 n.11 (9th Cir. 1974). One of the requirements of a “qualified” trust' forming part of such a plan under 26 U.S.C.- § 401 is that the trust pay a lifetime survivor benefit to the surviving spouse of a participant who has become vested in a pension plan prior to retirement, unless the plan participant elects to waive the survivor benefit. See 26 U.S.C. §§- 401(a)(1 1) & 417(a)(1). This annuity benefit, which combines a benefit payable for the life of the plan participant with a survivor annuity of not less than 50 percent of plan'participant’s annuity, payable for the life of the spouse, is referred to as á “qualified joint and survivor annuity.” 26 U.S.C.' §§ 401(a)(ll) & 417(b). Because MPERS is an employee benefit plan that is a “qualified” plan under 26 U.S.C. § 401 et seq., it is required to provide such a joint and survivor annuity to the spouses of its members, unless validly waived.

Under the Internal- Revenue Code provisions, a plan participant may elect to waive the qualified joint and survivor annuity. 26 U.S.C. § 417(a)(1)(A)®. However, such an -election shall not take effect unless the | ^participant's spouse has effectively consented to such waiver. See 26 U.S.C. §§ 401(a)(ll) and 417(a)(2). Specifically, 26 U.S.C. § 417(a)(2) provides, as it did at the time Chetley entered into DROP and selected the Maximum Plan retirement option with no survivor benefit for his spouse Linda, as follows: ■

(2) Spouse must consent to election.—Each plan shall provide that an election under paragraph (l)(A)(i) shall not take effect unless—
(A) (i) the spouse of the participant consents in writing to such election, (ii) such election designates a beneficiary (or a form of benefits) which may not be changed without spousal consent (or the consent of the spouse expressly permits designations by the participant without any requirement of further consent by the spouse), and (iii) the spouse’s consent acknowledges the effect of such election and is witnessed by a plan representative or „a notary public, or
(B) it is established to the satisfaction of a plan representative that the consent required under subparagraph (A) may not be obtained because there is no spouse, because the spouse cannot be located, or because of such other circumstances as the Secretary may by regulations prescribe.
Any consent by a spouse (or establishment that the consent of a spouse may not be obtained) under the preceding sentence shall be effective only with respect to such spouse.

(Emphasis added). Thus, pursuant to section 417(a)(2), where a plan participant is married, the participant's election to waive the qualified joint and survivor annuity is ineffective without the spouse’s written consent, which is witnessed by a plan representative or a notary public and acknowledges the effect of the plan participant’s election. See Edelman v. Smith Barney, Inc., 55 F.Supp.2d 218, 221-223 (S.D. New York 1999), and In re Lefkowfe, 767 F.Supp. 501, 506 (S.D, New York 1991).

In conformity with 26 U.S.C. § 417(a)(2), the MPERS Member Handbook in effect at the time Chetley completed his DROP application and |1flattempted to select the Maximum Plan retirement option without Linda’s written consent provided as follows:

J. CONSENT OF SPOUSE TO SELECTION OF RETIREMENT OPTION
Retiring members must either select an option that provides at least fifty percent (50%) of the benefit payable to the retiree’s spouse or obtain the spouse’s consent to select some other option or beneficiary. Options 2, 2a, 3 and 3a meet this requirement, provided the spouse is the named beneficiary. The retiree may select the Maximum plan or Option 1 or name another individual as beneficiary, only if the spouse agrees with the choice and provides an affidavit to substantiate such agreement.

(Emphasis added).

It is undisputed herein that Linda never executed the required spousal consent allowing Chetley to waive the qualified joint and survivor annuity and choose the Maximum Plan retirement option. Accordingly, his selection of the Maximum Plan retirement option was without legal effect, and Linda is entitled to the qualified joint and survivor annuity in the form of a monthly benefit of 60% of Chetley’s monthly benefit as calculated under Option 3, payable from the time of Chetley’s death and continuing until Linda’s death, which represents the minimum spousal benefit required by the Internal Revenue Code for a “qualified” trust. 26 U.S.C. §§ 401(a)(ll) & 417(b).

Moreover, MPERS’s suggestion that the fact that Chetley’s actions in falsely asserting that he was divorced when selecting the Maximum Plan retirement option without the consent of his wife Linda somehow negates Linda’s entitlement to a monthly benefit upon his death is without merit. Section 417(a)(2) mandates that Chetley’s selection of the Maximum Plan retirement option, which provided for ho survivor benefit for Linda, “not take effect” unless,.the spouse gives the required written consent or “it is ^^established to the satisfaction of a plan representative” that the, required consent may not be obtained because, among other things, “there is no spouse.” 26 U.S.C. § 417(a)(2)(B). In the instant case, despite the fact that MPERS had on file information that Chetley. was married, the ' MPERS director, Katherine Bourque, testified that when she received Chetley’s subsequent DROP application on November 13, 2006, indicating that he was divorced, she simply took Chetley’s word that he was in fact divorced. In accordance with MPERS’s practice at the time, she did not require that Chetley submit a copy of a judgment of divorce to establish his marital status at the time he applied for DROP. Under the facts herein, we conclude that MPERS’s mere reliance on Chetley’s representation that he was divorced without any supporting documentation does not satisfy the requirements of 26 U.S.C. § 417(a)(2)(B) that the plan representative “establish[] to [her] satisfaction” that spousal consent is not required because there is no spouse.

Finally, -with regard to MPERS’s contention in its second assignment of error that the trial court erred in failing to recognize its statutory immunity pursuant to LSA-R.S. 9:2798.1, we likewise find no merit to this argument. Louisiana Revised Statute 9:2798.1 provides that liability shall not be imposed on public entities or then-officers for “policymaking or discretionary acts” in “the course and scope of their lawful powers and 11gduties” unless, among other exceptions, the acts or omissions constitute “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” LSA-R.S. 9:2798.1(B) & (C)(2). MPERS avers on appeal that because the actions taken by MPERS with regard to Chetley’s retirement were official acts, Linda had to show that MPERS committed gross negligence to overcome the immunity afforded to MPERS by LSA-R.S. 9:2798.1.

However, we note that while LSA-R.S. 9:2798.1 protects a public entity and its officers and employees from liability for negligence claims, see Gleason v. NUCO, Inc., 99-2954 (La.App. 1 Cir. 12/22/00), 774 So.2d 1240, 1242, the award in favor of Linda herein is not based on a damage award for negligence on the part of MPERS or its officers. Rather, it is merely a determination of her eligibility for and entitlement to a survivor benefit based on her ex-husband’s membership in and retirement with MPERS and based on the lack of her written consent to a waiver of that benefit, as required by both the Internal Revenue Code and the MPERS Member Handbook.

For these reasons, we find no error in the trial court’s conclusion that Chetley’s selection of the Maximum Plan retirement option, leaving no spousal benefit for Linda upon his death, was without legal effect given that Linda did not consent in an affidavit to Chetley’s attempt to waive her spousal benefit.

Accordingly, assignments of error numbers one, two, and three have no merit.

11;,LINDA’S ENTITLEMENT TO ONE-HALF OF THE DROP ACCOUNT PROCEEDS

(Assignment of Error No. 4)

In this assignment of error, MPERS contends that the trial court erred in awarding Linda one-half of the value that Chetley’s DROP account had at the time he withdrew his DROP funds from MPERS. We agree.

As set forth above, at the end of his DROP participation on April 7, 2009, Chet-ley had a balance of $91,551.37 in his DROP account. Thereafter, on June 1, 2009, MPERS transferred the entire balance in Chetley’s DROP account to an IRA account Chetley had established with the Police and Firemen’s Insurance Association, pursuant to a rollover request MPERS had received from Chetley on May 19, 2009. Once this transfer was achieved, all of Chetley’s DROP funds were removed from the MPERS system.

Pursuant to LSA-R.S. 11:2221(H), upon termination of employment at the end of the member’s DROP participation, the DROP participant “shall receive, at his option, a lump sum payment from the account equal to the payments to the account, or a true annuity based upon his account, or he may elect any other method of payment if approved by the board of trustees.” (Emphasis added). Importantly, a DROP participant’s beneficiary has no right to direct the method in which the participant’s DROP funds are received during the life of the participant. See LSA-R.S. 11:2221(H) & (I)(Z). Moreover, we note that pursuant to LSA-C.C. art. 2346, “[e]ach spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law.”

In the instant case, Chetley and Linda were married at the time of his retirement and at the time the entirety of his DROP funds were lawfully and validly transferred out of MPERS at Chetley’s' direction. Thus, at the time 114of his death, there were no DROP funds being held by MPERS on behalf of Chetley. Thus, we must conclude that the trial court erred in ordering MPERS to reimburse Linda one-half of the balance of Chetley’s DROP account funds at the time he withdrew those funds from MPERS. Accordingly, that portion of the judgment must be reversed.

MPERS’S ENTITLEMENT TO A CREDIT FOR OVERPAYMENT OF BENEFITS

(Assignment of Error No. 5)

In its final assignment of error, MPERS contends that if Linda is in fact entitled to a spousal retirement benefit, resulting in the Maximum Plan retirement option being revoked and Option 3 implemented, then the trial court erred in failing to extend a credit to MPERS for over-payments it made to Chetley from the time of his retirement until his death. We find no merit to this argument.

At the outset, we note that MPERS did not assert its right to such a credit in its answer below. A defendant’s entitlement to a credit is an affirmative defense, which must be specifically pleaded in the defendant’s answer. LSA-C.C.P. arts. 1003 & 1005; Hogan v. State Farm Automobile Insurance Company, 607 So.2d 747, 751 (La. App. 1st Cir. 1992). Because the issue of MPERS’s entitlement to a credit for any overpayments it made to Chetley was not raised in its answer, we conclude that, even assuming that such a credit for over-payments to Chetley could be applied to sums owed to Linda, the trial court did not err in failing to grant a credit to MPERS herein.

ANSWER AND SUPPLEMENTAL ANSWER TO APPEAL

I. Timeliness of Supplemental Answer to Appeal

Before addressing the issues raised by Linda in answer to MPERS’s appeal, we first address the show cause order issued by this court on August 29, 2016, as to whether her supplemental answer to appeal should be | ^dismissed as untimely. Louisiana Code of Civil Procedure article 2133 provides that where an appellee desires to have the judgment on appeal modified, revised, or reversed in part, the ap-pellee “must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later.” The record reflects that Linda timely filed an answer to MPERS’s appeal, seeking attorney’s fees, interest, and costs. Thereafter, more than fifteen days after the passage of the date on which the record was lodged, Linda filed a supplemental answer to the appeal, seeking amendment of the amount of the monthly retirement benefit awarded in her favor, which later filing prompted this court to issue the show cause order.

In response to this court’s show cause order, Linda acknowledged that the supplemental answer to appeal was filed after the fifteen-day period for answering the appeal had lapsed. However, she notes that in the past, this court, out of fairness to the litigants, has allowed the filing of a supplemental answer to appeal after the delay has expired. Moreover, in its response to this court’s show cause order, MPERS stated that it did not object to the filing of the August 22, 2016 supplemental answer to appeal.

In Eschete v. Gulf South Beverages, 442 So.2d 556, 558-560 (La. App. 1st Cir. 1983), the appellant sought to dismiss the appellee’s supplemental answer to appeal, where the appellee’s answer to appeal was timely, but the subsequently filed supplemental answer to appeal was outside of the fifteen-day period set forth in LSA-C.C.P. art. 2133. In denying the appellant’s motion to dismiss the supplemental answer, this court reasoned as follows:

While it is generally true that where an answer to an appeal is filed more than 15 days after the record is lodged with the appellate court it will be considered as untimely, [^nevertheless, we think fairness requires the consideration of plaintiffs supplemental answer in this case. First, it must be remembered that the appellee filed his original answer timely, thereby placing defendant on notice that plaintiff was not satisfied with at least some portions of the trial court’s judgment. Second, appellee’s supplemental answer does not raise any issue that appellant has not been aware of, or has not prepared for, since the inception of this case. Third, since the supplemental answer was filed in March of 1983, and this case was not placed on the docket until October of 1983, defendant has had ample opportunity to address the issue raised in appellee’s supplemental answer. Thus, we think that where an ap-pellee timely files an answer to an appeal, later supplements that answer more than 15 days after the return date with leave of court, but raises no new issues and affords an appellant ample time within which to . respond to the supplemental answer, then pursuant to the powers vested in the court by La. C.C.P. art. 2164, it is both just and efficient to consider the supplemental answer.

Eschete, 442 So.2d at 559.

In the instant case, as in Eschete, Linda’s original answer to appeal was timely filed, thereby placing MPERS on notice that she was seeking revision or amendment of the trial court’s judgment. Additionally, the issue as to the correct figure to which Linda would be entitled in monthly benefits under Option 3 was an issue addressed at trial, and the supplemental answer to appeal was filed months before this matter was placed on the docket of this court, allowing MPERS ample time to address this issue. Moreover, we note that MPERS has indicated that it does not object to the filing of the supplemental answer to appeal. Considering these factors, we conclude that MPERS is not prejudiced in any way by the filing of the supplemental answer to appeal, and we further find that fairness dictates that we consider the supplemental answer herein. See LSA-C.C.P. art. 2164 & Eschete, 442 So.2d at 559. Accordingly, we recall the August 29, 2016 show cause order and now address the merits- of Linda’s answer to appeal and supplemental answer to appeal.

117II. Merits of Answer and Supplemental Answer to Appeal

In Linda’s supplemental answer to appeal, she contends that the amount of her monthly retirement benefit awarded in the judgment is incorrect. Linda contends that the amount awarded in the trial court’s judgment should be amended “inasmuch as the uncontradicted testimony of [MPERS’s] director established that the correct amount was $1,558.16 per month rather than $1,373,69 per month....” We agree.

MPERS director Bourque testified at trial that where a member selects the Maximum Plan retirement option, but does not timely submit the required spousal consent, MPERS calculates the retirement benefit under Option 3, the option that provides the minimum spousal benefit required by the Internal Revenue Code and the MPERS Member Handbook. She further testified that based on her calculations, under Option 3, Chetle/s monthly benefit would have been $3,106.31, and the beneficiary amount upon his death would have been $1,553.16 per month. Based on this uncontradicted testimony, we will amend the trial court’s judgment accordingly.

Turning next to Linda’s contention in her answer to appeal that the trial court erred in failing to award her attorney’s fees, we note that under Louisiana law, attorney’s fees are not allowed except where authorized by statute or contract. Dipaola v. Municipal Police Employees’ Retirement System, 2014-0037 (La.App. 1 Cir. 9/25/14), 155 So.3d 49, 52, writ denied, 2014-2575 (La. 2/27/15), 159 So.3d 1071. Linda’ contends that she is entitled to an award of attorney’s feds pursuant to LSA-R.S. 11:264.7. This statute is contained within thé subpart of the provisions governing consolidated public retirement systems that specifically addresses the governing of fiduciary responsibilities and investments of those who exercise, discretionary authority or discretionary control with respect to the [ 1sasset management of public retirement or pension systems, funds, and plans in order to maintain, the fiscal integrity of these plans. LSA-R.S. 11:261; Dipaola, 155 So.3d at 52-53. Pursuant to LSA-R.S. 11:264.7(A) and (C), a member or beneficiary of such a retirement system “may bring a civil action to enforce the provisions of this. Subpart,” and if the member or beneficiary prevails, he or she “shall be awarded reasonable attorney fees and other costs of litigation.” • ,

.In the instant case, Linda alleged in her supplemental and amending petition that Bourque, a fiduciary of MPERS as defined in LSA-R.S.- 11:261 et seq., breached her fiduciary duties to Linda, thus entitling Linda to an award of attorney’s fees pursuant to LSA-R.S. 11:264.7. Moreover, in her appellate brief, Linda’s argument in support of an attorney’s fees award also focuses on Bourque’s alleged breaches of'her fiduciary'duty to Linda. However, we note that the trial court’s judgment dismissed with prejudice Linda’s claims against Bourque, specifically finding that “Kathy Bourque as the Director, of [MPERS] did not breach any fiduciary duty to the plaintiff,” a ruling that Linda has not challenged on appeal.

Thus, pretermitting whether this action constitutes an action to enforce the provisions of LSA-R.S. 11:261 et seq., see Dipaola, 155 So.3d at 53 (noting that where the plaintiff had alleged that MPERS and its employees had negligently and arbitrarily reduced his retirement benefits, there was “no allegation that MPERS, or any individual associated with MPERS, breached any fiduciary duty related to the investment or management of MPERS’ 11sfunds and/or assets”), or whether Bo-urque is a “fiduciary” within the meaning of LSA-R.S. 11:264, we conclude Linda cannot establish her entitlement to attorney’s fees herein where she has not challenged or assigned error to the trial court’s dismissal of her breach of fiduciary duty claim asserted against Bourque.

Turning to Linda’s contention that the trial court erred in failing to award legal interest on the sums she was awarded, LSA-C.C.P. art. 1921 provides that “[t]he court shall award interest in the judgment as prayed for or as provided by law.” Because Linda specifically prayed for legal interest in her original petition, the trial court erred in failing to award it. See Guidroz v. State, Through Department of Transportation and Development, 94-0253 (La.App. 1 Cir. 12/22/94), 648 So.2d 1361, 1371. Thus, the judgment will be amended accordingly to reflect an award of interest as follows: on all sums due prior to October 24, 2012, the date of judicial demand, from October 24, 2012, until paid; and for all sums due after October 24, 2012, from the date due until paid. See LSA-C.C. art. 2000 (“[w]hen the object of the perform-anee is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500...”).

Finally, with regard to Linda’s contention that the trial court erred in ordering that each party would bear their own court costs, we find no merit to this argument. To the extent that Linda relies upon LSA-R.S. 11:264.7, regarding clams for breach of fiduciary duties in the management and investment of public retirement funds, to support her claim for court costs, we conclude that, for the same reasons that she could not establish her entitlement to attorney’s fees under this statute, she likewise cannot establish Loher entitlement to court costs on that basis. Moreover, pursuant to LSA-O.C.P. art. 1920, the general codal provision regarding the award of costs, “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” While the general rule is that the party cast in judgment should be assessed with court costs, the trial court may assess costs in any equitable manner and against any party in any proportion it deems equitable, even against the party prevailing on the merits. Upon review, an appellate court will not disturb the trial court’s fixing of costs absent an abuse of the sound discretion afforded the trial court. Bourg v. Cajun Cutters, Inc., 2014-0210 (La.App. 1 Cir. 5/7/15), 174 So.3d 56, 73-74, writs denied, 2015-1306, 20151253 (La. 4/4/16), 190 So.3d 1201, 1205. Considering the particular facts of this case, we find no abuse of the trial court’s sound discretion in ordering each party to bear their own costs.

CONCLUSION

For the above and foregoing reasons, the August 29, 2016 Rule to Show Cause Order issued by this court is recalled, and Linda Ballex’s supplemental answer to appeal is maintained. The portion of the trial court’s February 2, 2016 judgment ordering the Municipal Police Employees’ Retirement System to pay plaintiff, Linda Ballex, $1,373.69 per month from October 10, 2011, and continuing for the remainder of her life, is hereby amended to provide that the amount of the monthly award is $1,553.16, and as amended, this portion of the judgment is affirmed. The portion of the judgment awarding plaintiff $45,775.69, representing one-half of the DROP benefits that were received by the decedent, Chetley M. Ballex, is reversed. The judgment is further amended to award plaintiff legal interest on all sums due on or before the date of judicial demand, October 24, 2012, from that 1 ⅞1 date until paid, and for all sums due after October 24, 2012, from the date due until paid. In all other respects, the judgment is affirmed.

Costs of this appeal in the amount of $1,943.50 are assessed equally against Linda Ballex and the Municipal Police Employees’ Retirement System.

RULE TO SHOW CAUSE ORDER RECALLED; JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART, AND, AS AMENDED, AFFIRMED IN PART.

McCLENDON, J. concurs and assigns reasons.

McClendon, J.,

concurring in part.

hi concur in the majority’s decision to consider appellee’s supplemental answer to the appeal given the specific circumstances presented and the fact that MPERS has no objection to same.

      . See LSA-R.S. 11:2211 etseq.

      . Through DROP, an eligible member, in lieu of terminating employment and receiving a retirement benefit, may elect to continue to work for a period not to exceed three years and have the monthly retirement benefit that would have otherwise been payable to him paid into the DROP account. Upon the termination of employment, the deferred benefits paid into the fund are payable to the member in one of the approved methods of payment, and the monthly benefits that were being paid into the fund during DROP participation begin being paid to the retired member. See LSA-R.S. 11:2221.;

      .Consistent with the requirements of 26 Ü.S.C. § 417(a)(2)(A),' the MPERS Member Handbook in effect at the time also provided as follows:
      Retiring members must either select an option that provides at least fifty percent (50%) of the benefit payable to the retiree's spouse or obtain the spouse's consent to select some other option or beneficiary. Options 2, 2a, 3 and 3a meet this requirement, provided the spouse is the named beneficiary. The retiree may select the Maximum plan or Option 1 or name another individual as beneficiary, only if the spouse agrees with the choice and provides an affidavit to substantiate such agreement.

      . The day after, by judgment dated September 15, 2011, Chetley and Linda Ballex were divorced. According to Linda, she had filed the divorce proceeding in May 2010, but it had been put "somewhat” on hold because Chet-ley had become ill.

      . The information MPERS had on file included a May 11, 2005 Personal History Information Update form from Chetley designating his wife Linda Ballex as his beneficiary and a prior .DROP application Chetley had submitted slightly more than a year before he entered DROP, on which he indicated that he was married and yet still attempted to select the Maximum Plan, retirement option with no accompanying spousal consent (an application that he withdrew upon being informed that Linda’s written consent was needed for the selection made).

      . Indeed, Bourque acknowledged that even a judgment of divorce would be insufficient to determine an ex-spouse's entitlement to his or her share of retirement benefits and that a judgment of partition dividing the retirement benefits would be necessary for such a determination.

      . Moreover, to the extent that Linda’s claim against Bourque for breach of fiduciary duty could be classified as a negligence claim, see generally Beckstrom v. Parnell, 97-1200 (La. App. 1 Cir. 11/6/98), 730 So.2d 942, 947-948 (on rehearing), we note that the trial court’s judgment dismissed Linda’s claim against Bo-urque and that portion of the judgment has not been challenged on appeal.

      . Although, as previously, noted in the Facts and Procedural History, the trial court stated in its written reasons for judgment that it was unnecessary to address Linda’s claims of breach of fiduciary duty, the judgment itself dismisses those claims on a finding that Bo-urque did not breach any fiduciary duty to Linda. Where there is a conflict between the judgment and the reasons for judgment, the judgment prevails. See Watts v. Aetna Casualty and Surety Company, 574 So.2d 364, n.1 366 (La. App 1st Cir.), writ denied, 568 So.2d 1089 (La. 1990).


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    STATE of Louisiana v. Ronald GROSS
    2016KA1168
    Court of Appeal of Louisiana, First Circuit.
    APRIL 18, 2017

      Jeff Landry, Attorney General, Soncer-ee Smith Clark, Assistant Attorney General, Baton Rouge, Louisiana, Counsel for Appellee, State of Louisiana
    Michael Thiel, Hammond, Louisiana, Counsel for Defendani/Appellant, Ronald Gross
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

|2The defendant, Ronald Gross, was charged by bill of information with molestation of a juvenile (thirteen years or older but not yet seventeen), a violation of LSA-R.S. 14:81.2. The defendant pled not guilty and waived his right to a jury trial. The trial court adjudged the defendant guilty as charged. The defendant was sentenced to one year of imprisonment at hard labor. The defendánt now appeals, designating four assignments of error. For the following reasons, we affirm the conviction, but we vacate the one-year sentence and remand this matter to the trial court for resentencing.

FACTS

A.D. had just recently learned that the defendant was her biological father and had started staying at the defendant’s house in Tickfaw on summer weekends. On June 3, 2012, A.D., who was sixteen years old at the time, and her friend, A.H. (a seventeen-year-old female), slept over at the defendant’s house. A.D.’s half-sister, A.G. (around nine years old at the time), was also at the house that night. At about 8:00 p.m., all three of the girls were in the defendant’s bedroom, with the defendant, watching television. The defendant and A.D. were lying on the bed. A.D. was wearing pajama shorts and a sports bra. At some point, A.H. got a call on her cell phone and left the room. Shortly thereafter, A.G. also left the bedroom.

According to the testimony of the victim, the defendant then began rubbing A.D.’s back. The defendant moved his hand inside of A.D.’s shorts and began rubbing and grabbing her buttocks. The defendant pulled out his penis, pulled down A.D.’s shorts, and pulled A.D. close to him so that his penis was on her stomach. A.G. came back into the bedroom to get the defendant’s cell phone. When A.G. left the bedroom, A.D. got off the bed and also left the bedroom. A.D. went to a back room, looking for her friend and little sister. Realizing no one was in that room, A.D. headed for the kitchen, which required her to pass by the defendant’s bedroom. As A.D. passed his room, the defendant grabbed her and tried to take her into the “bible study” room, but |aA.D. resisted. The defendant then pulled A.D. back into his bedroom, bent her over his bed, and started kissing her and licking her neck. A.G. again walked into the bedroom and handed the defendant his cell phone due to his receiving a call.

A.D. left the bedroom and found A.H. in the kitchen. A.D. took A.H. outside and told her what had just happened. AD. called her ■ mother, and A.H. called the police, who arrived shortly thereafter. The defendant testified at trial and denied the allegations and any wrongdoing.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the trial court erred in denying his motion for a mistrial. Specifically, the defendant contends he was entitled to a mistrial because of the prosecutor’s reference to acts of molestation, other than the acts that occurred initially, in her opening statement.

The defendant had been a bailiff for the 21st Judicial District Court. Accordingly, the Tangipahoa District Attorney’s Office recused itself from this matter. The Attorney General’s Office took over and prosecuted the case. In part of her opening statement, the prosecutor described the few moments when the defendant allegedly molested his daughter A.D. In particular, the prosecutor stated:

He touched her in her vaginal area. He removed his penis and displayed that to [A.D.] and he tried to engage her in sexual intercourse. When she got up and walked away, he pursued her and tried to engage her in inappropriate lewd and lascivious acts a couple of more times while they were in the house. She was able to divert him. She was able to get away from him.

At the conclusion of the prosecutor’s opening statement, defense counsel objected to the prosecutor’s alleged references to other crimes evidence for which defense counsel had been provided no notice. According to defense counsel, in addition to the defendant’s touching A.D. in the vaginal area and exposing his penis—the alleged facts that defense counsel knew about—the prosecutor “referenced a cou-pie of other situations that apparently happened either outside of that location and somewhere else in the house or are supplemental and additional acts of alleged criminal conduct.”

To this allegation, the prosecutor responded:

14Your Honor, in my opening statement I made reference to him pursuing her in other rooms after the initial incident that took place in the bedroom. I have no intention of introducing anything that was not included in the discovery that was provided. She spoke to the police officers about him pursuing her in other rooms. She also spoke in the police report about the fact that she had gone to her friend immediately afterward and what she told her friend.

The trial court noted defense, counsel’s objection and informed him the court will “listen to the evidence and we’ll cross that bridge when we get to it.”

We note initially that defense counsel did not move for a mistrial. He merely objected to what he alleged was reference to other crimes evidence that he had not been provided in discovery. In her opening statement, however, the- prosecutor explained A.D.’s movements throughout the house as she tried to get away from the defendant who kept grabbing her. In other words, the prosecutor described a continuous transaction of events that lasted a few minutes at most and constituted a single event of molestation of a juvenile. Thus, even if the prosecutor in her opening statement had referenced other specific acts of the defendant, which she did not, such other crimes evidence would have been admissible as conduct that constituted an “integral part” of the act or transaction, and for which the defendant was not entitled to notice. See LSA-C.E. art. 404(B)(1); State v. Craddock, 435 So.2d 1110, 1117-18 (La.App. 1 Cir. 1983) (finding the acts of the defendant immediately before and after the death of the victim, which occurred within a span of 30 to 45 minutes, established events comprising the res gestae and, as such, no notice was required and the evidence was properly admitted). See also State v. Qdenbaugh, 10-0268 (La. 12/6/11), 82 So.3d 215, 250-52, cert. denied, 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012); State v. Taylor, 01-1638 (La. 1/14/03), 838 So.2d 729, 740-45, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).

Finally, we note that the only allegation as to other crimes evidence'was regarding the prosecutor’s comments made in her opening statement during a bench trial, and no other crimes evidence was introduced at trial. Accordingly, the defendant has shown no prejudice. A judge, unlike a jury, by virtue of the judge’s training and knowledge of the law is fully capable of disregarding any impropriety. State v. Anderson, 02-273 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, 521, writ denied, 02-2519 (La. 6/27/03), 847 So.2d 1254, See State v. Mahogany, 07-360 (La.App. 5 Cir. 10/30/07), 970 So.2d 1150, 1155-57.

For the foregoing reasons, this assignment of error is without merit.

ASSIGNMENTS OF ERROR . NOS. 2 and 3

In these related assignments of error, the defendant argues, respectively, the trial court erred in denying his motion for mistrial and his motion for continuance, both for the State’s failure to turn over potentially exculpatory evidence, namely the Children’s Advocacy Center (CAC) tape.

It is well settled that the State has an affirmative duty to disclose exculpatory evidence favorable to the defendant. Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). But in order to prove a Brady violation, the defendant must establish, inter alia, that the evidence in question was, in fact, exculpatory or impeaching. State v. Garrick, 03-0137 (La. 4/14/04), 870 So.2d 990, 993 (per curiam). Disclosure of exculpatory evidence should be made in time to allow a defendant to make effective use of such information in the presentation of his case. State v. Prudholm, 446 So.2d 729, 738 (La. 1984). In order to be entitled to a reversal for failure to timely provide exculpatory information, the defendant must show that he was prejudiced. Discovery violations do not provide grounds for reversal unless they have actually prejudiced the defendant. Garrick, 870 So.2d at 993.

A mistrial may be ordered when there is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law. LSA-C.Cr.P. art. 775(3). A mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. In addition, a trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. State v. Smith, 418 So.2d 515, 522 (La. 1982). See State v. Berry, 95-1610 (La.App. 1 Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. A reviewing court in Louisiana should not reverse a defendant’s conviction and sentence unless the error has affected the substantial rights of the accused. See LSA-C.Cr.P. art. 921.

Detective Beth Russell, with the Tangi-pahoa Parish Sheriffs Office, was the lead | ^detective on A.D.’s case. On cross-examination at trial, Detective Russell testified that she had interviewed A.D. and recorded the interview. Defense counsel learned from Detective Russell on cross that A.D. had undergone a forensic interview at the CAC on June 21, 2012. Detective Russell explained that because of A.D.’s age—over the age of fourteen—there would be an audio recording of the interview. However, the detective did not have the CAC interview and further informed defense counsel that the interview had not been transcribed. According to Detective Russell, “[t]hat was around the point in time that the Sheriffs Office quit transcribing the tapes.” The CAC tape, thus, was not in possession of the State, but was still with the transcriber. Detective Russell did not reference the CAC interview in any of her reports.

At this point, defense counsel moved for a mistrial. He argued that the CAC tape “clearly had evidentiary value” and that he was not provided the tape in discovery, despite his request. Defense counsel contended he had a right to know of the existence of the CAC tape and then to “have an opportunity to examine it in preparation for cross-examination of the alleged victim in this case.”

The prosecutor responded:
Your Honor, at the time that discovery was propounded upon the State, we provided everything that we had in our possession. The State has no copy of a CAC transcript in its record. We have no copy of any type of recording from them in our file. We have no intention of calling anyone from [the CAC] to the stand today at trial. I mean, the defense indicated that they were satisfied with the discovery that they were provided with at the time that we provided discovery. I would object to the mistrial, motion for mistrial.
Defense counsel replied:
Judge, and in no way, shape or form am I trying to lay blame, and I certainly don’t blame the State because if they weren’t aware of it they can’t give it to me. But there is an analogy here it’s kind of like asking the fox to guard the hen house. Even though they don’t know about it, if law enforcement knows about it and they do not disclose it to the State and in particular it is an item of substantive evidence such as a CAC tape, then unfortunately the State has to bear the negative inference of that and in this case I think the only appropriate remedy is that of a mistrial. It could have affected our entire approach in this case. My client waived a jury on the basis that we didn’t have such a tape. And maybe the State doesn’t intend to use it in lieu of the testimony of the victim, but that’s not the only issue because the Code of Criminal Procedure says either side may present that tape into evidence. But we can’t present it if we haven’t had |7a chance to review it and if we haven’t had a chance to determine whether it contains exculpatory information and to use it in preparation for cross-examination of the victim.

(R. p. 69)

The trial court saw no need to grant a mistrial, but suggested he may grant a continuance to allow defense counsel to obtain a copy of the CAC tape and to listen to or view it. The trial court then granted about a 90-minute recess to allow Detective Russell to obtain the CAC tape. The trial court then stated:

And if it is, bring it here, and then maybe we can play it. Depending upon what’s on that disc, if you think we should continue the trial to another date, we can do it. Maybe you can listen to that disc and feel comfortable with whatever is on it. I don’t know. I don’t know what’s on it and you don’t either.

The following exchange then took place between defense counsel and the trial court:

[Defense Counsel]: Judge, and this is where it gets into a cumulative effect. I’ve just this morning.got the transcript of the defendant’s statement and the transcript from Children’s Hospital. And now with the CAC tape, I need additional time to make comparisons particularly with reference to the Children’s Hospital and the CAC tape and statements given to this detective by the alleged victim to search for inconsistencies if they exist so that I have the ability to adequately and effectively cross-examine the victim when she takes the stand. So with all due respect, Your Honor, I need more than a few hours.
THE COURT.: I don’t think it’s unreasonable. I know that you are both ready. I’m just seeing if there is someway that I can accommodate y’all. and at the same time get this matter disposed .of, b.ut obviously I don’t want , to prejudice the rights of your client. Let’s start by. coming back at 1:16. You try to get the disc. I still want you to listen to it. Then upon if you still feel the same way, and I don’t know what y’alls schedule is, I’m here for the whole week. I would be more than happy to give you a day’s recess if that’s what you need to compare it, or if it is unreasonable in light of your 'schedule, then we’ll just simply reset it. But why don’t we start by getting that disc here and see what the young lady had to say, then I’m going to let you make the call as to whether or not we should reset it for Thursday or reset it for a couple of months from now.

Based on the foregoing exchanges, it is clear that the trial court was more than accommodating to defense counsel regarding receipt and review of the CAC tape. At one point, the trial court went so far .as to allow a continuance for months if the situation dictated such a remedy. In any event, the CAC tape was obtained later that same day. Testimony was concluded for the day, and the trial court informed defense counsel that if he wished he could use the court’s equipment to view the CAC interview. IsThey would then resume trial at 9:30 a.m. the next day.

The following morning, October 15, 2014, the trial court asked counsel if they viewed the CAC tape. Although he could not hear the tape, defense counsel informed the court that he viewed it, and that he did not know if he would introduce it because he did not “know what value it would be,” but he reserved his right to introduce it. Trial then resumed.

Thus, despite the trial court’s assurance that defense counsel could continue the matter if he needed more time, defense counsel, after viewing the CAC tape, chose not to introduce it into evidence, even for impeachment purposes. Accordingly, by the defendant’s own admission, there was nothing exculpatory on the CAC tape.

Moreover, even if the tape did contain exculpatory or, more particularly, impeachment evidence, the defendant failed to show how he was prejudiced in any way. A discovery violation involving the State’s failure to disclose exculpatory evidence does not require reversal as a matter of the Due Process Clause unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. Garrick, 870 So.2d at 993. While late disclosure, as well as nondisclosure, of exculpatory evidence may deprive the defendant of a fair trial, in both instances the impact on the defense “must be evaluated in the context of the entire record.” State v. Kemp, 00-2228 (La. 10/15/02), 828 So.2d 540, 545 (per cu-riam).

There was no evidence, including the CAC tape, submitted on appeal for this court to review. Defense counsel’s decision not to even introduce the CAC tape at trial suggests there was nothing in A.D.’s interview that tended to establish the defendant’s innocence. Arguably, if the CAC tape contained evidence with impeachment value, the State’s initial failure to turn over any tape to the defense may have constituted a discovery violation. However, even where disclosure is made during trial, it will be considered timely if the defendant is not prejudiced. State v. Huls, 95-0541 (La.App. 1 Cir. 5/29/96), 676 So.2d 160, 170, writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126. Moreover, any ostensible dis covery violation did not result in actual prejudice to the defendant and, as such, there were no grounds for reversal. See Garrick, 870 So.2d at 993. The disclosure that the CAC interview had not been transcribed and that the State had never been in possession of the CAC tape was revealed minutes into the testimony of the first witness. Also, A.D. was called to the stand to testify, and defense counsel was afforded the opportunity to vigorously cross-examine her. Cf. State v. Barker, 628 So.2d 168, 176 (La.App. 2 Cir. 1993), writ denied, 93-3194 (La. 3/25/94), 635 So.2d 236.

Accordingly, the disclosed, albeit late, CAC tape did not constitute material evidence. See State v. Marshall, 94-0461 (La. 9/5/95), 660 So.2d 819, 825-27. Favorable evidence is material, and constitutional error results from its suppression by the government, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 685, 105 S.Ct. 3375, 3383, 3385, 87 L.Ed.2d 481 (1985). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. See State v. Smith, 95-1826 (La.App. 1 Cir. 9/27/96), 681 So.2d 980, 992, writ denied, 96-2568 (La. 3/27/97), 692 So.2d 390.

Brady and its progeny do not establish a general rule of discoverability. A prosecutor does not breach his constitutional duty to disclose evidence unless the omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial. The mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial does not establish “materiality” in the constitutional sense. State v. Sparks, 88-0017 (La. 5/11/11), 68 So.3d 435, 486, cert. denied sub nom, 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012).

Based on the foregoing, we find the defendant has failed to show that he was prejudiced in any way or that the proceedings were somehow rendered fundamentally unfair by the late disclosure of the CAC tape interview. See State v. Pitre, 04-0545 (La.App. 1 Cir. 12/17/04), 901 So.2d 428, 441-42, writ denied, 05-0397 (La. 5/13/05), 902 So.2d 1018. Had such evidence of the CAC interview been disclosed prior to trial instead of at the beginning of trial, we are convinced that the result of the proceeding 1 mwould not have been different. See Bagley, 473 U.S. at 682, 685, 105 S.Ct. at 3383, 3385.

The defendant has not established a viable Brady claim and, as such, we find no abuse of discretion in the trial court’s denial of either the motion for mistrial or the motion for continuance. Accordingly, these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, the defendant argues the trial court erred in denying his motion for a new trial. The defendant asserts he should have been granted a new trial because new evidence (the CAC tape) was presented the day of trial. Further, according to the defendant, he was not able to knowingly waive a jury trial because of his lack of knowledge of the CAC tape.

Louisiana Code of Criminal Procedure article 851(3) provides that a new trial shall be granted whenever “[n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.” The decision of whether to grant or deny a motion for new trial is within the trial judge’s sound discretion. State v. Brisban, 00-3437 (La. 2/26/02), 809 So.2d 923, 931.

The issue regarding the CAC tape being made available to defense counsel on the first day of trial has already been addressed in full in the second and third assignments of error. As such, and especially in light of the fact that defense counsel viewed the CAC tape and chose not to use it, introduce it into evidence, or ask for a continuance, the defendant was not entitled to a new trial because of the late disclosure of the CAC tape.

In his written motion for a new trial, the defendant argued that possible exculpatory evidence, the CAC tape, was not turned over until after trial began. The defendant made no argument in his written motion about not knowingly waiving his right to a jury trial; defense counsel raised this issue for the first time at the post-trial hearing on the motion for new trial. The defendant also argued in his written motion for a new trial that the ends of justice would be served by the granting of a new trial Inunder LSA-C.Cr.P. art. 851(5) (now 851(B)(5) since the 2014 amendment).

In addressing the jury trial waiver issue at the motion for new trial hearing, the trial court stated in pertinent part:

So I appreciate the position of [defense counsel]. However, I also appreciate that he did the appropriate job when he defended Mr. Gross in this matter. It’s.kind of hard for me to weigh in on the waiver of the trial by jury in the disclosure of this matter. This matter could have been disclosed on the 43rd day before trial and maybe this would not have been an issue but—at the time of the trial. So I don’t know.
■ I know [defense counsel], because he is a seasoned defense attorney, -makes all of those things an issue because that’s what a good attorney does, and I cannot second guess whether the disclosure of those impeachable materials would have affected his right to waive .the trial by jury. My guess would be, no, only because of the fact that all of us know how difficult alleged abuse of a child is ip front of a jury. It’s just a difficult matter to try.
But, anyway, regardless, it’s going to •be my position that the motion for a new trial will be denied because of all the comments that I’ve made.

We see no reason to disturb the ruling of the trial court. Clearly, tactical reasons may have existed for the defendant to seek to have his case, which involved the alleged sexual abuse of his own daughter, tried by a judge as, opposed to a jury. Defense counsel’s assertion at the motion for new trial hearing that had he known of the CAC interview, his client would not have waived his right to a jury trial was unsubstantiated and lacked any evidentiary support. At a pretrial hearing on April 2, 2014, defense counsel engaged the defendant in a colloquy on his wish to waive his right to a jury trial:

The Court: Counsel, we’ll set this matter for October 14th trial week.
Mr. Gros [sic], if you would step to the mic. Raise your right hand, face the deputy clerk, and take the oath.
RONALD GROS [sic], Who after first being duly sworn by the Deputy Clerk of Court, did testify as follows:
By [Defense Counsel]:
Q. Would you state your name.
A. Ronald Gros [sic],
Q. And you are the defendant in this matter, correct?
A. Yes, sir.
Q, You have indicated to me that it is your desire to waive your right to a jury trial and proceed with a bench trial, correct?
A. Yes, sir.
Q. I have represented you through the entirety of these proceedings, correct?
A. Yes, sir.
Q. I have explained to you the pros and cons of a trial by jury?
haA. Yes, sir.
Q. As well as a trial by judge.
A. Yes, sir.
Q. You have on your own initiative asked me to waive or indicate to the Court that you are waiving a jury in this case?
A, Yes, sir.
Q. You understand that you have a right to a trial by a jury?
A. Right.
Q. In this particular case the charges in this case you are entitled to a trial by a six-member jury, all of which must concur. In other words, a unanimous verdict in order to convict you, do you understand that?
A. Right.
Q. And a 12-person jury only 10 of 12 must agree.
A. Right.
Q. If you waive that jury your case will be decided by one person and that one person alone, and that, of course, is Your Honor, Judge Ricks.t]
A. Yes. Right.
Q. Have I advised you of all of your legal and constitutional rights in this case?
A. You have.
Q. Have I discussed the merits of the case with you? •
A. You have.
Q. And based upon those discussions it is your choice to waive the jury?
A. Yes, it is.
Q. You are doing this freely and voluntarily?
A. Yes, sir.

Finally, we note that when procedural rules are properly followed, the grant or denial of a new trial based on LSA-C.Cr.P. art. 851(B)(5) will rarely be disturbed on appeal. See State v. McKinnies, 13-1412 (La. 10/15/14), 171 So.3d 861, 874. Following our review of the record, we conclude that the trial court acted within its wide discretion in denying the defendant’s motion for new trial.

This assignment of error is without merit.

SENTENCING ERROR

In conducting our review of the record as required by LSA-C.Cr.P. art. 920(2), we note the existence of a sentencing error. The defendant was sentenced to one year of imprisonment. Under either of the applicable sentencing statutes, the sentencing range was not less than five years nor more than ten years; or not less than five years nor more than twenty years. See, respectively, LSA-R.S. 14:81.2(B)(1) and LSA-R.S. 14:81.2(B)(2) (when the offender has control or supervision over the juvenile). The defendant’s one-year sentence is, therefore, illegally lenient.

11sUnder the general provisions of La. Code Crim, P. art. 882(A), an illegal sentence may be corrected at any time by an appellate court on review. The sentencing herein, however, involves discretion. To the extent that amending the defendant’s sentence entails more than a ministerial correction of a sentencing error, a sua sponte correction by a court of appeal is not sanctioned by the jurisprudence. See State v. Haynes, 04-1893 (La. 12/10/04), 889 So.2d 224 (per curiam). Because of the sentencing discretion involved, we vacate the sentence and remand for resentencing. The trial court should specify which sentencing provision is applicable (LSA-R.S. 14:81.2(B)(1) or (B)(2)) and resentence the defendant accordingly.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction, vacate the defendant’s sentence, and remand this matter to the trial court for resentencing in accordance with the applicable law.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING IN ACCORDANCE WITH APPLICABLE LAW.

      . The three minor (at the time of the crime) females are referred to by their initials. See LSA-R.S. 46:1844(W).

      . Detective Russell initially testified that she was present at the CAC interview, but later realized she was not present, and testified to such.

      . At the time of trial, Judge Gaidry was appointed to serve ad hoc due to the recusal of all judges of the Twenty-First Judicial District Court. A motion for recusal was filed based on the defendant's previous employment as a bailiff at said court.


author: CRAIN, J.

text:
    Roberta BOUCHON, Wife of/and Wayne Bouchon v. Jennifer and Jon WALKENFORD, Individually and as Legal Guardians of Jeremy Walkenford, USAA Casualty Insurance Company, and State Farm Mutual Automobile Insurance Company
    NO. 2016 CA 1232
    Court of Appeal of Louisiana, First Circuit.
    APRIL 20, 2017

      Jack E. Truitt, Pamela S. Chehardy Croft, Amber L. Mitchell, Peter M. Gaha-gan, Covington, Louisiana, Attorneys for Plaintiffs/Appellants, Roberta Bouchon, wife of/and Wayne Bouchon
    Adrianne L. Baumgartner, Samuel P. Baumgartner, Covington, Louisiana, Attorneys for Defendants/Appellees, Jennifer and Jon Walkenford, Individually and as Legal Guardians for Jeremy Walkenford, and United Services Automobile Association
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|2The plaintiffs, Wayne and Roberta Bouchon, appeal a judgment of the trial court awarding $5,000 in damages for injuries sustained by Wayne in an automobile accident. We affirm.

FACTS AND PROCEDURAL HISTORY

The accident giving rise to this litigation occurred on June 21, 2013. The Bouchons were traveling in “stop and go”, traffic around lunchtime on Highway 22 near Mandeville when, after stopping for a red light, their vehicle was struck in the rear by a vehicle operated by Jeremy Walken-ford. The Bouchons exited their vehicle and told Walkenford, and later the responding police officer, they were not hurt. When the scene investigation was finished, the Bouchons continued on their way to a restaurant for lunch. At the restaurant, Wayne noticed some stiffness in his back and, later that evening, began experiencing low back pain that radiated into his right leg. Although he claims in this proceeding the pain continued and even worsened during the ensuing weeks and months, Wayne did not seek medical treatment until almost twelve months after the accident.

Shortly after Wayne began his medical treatment, the Bouchons filed suit against Walkenford, his parents, and their automobile liability insurer, United Services Automobile Association, seeking damages for the injuries allegedly sustained by Wayne in the accident, and for Roberta’s alleged loss of consortium. The defendants stipulated the accident was caused by the fault of Walkenford, but reserved the right to contest causation and the degree and extent of any injuries. The Bouchons stipulated their recovery did not exceed $50,000, and the matter proceeded to a bench trial.

The evidence at trial included testimony from Wayne and Roberta; the trial deposition of Dr. John Logan, an orthopedist who treated Wayne; and medical ^records reflecting Wayne’s treatment for low back pain both before and after the 2013 automobile accident. The pre-accident treatment was for an incident that occurred in 2009 when Wayne injured his low back while lifting a heavy box. He was diagnosed with a herniated disc at the L5-S1 level and underwent a lumbar microdiscec-tomy in 2010, performed by Dr. Luden Miranne, Jr., a neurosurgeon. Wayne was released from Dr. Miranne’s care in August, 2010, and did not receive further treatment for back pain prior to the 2013 automobile accident.

At the time of the automobile accident, Wayne was unemployed and, according to his trial testimony, did not immediately seek medical treatment because he could not afford to be “laid up.” In April, 2014, about ten months after the accident, he was hired by Office Depot as a sales representative and cashier, a job requiring him to stand for extended periods of time and sometimes pick up furniture. Wayne said the physical demands of the job were “tough” on him, and on one occasion he helped pick up a chair and noticed “it was causing stress” in his back.

His first treatment after the automobile accident was on June 10, 2014, when he presented to Dr. Miranne’s nurse practitioner with a history of worsening back pain since the automobile accident. The pain, according to the history, worsens “the longer he stands.” The nurse practitioner prescribed pain medication and ordered an MRI. Wayne did not treat again at Dr. Miranne’s clinic.

Wayne began treating with Dr. Logan on June 26, 2014, after the Bouchons filed suit. In his history to Dr. Logan, Wayne reported that after the accident he immediately felt low back pain and numbness in his right foot and toes, which steadily increased after the accident. He also stated the symptoms worsened over the previous two to three months, adding that his job at Office Depot required prolonged standing. Wayne underwent a lumbar MRI that showed degenerative Ldisc disease at the site of the previous surgery, a finding Dr. Logan confirmed was “nothing new.”

Dr. Logan diagnosed Wayne with low back pain radiating into his right lower extremity, which he treated with prescription medications, and, over the course of the next several months,, three selective nerve root injections. Based upon Wayne’s history, Dr. Logan opined that the automobile accident caused his low back pain. However, Dr. Logan acknowledged that patients with Wayne’s preexisting back condition can become symptomatic for a variety of reasons, even without a traumatic event, and the condition can be aggravated by prolonged standing. Dr. Logan also testified there was a “correlation” between Wayne’s work at Office Depot and the increase in his symptoms.

After taking the matter under advisement, the trial court issued written reasons finding the Bouchons failed to satisfy their burden of proving the automobile accident caused Wayne’s back and leg pain that prompted the treatment beginning in June, 2014. The trial court noted the accident did not involve a significant impact and Wayne did not seek medical treatment until June, 2014, almost one year after the accident and two months after he started working at Office Depot. The trial court was not persuaded by the Bouchons’ assertion that Wayne did not seek medical treatment because of his job search. Citing Dr. Logan’s testimony that activity changes can increase symptomology, the trial court explained:

•While the Court understands plaintiffs desire to find a better job, the plaintiff clearly did not need treatment until [one occasion when] he could not get out of [a] chair and was shaking from pain. This occurred after he began working at Office Depot, and supports a finding that the change in the physical demands of plaintiffs employment led to the need for treatment, not the accident approximately 50 weeks earlier.

|i;The trial court awarded $5,000 for the “minimal pain and suffering” experienced by Wayne before he started working at Office Depot. Denying the claims for lost wages and loss of consortium, the trial court found Wayne did not miss work for medical reasons, and changes in the Bou-chons’ marital relationship were due to the termination of Wayne’s previous employment in medical sales and the resultant loss of income. A judgment was signed in accordance with those reasons. The Bou-chons appeal and assign as error the trial court’s finding that they did not prove medical causation with regard to Wayne’s back injury.

DISCUSSION

In a personal injury suit, the plaintiff bears the burden of proving the causal connection between an accident and the resulting injuries. Tate v. Kenny, 14-0265 (La.App. 1 Cir. 12/23/15), 186 So.3d 119, 127. A tortfeasor is liable only for damages caused by his negligent act, not damages caused by separate, independent, or intervening causes. Richardson v. Bridgefield Casualty Insurance Company, 14-1587 (La.App. 1 Cir. 8/10/15), 181 So.3d 61, 64; Kelley v. General Insurance Company of America, 14-0180 (La.App. 1 Cir. 12/23/14), 168 So.3d 528, 543, writs denied, 15-0157, 15-0165 (La. 4/10/15), 163 So.3d 814, 816. The plaintiff must prove his injuries were not the result of separate, independent, and intervening causes. Richardson, 181 So.3d at 64; Kelley, 168 So.3d at 543-44. The test for détermining the causal relationship between the accident and injury is whether the plaintiff proved through medical testimony that, more probably than not, his injuries were caused by the accident. Maranto v. Goodyear Tire & Rubber Company, 94-2603 (La. 2/20/95), 650 So.2d 757, 759.

16Causation is a factual finding that should not be reversed on appeal absent manifest error. Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d 557, 561. Under the manifest error standard of review, a reviewing court' may not merely decide if it would have found the'"facts of the' case differently, Hayes Fund for First United Methodist Church of Welsh. LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, (La. 12/8/15), 193 So.3d 1110, 1115; see also Hall v. Folger Coffee Company, 03-1734 (La. 4/14/04), 874 So.2d-90, 98. Rather, to reverse a trial court’s factual-conclu sion, the appellate court must -satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly .wrong, Hayes, 193 So.3d at 1115-16; Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882. (La. 1993). Reasonable evaluations of credibility and inferences of fact should not be disturbed, even if the appellate court feels that its own evaluations and inferences are as reasonable. Hayes, 193 So.3d at 1116; Richardson, 181 So.3d at 65.

The Bouchons argue that their testimony describing the onset and duration of Wayne’s symptoms was not impeached, and that Dr. Logan confirmed the automobile accident caused the symptoms necessitating the treatment beginning in 2014. They also point out the defendants “did not call a single witness or introduce a shred of evidence bearing on the medical causation or damages issue.” Given the absence of contrary evidence, the Bou-chons maintain the trial court was not presented with two permissible views of the evidence; therefore, the causation finding must be manifestly erroneous.

While the Bouchons are correct that the defendants did not call any medical witnesses, as plaintiffs, they had the burden of proving causation; the defendants were not required to disprove causation. See Tate, 186 So.3d at 127; Richardson, 181 So.3d at 64. The causation evidence is not as straightforward as the Bouchons suggest.

Wayne did not seek medical treatment until months after the accident. Nearly two months before seeking medical treatment, he began a job that was more physically demanding than his previous jobs. Wayne testified about the job:

A. It was tough. Constantly standing on my legs ... and pain in my buttocks. It would affect me. I basically sat on a sofa and relaxed and watched television. Basically all I could do when I got back home.
Q. Yes, sir. You didn’t injure yourself at Office Depot, did you?
A. No. The only thing they did want me to do is start picking up furniture. At the time, they said if you have to pick up furniture and it’s heavy, you can ask someone to help. Which they usually did. But then, like I said, we decided to pick up a chair. I decided to pick up a chair. But I noticed it was causing stress in my back and stuff.
So I went back to Dr. Logan and said ... I was [having] trouble picking up chairs and stuff. And he told me you shouldn’t be picking] up anything [over] 25 pounds.

During cross-examination, he testified:

Q. Now, it was right before you went to ... see Dr. Miranne that you did something at Office Depot that aggravated your back; is that correct?
A. Well, I picked up something over 25 pounds. And it affected my back. So because that aggravated the thing a little bit, I talked to [Dr.] Logan to give me an excuse not to pick up anything over 25 pounds.
* * *
Q. And you picked up something over 25 pounds, and that’s what really stressed your back, and you ended up going to see Dr. Miranne?
A. No. It had nothing to do with that going to see [Dr.] Miranne. It was when I was in the house, and I tried to move, I couldn’t. Like I was fixed, trying to do that. Like my body could not move to go 15 feet to walk across. That’s what stressed my back and it was achy and stuff. It had nothing to do with Home Depot. Office Depot.
* *
*
|rQ. The types of problems that you had when had back surgery [in 2010] was pain down your legs and [into] your toes; is that correct?
A. Right. Yes.
Q. Right before you saw [Dr.] Mir-anne, did you lift furniture?
A. No.
Q. You didn’t do anything?
A. No....
Q. Just standing up all day long?
A. Just standing up all day long.
Q. And that’s what aggravated your back?
A. Yeah. Any time I stand up, it causes, aggravates the pain in my leg for a long period of time.

Roberta testified that Wayne suffered back pain continuously from the time of the automobile accident until he sought treatment; however, on cross-examination, she testified about the Office Depot job:

Q. And from your understanding, that job require[d] him to be on his feet all day long; is that correct?
A. Yes.
Q. And that’s when he really started having problems, when he had to stand up on his feet all day long; is that correct?
A. Yes.
Q. And that’s when, after he started that activity, that he had to go to [Dr.] Miranne; is that correct?
A. It got worse because he was standing. It was not the kind of job he wanted. But he had to have a job.

Dr. Logan testified that the automobile accident caused Wayne’s degenerative back condition to become symptomatic, and the treatment he rendered to Wayne was reasonably related to the accident. However, Dr. Logan based his opinion on the history provided by Wayne. He acknowledged that | gdegenerative back conditions can become symptomatic for many reasons, explaining:

Q. [Wayne] had back surgery in 2010 and he’s complaining of ongoing symptoms with respect to his low back and his right leg. My understanding, in looking at your diagnosis, is that there was really nothing new with respect to the MRI ....
A. Right .... I think what you’re asking [is] in the absence of a motor vehicle accident, can a patient with his history of previous discectomy present with his symptomology? .... Yes they can.
Q. And they could be aggravated by working in the garden, causing them to be symptomatic?
A. Sure.
Q. Can it be aggravated by standing for prolonged periods of time?
A. It can, yes.
Q. So, if he had started engaging in a physical activity within the two months before [seeing] you that he had not done before, such as standing for prolonged periods of time with a new job, that can cause this type of condition to flare [up] and cause him symptoms?
A. ... Yes. Patients can become symptomatic due to a variety of reasons. Activity changes can cause increased symp-tomology. That only makes sense. Therefore, I am dependent on what the patient tells me as to what causes their problem.
Q. The truth of the historian.
A. Always.

After noting a “correlation” between the Office Depot job and Wayne’s increased symptoms, Dr. Logan explained how he determined if the job or accident caused the continuing symptoms:

A. Very difficult, if not impossible. He’s telling us that that’s a painful activity for him. That is a reasonable activity that’s painful with his anatomic condition. That’s what I’m the expert in. Connecting that symptomology to the motor vehicle accident, which is why I’m sitting here, I’m filling in the blanks, too. I have to rely on what the patient tells me is the inciting event that led him to be symptomatic ... based on an event[,] and then you do an activity , that causes those symptoms, is it the activity causing it. or is it the event that led to the symptomology? I don’t know if there’s anybody on the planet that can say that.

|1ftWe find the evidence presents more than one permissible view of the cause of ■Wayne’s symptoms. Wayne first presented ■for treatment nearly twelve months after the automobile accident, but only about two months after starting a job' he described as. physically “tough” on him. The trial court was not persuaded that the delay in treatment was due to Wayne’s job search. Rather, the trial court reasonably inferred Wayne delayed treatment because the symptoms from the automobile accident were not significant.

While Dr. Logan opined that Wayne’s continuing back pain was probably caused by the automobile accident, his opinion was based on the history provided by Wayne. Thus, the trial court’s assessment of Wayne’s credibility affected the weight given to both Wayne’s trial testimony and the medical opinions offered to establish causation between the automobile accident and the alleged injuries. See Richardson, 181 So.3d at 68. Dr. Logan conceded that Wayne’s preexisting condition and the physical demands of the Office Depot job made it very difficult to determine causation. The trial court is not bound by' the testimony of an expert. Expert testimony must be weighed like any other evidence, and the expert’s opinions may be rejected in whole or in part. The factfinder may substitute its own common sense, and'judgment for that of. an expert when doing so appears warranted from the whole .record. See Richardson, 181 So.3d at 67-68.

Reasonable persons frequently disagree about causation in particular cases. Hayes, 193 So.3d at 1116. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Hayes, 193 So.3d at 1116; Richardson, 181 So.3d at 65. Based upon the entire record, the trial court could have reasonably concluded Wayne was injured in the automobile incident, but not to the extent alleged. See Mitchell v. Access Medical Supplies, Inc,, 15-0305 (La.App. 1 Cir. 11/9/15), 184 So.3d 118, 122. The finding that the plaintiffs did not prove the automobile accident caused the symptoms for which Wayne sought medical treatment is not manifestly erroneous or clearly wrong. This assignment of error has no merit.

CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are assessed to Wayne and Roberta Bouchon.

AFFIRMED.

      . The trial court also rejected the suggestion that Wayne did not seek treatment because he lacked health insurance. While scant evidence was presented to support that explanation, the trial court pointed out that Wayne had insurance for medical treatment through his personal automobile policy. - • ■

      . Although not assigned as error, the Bou-chons argue in their brief that the trial court erred in awarding only $5,000 in genéral damages and in denying recovery for Roberta’s alleged loss of consortium. Because we find the trial court’s causation determination was not manifestly erroneous, we also find no abuse of discretion in the quantum determinations. See Theriot v. Allstate Insurance Company, 625 So.2d 1337, 1340 (La. 1993).