text:
    STATE EX REL. Albert LEWIS v. STATE of Louisiana
    No. 16-KH-1908
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

11 Granted for the sole purpose of transferring to the Fourth Circuit Court of Appeal for its consideration.

Though this Court originally retained exclusive appellate jurisdiction over this pre-1982 felony conviction, see La. Const, art. V, § 5(E), following the substantive change of law announced in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the retroactive applicability of which was clarified in Montgomery v. Louisiana, 577 U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the matter was remanded to the trial court for further proceedings consistent with the views expressed in State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606, and for resen-tencing pursuant to La.C.Cr.P. art. 878.1. Accordingly, given that the United States Supreme Court’s Eighth Amendment jurisprudence concerning the punishment of juvenile defendants undermined defendant’s original sentence, and that he was resentenced in 2016, when appellate jurisdiction in non-capital penalty cases triable by jury, such as this case, is vested in the intermediate courts of appeal, see La. Const, art. V, § 10(A) (eff. July 1, 1982, “[A] court of appeal has appellate jurisdiction of ... all criminal cases triable | Joy a jury,” except when a law has been declared unconstitutional or when the death penalty has been imposed), defendant’s pleading, which we construe as an appeal from his resentencing, see State v. Franks, 391 So.2d 1133 (La. 1980) (subsequent filings following resentencing treated as appeals by this Court), is subject to direct review in the court of appeal.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Jerome HUDSON v. STATE of Louisiana
    No. 2016-KH-1731
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

| granted for the sole purpose of transferring to the Second Circuit Court of Appeal for its consideration.

Though this Court originally retained exclusive appellate jurisdiction over this pre-1982 felony conviction, see La. Const, art. V, § 5(E), following the substantive change of law announced in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the retroactive applicability of which was clarified in Montgomery v. Louisiana, 577 U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the matter was remanded to the trial court for further proceedings consistent with the views expressed in State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606, and for resen-tencing pursuant to La.C.Cr.P. art. 878.1. Accordingly, given that the United States Supreme Court’s Eighth Amendment jurisprudence concerning the punishment of juvenile defendants undermined defendant’s original sentence, and that he was resentenced in 2016, when appellate jurisdiction in non-capital penalty cases triable by jury, such as this case, is vested in the intermediate courts of appeal, see La. Const, art. V, § 10(A) (eff. July 1, 1982, “[A] court of appeal has appellate jurisdiction of ... all criminal cases triable | ?by a jury,” except when a law has been declared unconstitutional or when the death penalty has been imposed), defendant’s pleading, which we construe as an appeal from his resentencing, see State v. Franks, 391 So.2d 1133 (La. 1980) (subsequent filings following resentencing treated as appeals by this Court), is subject to direct review in the court of appeal.


text:
    STATE of Louisiana v. Davon JACKSON
    No. 2016-KP-0352
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

11 Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We attach hereto and make a part hereof the District Court’s written reasons denying relator’s application.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

WEIMER, J., would grant.

HUGHES, J., would grant.

CRICHTON, J., would grant.

I ¡Attachment


text:
    Magaret F. SPEARS and Willie L. Spears v. SAFEWAY INSURANCE COMPANY OF LOUISIANA and Its Insured, Andrew Ward
    NO. 2016-C-1267
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, No. 2012 CV 00435; to the Court of Appeal, Third Circuit, No. 16-81

| denied.


text:
    James A. ROUNTREE v. FORSYTHE HOLDINGS, INC. James A. Rountree v. Forsythe Holdings, Inc., G & Y Still Limited Partnership, John Michael Merritt, Susan K. Merit, and James Patrick Gladney in His Official Capacity as Claiborne Parish Clerk of Court
    NO. 2016-C-1271
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 39,440 C/W 40,290; to the Court of Appeal, Second Circuit, No. 50,569-CA C/W 50,570-CA.

| denied.


text:
    Fabian C. HERRERA v. FIRST NATIONAL INSURANCE COMPANY OF AMERICA, d/b/a Liberty Northwest; Jerry Kautz, Individually, and d/b/a Vintageorgans.Com, and also Vintageorgans.Net, and also Vintagehammond.Com, and also Vintage Organ Company; and Robert D. Armendariz
    NO. 2016-C-1278
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 70504; to the Court of Appeal, First Circuit, No. 2015 CA1097.

11Denied


text:
    TESTIGA PROPERTIES, LLC and Braswell Drugs, Inc. v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT OF the STATE of Louisiana
    NO. 2016-CC-1279
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2014-11886; to the Court of Appeal, First Circuit, No. 2016 CW 0260

| ¶ Denied.


text:
    Nathan GORDON v. Simone Anderson GORDON
    NO. 2016-C-1282
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2009-07133; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0008

1 ] Denied.


text:
    STATE of Louisiana v. Daviri ROBERTSON
    NO. 2016-KK-1283
    Supreme Court of Louisiana.
    October 28, 2016
   Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court, Div. M, No. 556-801; to the Court of Appeal, Fourth Circuit, No. 2016-K-0652;

| denied. Moot.

CLARK, J., would grant.


text:
    Charles A. CIOLINO and Gertrude K. Ciolino v. FIRST GUARANTY BANK AND CAPITAL ONE, N.A.
    NO. 2016-C-1293
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 2010-0003104 C/W 2010-0003465; to the Court of Appeal, First Circuit, No. 2015 CA 0818 C/W 2015 CA 0819

| denied


text:
    SEVENHILLS HEALTHCARE, LLC, Apollo Management Consultants, LLC, and Gopinath Gopalam v. ST. JAMES BEHAVIORAL HEALTH HOSPITALS, Lance E. Bullock, M.D., Rama Kongara M.D., and Wendell B. Smith Sevenhills Healthcare, LLC, Apollo Management Consultants, LLC, and Gopinath Gopalam v. Wendell B. Smith
    NO. 2016-C-1297
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 101,206 AND 101,434; to the Court of Appeal, First Circuit, No. 2015 CA 1000 C/W 2015 CA 1001.

| denied.

HUGHES, J., would grant.


text:
    Forest MARTIN, et al. v. Mark BUFFINGTON, et al.
    NO. 2016-CC-1302
    Supreme Court of Louisiana.
    October 28, 2016
   Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court, Div. F, No. 233,213; to the Court of Appeal, Third Circuit, No. CW 16-00184;

| denied.


text:
    DOCTOR Plaintiff v. LIFEPOINT HOSPITALS, INC., PHC-Morgan City, L.P., Hospital Auxiliary of Morgan City, Inc. d/b/a Teche Regional Medical Center, Board of Trustees of Teche Regional Medical Center and Medical Executive Committee of Teche Regional Medical Center
    NO. 2016-C-1305
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. H, No. 126,844; to the Court of Appeal, First Circuit, No. 2015 CA 0979;

I, Denied.


text:
    John CANTU, et ux. v. SCHLUMBERGER
    NO. 2016-C-1307
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Red River, 39th Judicial District Court Div. 0, No. 35,277; to the Court of Appeal, Second Circuit, No. 50,-605-CA

^Denied.


text:
    IN RE: MEDICAL REVIEW PANEL FOR THE CLAIM OF Tara LORRAINE
    NO. 2016-C-1308
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. 26, No. 607-582; to the Court of Appeal, First Circuit, No. 2014 CA 1428;

[ denied.

HUGHES, J., would grant.


text:
    Pamela Elaine LOCKRIDGE v. Leroy EDWARDS
    NO. 2016-CC-1311
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. D, No. 140,130; to the Court of Appeal, Second Circuit, No. 50,-881-CW C/W 50,882-CW

I, Denied.


text:
    Margaree HANEY v. Dr. Janet E. LEWIS
    NO. 2016-C-1252
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 596,837; to the Court of Appeal, First Circuit, No. 2015 CA 1173.

| xDenied.


text:
    Margaree HANEY v. Dr. Janet E. LEWIS
    NO. 2016-C-1254
    Supreme Court of Louisiana.
    October 28, 2016
   Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court, Div. D, No. 596,-837; to the Court of Appeal, First Circuit, No. 2015 CA 1173; October 28, 2016

11 Denied.


text:
    Eva TEMPLE v. Julie Sibley MORGAN; East Baton Rouge City Parish Government; William Daniel, Director of the Department of Public Works for the City Parish Government of East Baton Rouge; XYZ Insurance Company and 123 Insurance Company
    NO. 2016-C-1255
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. 27, No. 609,-320; to the Court of Appeal, First Circuit, No. 2015 CA 1159.

| denied.


text:
    Ryan HEBERT v. Caleb BOESCH; GEICO Casualty Company; and LM General Insurance Company
    NO. 2016-C-1257
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. D, No. 1041317; to the Court of Appeal, First Circuit, No. 2015 CA 1791; October 28, 2016

| ¶ Denied.


text:
    Lewis KNOTEN Individually and as Natural Tutor of Lalila Knoten and the Estate of Danielle Adams v. Tammy WESTBROOK, AAA Insurance Co., Alvin Welch, State Farm Insurance Co. Bertell Thomas, Individually and as Surviving Father of Kyren Thomas v. National Specialty Insurance Company, Western Star Transportation, LLC; Tammy Westbrook, et al. Candice Walker Individually and on Behalf of her Deceased Children, K.T. and D.H. v. Tammy Westbrook, Western Star Transportation LLC, Western Star Transport, LLC, et al. Carlos Hite, Jr., Individually and as Natural Tutor of Di’Avion Hite (Decease) v. National Specialty Insurance Company; Western Star Transport, LLC, Tammy Westbrook, Lewis Knoten and Alvin Welch Evelyn Brown, Individually and on behalf of her Minor Granddaughter, Laila Knoten v. Western Star Transportation, L.L.C., National Specialty Insurance Company, Tammy P. Westbrook, Lewis C. Knoten and Alvin J. Welch
    NO. 2016-C-1260
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 09-1028 C/W 2009-5660 C/W 2009-6941 C/W 2009-7238 C/W 2009-13124; to the Court of Appeal, Fourth Circuit, No. 2014-CA-0892 C/W 2014-CA-0893 C/W 2014-CA-0894 C/W 2014-CA-0895 C/W 2014-CA-0896.

| denied.


text:
    STATE of Louisiana IN the INTEREST OF P.D.J., W.I.J., Jr., and H.O.J.
    NO. 2016-CJ-1786
    Supreme Court of Louisiana.
    October 28, 2016
   Applying for Writ of Certiorari and/or Review, Parish of Caddo, Juvenile Division-First Judicial District Court for the Parish of Caddo, No. 143,031; to the Court of Appeal, Second Circuit, No. 51,027-JAC;

| denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Christopher PARKER
    NO. 2016-KK-1262
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 527-041; to the Court of Appeal, Fourth Circuit, No. 2016-K-0557

| denied.

JOHNSON, C. J„ would grant.

HUGHES, J., would grant.


text:
    Stephanie Brooke LEBLANC v. Terry Lynn COOLEY
    NO. 2016-C-1265
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. B, No. C-2011-0955; to the Court of Appeal, Third Circuit, No. 16-87

h Denied.


text:
    Robin Rogers RICHARD, et ux. v. TOWN OF LAKE ARTHUR, et al.
    NO. 2016-C-1266
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. C-562-14; to the Court of Appeal, Third Circuit, No. CA16-113.

11 Denied.


text:
    STATE EX REL. Michael E. SULLIVAN v. STATE of Louisiana
    NO. 2016-KH-1481
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. E, No. 97601; to the Court of Appeal, Third Circuit, No. KH 16-00419;

I;WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Marcus Andrew TAYLOR v. STATE of Louisiana
    NO. 2016-KH-1513
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 273435

11WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Allen JOHNSON v. STATE of Louisiana
    NO. 2016-KH-1514
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 282-446.

JjWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Esther PENNS v. STATE of Louisiana
    NO. 2016-KH-1529
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 270,578.

I,WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Brooklyn Becc Huber BROWN v. STATE of Louisiana
    NO. 2016-KH-1587
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 1301134; to the Court of Appeal, First Circuit, No. 2015 KA 0176.

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Iziah BRYANT, Jr. v. STATE of Louisiana
    NO. 2016-KH-1612
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Jackson, 2nd Judicial District Court Div. B, No. 46,231.

11WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Anthony Joseph FONTENOT, Jr. v. STATE of Louisiana
    NO. 2016-KH-1714
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. C, No. 2454-01; 20884-02,12398-05;

I,WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Joseph SERGENT v. STATE of Louisiana
    NO. 2016-KH-1726
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court, Div. J, No. 14-876;

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Wesley RICKS v. STATE of Louisiana
    NO. 2016-KH-1736
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. K, No. 12-F1299;

| jWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. William MOSER v. STATE of Louisiana
    NO. 2016-KH-1738
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 184773; to the Court of Appeal, First Circuit, No. 2015 KW 1542

11 WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 6.


text:
    STATE EX REL. Joe Nathan TUBBS v. STATE of Louisiana
    NO. 2016-KH-1752
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 1, No. 78385

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Johnny THOMPSON, Jr. v. STATE of Louisiana
    NO. 2016-KH-1803
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. K, No. 2013-958F.

_JjWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Christopher WEATHERSBY v. STATE of Louisiana
    NO. 2016-KH-1778
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 486-005; to the Court of Appeal, Fourth Circuit, No. 13-KA-0258;

It WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Patrick Joseph WILLIAMS v. STATE of Louisiana
    NO. 2016-KH-1819
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court, Div. 2, No. 285,291;

I;WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Wayne Kevin JONES v. STATE of Louisiana
    NO. 2015-KH-0874
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div, E, Nos, 22024-08, 20609-10; to the Court of Appeal, Third Circuit, Nos. KH 14-01061, KH 15-00129

11 Denied.


text:
    STATE of Louisiana v. Charles E. WILLIAMS
    NO. 2015-K-1261
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 518-229; to the Court of Appeal, Fourth Circuit, No. 2014-KA-1314.

| denied.


text:
    STATE of Louisiana v. Evan Vaughn PLYBON
    NO. 2015-OK-1356
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, Lafayette City Court, No. DT201400095; to the Court of Appeal, Third Circuit, No. KW 15-00121

| denied.


text:
    STATE of Louisiana v. Jammal Fredrick CALLOWAY
    NO. 2015-KO-1844
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 538631-1; to the Court of Appeal, First Circuit, No. 2015 KA 0191.

|, Denied,


text:
    STATE of Louisiana v. Darryl GRIFFIN
    NO. 2015-KO-1894
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 479-359; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0125

11 Denied.


text:
    STATE of Louisiana v. Manzy C. WATSON a/k/a Manzy Lashawn Watson a/k/a Manzy L. Watson
    NO. 2015-KO-2046
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 30173-12; to the Court of Appeal, Third Circuit, No. 15-392; November 7, 2016

| denied


text:
    STATE of Louisiana v. Rickey G. POWELL
    NO. 2015-KO-2166
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 518-519; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0218

| denied.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Jason BENNETT
    16-432
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 12/07/2016

      John Foster DeRosier, District Attorney — 14th Judicial District, Karen C. McLellan, Assistant District Attorney— 14th Judicial District, P. 0. Box 3206, Lake Charles, LA 70602-3206, Telephone: (337) 437-3400, COUNSEL FOR: Plain-tiffiAppellee — State of Louisiana
    Elizabeth Brooks Hollins, Assistant District Attorney — 14th Judicial District, 901 Lakeshore Drive — Suite 800, Lake Charles, LA 70629, Telephone: (337) 437-3400, COUNSEL FOR PLAINTIFF AP-PELLEE: State of Louisiana
    Tara B. Hawkins, Chief Felony Prosecutor — 14th Judicial District, 901 Lakeshore Drive — Suite 600, Lake Charles, LA 70602-2142, Telephone: (337) 437-3400, COUNSEL FOR: Plaintiff/Appellee— State of Louisiana
    Brent A. Hawkins, P. O. Box 3752, Lake Charles, LA 70602, Telephone: (337) 210-8811, COUNSEL FOR: Defendant/Appellant — Jason Bennett
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John E. Conery, Judges.
   THIBODEAUX, Chief Judge.

| ^Defendant Jason Bennett was charged by a bill of indictment with one count of vehicular homicide, in violation of La.R.S. 14:32.1. Mr. Bennett pled no contest to the charge and was sentenced to twenty years at hard labor with the Department of Corrections, with eight of those years suspended and five years of supervised probation upon release. Mr. Bennett’s motion to reconsider, alleging that the sentence he received was excessive because he did not receive credit for the time he spent incarcerated on another charge in Livingston Parish during the pendency of this case, was denied. Mr. Bennett now appeals claiming that his sentence is unconstitutionally excessive. The State alleges that the sentence is illegally lenient because of the trial court’s failure to impose a parole, probation or suspension of sentence restriction. We conclude the sentence is not excessive, and we remand for the correction of the illegally lenient sentence.

I.

ISSUES

We must determine:

(1) whether the twenty-year sentence imposed by the trial court is an unconstitutionally excessive sentence for Mr. Bennett; and
(2) whether the sentence is illegally lenient pursuant to La.R.S. 14:32.1(B).

II.

FACTS AND PROCEDURAL HISTORY

On September 24, 2012, at approximately 4:20 am, Mr. Bennett was involved in a two-car collision on Interstate 10 on the bridge crossing the Calcasieu |aRiver. The vehicle driven by Mr. Bennett was occupied by three other individuals, including Derrick Barton, who was killed as a result of the accident.

Mi*. Bennett’s vehicle collided with a truck that was being driven ahead of him. Mr. Bennett attempted to avoid impact with the vehicle by steering left into the left-hand lane of the interstate. He was unsuccessful in avoiding contact. The contact with the truck caused the death of the front seat passenger of Mr. Bennett’s car, Mr. Derrick Barton. Subsequent lab results from the blood work obtained from Mr. Bennett on the morning of the crash revealed that he tested positive for methamphetamine, amphetamine, and opiates, specifically Oxycodone.

Mr. Bennett was charged by bill of indictment with one count of vehicular homicide. Mr. Bennett pled no contest to the charge and was sentenced to twenty years at hard labor with the Department of Corrections, with eight of those years being suspended and five years of supervised probation upon release; he was ordered to pay $75 a month in supervision fees while on probation, as well as $2,000 fine plus court costs to be paid during his probationary time; he was further ordered to pay $400 to the Indigent Defender Board for his representation and was offered the opportunity to do community service in lieu of his payment for his supervision fees.

⅜ — I ) — I h-4

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there is one error patent. The trial court did not impose the required | ¡¡parole, probation or suspension of sentence restriction and mandatory substance abuse program as part of Mr. Bennett’s sentence.

IV.

LAW AND DISCUSSION

Illegal Leniency

In his assignment of error, Mr. Bennett contends that his sentence is unconstitutionally excessive. However, the State has properly raised an illegal leniency claim regarding the trial court’s failure to impose a parole restriction and required participation in a substance abuse program, as required by La.R.S. 14:32.1(B). Under La.R.S 14:32.1(B): “At least three years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.” Additionally, La.R.S. 14:32.1(B) also states that the “court shall require the offender to participate in a court-approved substance abuse program and may require the offender to participate in a court-approved driver improvement program.”

La.R.S. 14:32.1(B) gives the trial court discretion with regard to how much of Mr. Bennett’s sentence is to be served without parole eligibility, requiring only that the minimum be three years. Because La.R.S. 14:32.1(B) requires that at least three years be imposed without benefit of parole, probation, or suspension of sentence, Mr. Bennett’s sentence is illegally lenient. Furthermore, La.R.S. 14:32.1 requires that the court order Mr. Bennett to “participate in a court-approved ^substance abuse program.” For these reasons, part of Mr. Bennett’s sentence must be remanded to the trial court for resentencing under La. R.S. 14:32.1(B).

Excessiveness

Mr. Bennett argues that he is not among the most egregious and blameworthy offenders warranting a twenty-year sentence for the offense of vehicular homicide given the facts and circumstances of this case. Mr. Bennett contends that because he took accountability for his actions the same day the accident occurred, cooperated with law enforcement, and exhibited a sense of remorse, the sentence imposed by the trial court was unconstitutionally excessive. We disagree.

The sentencing range for a first conviction of vehicular homicide under La.R.S. 14:32.1 is no less than a $2,000 fine or more than a $15,000 fine, and the defendant shall be imprisoned with or without hard labor for not less than five years or moi’e than thirty years. Using these factors Mr. Bennett was appropriately sentenced. He pled no contest to vehicular homicide. Mr. Bennett was sentenced to twenty years with eight years suspended and a fine of $2,000. He did not receive the maximum sentence, rather the sentence was at the mid-range level.

Standard of Review

A sentence may be excessive, even if it falls within the statutory guidelines, “if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering.” State v. Oliphant, 48,998 (La.App. 2 Cir. 4/9/14), 137 So.3d 42, 144. In State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127, 130, this Court stated the standard of review for an excessiveness claim:

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of discretion. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and therefore, is given broad discretion in sentencing. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion.

In reviewing the trial judge’s sentencing decision there are three factors to be considered: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. State v. Morris, 10-1278 (La. App. 3 Cir. 5/4/11), 63 So.3d 389, 391. Although comparison with other cases is an element of sentence review, “the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense.” State v. LeBlanc, 09-1355 (La. 7/6/10), 41 So.3d 1168, 1173.

Discussion

While Mr. Bennett was a first felony offender at the time of his plea, there was a pending drug possession charge against him when this vehicular accident occurred. Mr. Bennett was subsequently put on probation for the possession charge after this offense. At the sentencing hearing, the trial court found Mr. Bennett’s previous arrest and potential jail time as a result of drug usage to be an aggravating factor. Furthermore, the trial court found that Mr. Bennett’s | ^continual drug use created an undue risk that during a period of suspended sentence he would commit another crime.

In addition, the trial court found that a lesser sentence would deprecate the seriousness of Mr. Bennett’s crime. At the time of this offense Mr. Bennett had oxy-codone, amphetamine, and methamphetamine in his system. The trial judge noted that Mr. Bennett should have known of the vulnerability of the passengers, as well as himself, because of his impairment. His drug use created a risk of great bodily harm or death to more than one person and was considered an aggravating factor. The trial judge poignantly noted “[t]he offenses clearly resulted in significant permanent injury to the family, loss of a father, loss of a son. He was, as indicated before, in control of the situation in operating the vehicle and accepting responsibility.”

The Morris factors require that the court look at sentences imposed for similar crimes by the same court and other courts. Morris, 63 So.3d 389. In State v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224, this Court affirmed the sixteen-year, hard labor sentence of a defendant convicted of vehicular homicide. The court noted that while the defendant had no prior felony convictions, the fact that his blood alcohol concentration was twice the legal limit at the time of the offense, and that his actions resulted in the death of a human being and serious bodily injury to two others, the sentence imposed was appropriate.

In LeBlanc, 41 So.3d 1168, the Louisiana Supreme Court held that the trial court’s sentence of the maximum term of thirty-year imprisonment at hard labor, with three years without benefit of parole, was not an excessive sentence for defendant convicted of vehicular homicide. In affirming the trial court’s sentence! 7 the court noted that because the defendant was addicted to drugs she posed an undue risk of committing other crimes if given a suspended sentence. The court further acknowledged the trial court’s statement that although the defendant was a first offender she had knowingly created a risk of death or great bodily harm to more than one person by driving under the impairment of a cocktail of illegal drugs.

Last, in Oliphant, 137 So.3d 142, the second circuit affirmed the eighteen-year sentence of a defendant who pled guilty to vehicular homicide after killing one person and injuring another. In affirming the trial court’s sentencing decision, the court noted that there was an undue risk that during the period of a suspended sentence or probation the defendant would commit another crime and that any lesser sentence than the one the court had imposed would deprecate the seriousness of the defendant’s crime. Id. “Considering the severe consequences of his crime, one man was killed and another injured, we cannot say the sentence was excessive.” Id. at 148.

Mr. Bennett has failed to show how the trial court abused its discretion. A lesser sentence would have deprecated the seriousness of this offense which resulted in the death of Derrick Barton. At the time of the accident, Mr. Bennett was impaired and should have been aware of the great risk he placed on both himself and his passengers by driving under the influence. Mr. Bennett was fairly and appropriately sentenced and has failed to demonstrate that the trial court imposed an unconstitutionally excessive sentence.

_kV-

CONCLUSION

For the following reasons, we find that Mr. Bennett’s sentence is not unconstitutionally excessive. We affirm Mr. Bennett’s sentence in part and remand in part for resentencing pursuant to La.R.S. 14:32.1(B).

SENTENCE AFFIRMED IN PART; REMANDED FOR PARTIAL RESEN-TENCING.

      . The trial judge’s comments during the sentencing hearing recognized that the mandatory minimum sentence for a conviction of vehicular homicide included at least three years of imprisonment without benefit of probation, parole, or suspension of sentence. This suggests that the trial judge inadvertently failed to include such a requirement in the imposition of sentence.


author: SAVOIE, Judge.

text:
    Darline BROUSSARD v. DILLARD DEPARTMENT STORES, INC., et al.
    16-99
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 12/07/2016
    Azelie Ziegler Shelby, Sarah K. Lunn, Airzola W. Cleaves, Shelby Law Firm, 3070 Teddy Drive, Baton Rouge, LA 70809, (225) 223-6961, COUNSEL FOR DEFENDANTS: Dillard Department Stores, Inc., Gallagher Bassett

      C. Ray Murry, Robert M. Waterwall, Attorneys at Law, 2000 W. Congress Street, Lafayette, LA 70506, (337) 234-5500, COUNSEL FOR PLAINTIFF/RELATOR: Darline Broussard
    Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

Ijn this writ application, Relator Dar-line Broussard seeks review of the workers’ compensation court’s ruling denying her motion to strike Defendant Dillard Department Stores, Inc.’s request for a preliminary determination hearing and for protection from a claim for penalties and attorney’s fees. After briefing and argument, we deny the writ regarding the motion to strike.

FACTS AND PROCEDURAL HISTORY

This case involves a workers’ compensation action which Relator filed against her employer, Dillard’s Department Store, Inc. (Dillard’s), and Gallagher Bassett Services, Inc. (Gallagher Bassett). Dillard’s is a self-insured employer, and its workers’ compensation claims are handled by a third party administrator, Gallagher Bassett. Relator alleges that while restocking clothing at the Dillard’s store in Lafayette, Louisiana, on April 8, 2014, she slipped and fell in vomit on the floor of the store. Relator further alleges that, as a result of the accident, Relator sustained injuries to her back. On August 20, 2014, Relator’s treating physician, Dr. John Sledge, took her completely off work. Thereafter, Relator began receiving temporary total disability (TTD) benefits.

On June 22, 2015, counsel for Dillard’s sent Relator’s attorney a letter, advising that, because Dr. Foster (the employer’s choice of physician) had opined that Relator was capable of sedentary work, Dillard’s was offering Relator a part-time sedentary position. However, Relator’s attorney notified the employer’s attorney that Relator’s treating physician, Dr. Sledge, had not released Relator to return to work in any capacity. Subsequently, on July 2, 2015, Dillard’s sent Relator and her attorney a Form 1002, Notice of Payment Modification, Suspension, Termination or Controversion of Compensation or Medical Benefits, |2whereby Dillard’s indicated its intention to deny Relator’s claim for TTD benefits and converted her TTD benefits to lesser supplemental earnings benefits. On that same day, Relator’s attorney, in accordance with La.R.S. 23:1201.1(F)(1), sent a letter of amicable demand to Dillard’s requesting a reinstatement of Relator’s workers’ compensation benefits. On July 9, 2015, Dillard’s terminated Relator’s TTD wage benefits and reduced them to significantly lower supplemental earnings benefits. Thereafter, on August 14, 2015, Relator filed the instant lawsuit, seeking, in addition to her workers’ compensation benefits, penalties and attorney’s fees for improper termination of her benefits.

On September 3, 2015, Dillard’s filed an answer, general denial, and request for a preliminary determination hearing pursuant to La.R.S. 23:1201.1(H). Relator filed a motion to strike Dillard’s’ request for a preliminary determination hearing. In her motion, Relator argues that Dillard’s is not entitled to a preliminary determination hearing and is not entitled to the exemption from penalties and attorney’s fees which is afforded to those employers who are entitled to a preliminary determination hearing. See La.R.S. 23:1201.1(I)(1). As is permitted by La.R,S. 23:1201.1(I)(2), Relator sought to have the workers’ compensation court conduct a rule to show cause hearing to resolve the dispute regarding Dillard’s’ entitlement to a preliminary determination hearing. Following a rule to show cause hearing on December 21, 2015, the workers’ compensation court denied Relator’s motion to strike and found that Dillard’s is entitled to a preliminary determination hearing. Relator seeks review of that ruling.

Meanwhile, on December 18, 2015, Relator also filed a motion to compel Defendants (Dillard’s and Gallagher Bassett) to retain a claims adjuster in the State of Louisiana pursuant to La.R.S. 23:1161.1. Gallagher Bassett, the third party 1 ^administrator that is handing Relator’s claim for workers’ compensation benefits, has an office in Nashville, Tennessee. Relator’s claim has been assigned to Anne Mayo, who is a senior claims adjuster. Ms. Mayo works in Gallagher Bassett’s Tennessee office, and she is a licensed claims adjuster in Mississippi and Georgia, but not in Louisiana. A hearing on the matter was held on January 15, 2016. On February 5, 2016, the workers’ compensation court signed a judgment denying Relator’s motion to compel Defendants’ retention of a Louisiana adjuster. The workers’ compensation court concluded that it does not have subject matter jurisdiction to determine the issue of whether an employer or insurer has complied with La.R.S. 23:1161.1 because such issues are regulated by the Louisiana Commissioner of Insurance. Relator also seeks review of the ruling which denies her motion to compel.

Relator has filed two separate writ applications with this court. Our review of the workers’ compensation court’s ruling which denied Relator’s motion to compel Defendants to retain a claims adjuster in Louisiana is discussed in the companion case, Darline Broussard v. Dillard Department Stores, Inc., et al., 16-134. Our review of the workers’ compensation court’s ruling which denied Relator’s motion to strike Dillard’s’ request for a preliminary determination hearing and for protection from a claim for penalties and attorney’s fees is discussed below.

DISCUSSION OF THE MERITS

“The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La. Code Civ.P. art. . 2083, comment (b), | /‘Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs.” (Citation omitted.)

Relator asserts that the workers’ compensation court erred when it denied her motion to strike and found that Dillard’s is entitled to a preliminary determination hearing as provided for in La.R.S. 23:1201.1. The procedure for denying or modifying a claim for workers’ compensation benefits is set forth in La.R.S. 23:1201.1, which provides, in pertinent part, as follows:

A. Upon the first payment of compensation or upon any modification, suspension, termination, or controversion of compensation or medical benefits for any reason, including but not limited to issues of medical causation, compensability of the claim, or issues arising out of R.S. 23:1121, 1124, 1208, and 1226, the employer or payor who has been notified of the claim, shall do all of the following:
(1) Prepare a “Notice of Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits”.
(2) Send the notice of the initial indemnity payment to the injured employee on the same day as the first payment of compensation is made by the payor after the payor has received notice of the claim from the employer.
(3) Send a copy of the notice of the initial payment of indemnity to the office ■within ten days from the date the original notice was sent to the injured employee or by facsimile to the injured employee’s representative.
(4) Send the “Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” to the injured employee by certified mail, to the address at which the employee is receiving payments of compensation, on or before the effective date of a modification, suspension, termination, or controversion.
(5) Send a copy of the “Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” to the office on the same business day as sent to the employee or to his representative.
|SB. The form of the “Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” shall be promulgated by the office.
C. The director shall make the notice available upon request by the employee and the employee’s representative.
D. If the injured employee is represented by an attorney, the notice shall also be provided to the employee’s representative by facsimile. Proof that the notice was sent to the employee’s representative by facsimile shall be prima fa-cie evidence of compliance with Subsection A of this Section.
E. The provisions of this Section shall not apply to questions of medical necessity as provided by R.S. 23:1203.1.
F. (1) Any injured employee or his representative who disagrees with any information provided on the notice form sent by the employer or payor, shall notify the employer or payor of the basis for disagreement by returning the form to the employer or payor as provided on the form, or by letter of amicable demand, and provide any amounts of compensation he believes appropriate.
(2) No disputed claim shall be filed regarding any such disagreement unless the notice required by this Section has been sent to the employer or payor who initially sent the notice.
G.(1) If the employer or the payor provides the benefit that the employee claims is due, including any arrearage, on the returned form or letter of amicable demand within seven business days of receipt of the employee’s demand, the employer or payor shall not be subject to any claim for any penalties or attorney fees arising from the disputed payment, modification, suspension, termination, or controversion.
(2) If the employer or payor does not provide the benefit that the employee claims is due, the employee may file a disputed claim for benefit provided it is filed within the prescriptive period established under R.S. 23:1209. If the prescription date of the claim occurs within the seven-day waiting period, the employee will be allowed to file a disputed claim without waiting the seven business days as provided in Paragraph (1) of this Subsection. However, the employer or payor shall still be allowed seven business days to provide the benefit that the employee claims is due, and if the employer does provide the benefit, the disputed claim will be moot regarding the issues arising out of the payment, suspension, modification, termination, or controversion of benefits. All other issues alleged in the disputed claim will be unaffected by the payment.
|flH. The employer or the payor who wishes to have a preliminary determination hearing shall request the hearing in his answer to the disputed claim arising from the notice of initial payment or any subsequent modification, suspension, termination, or notice of controversion. In cases where a disputed claim is already pending when an issue arises from a subsequent notice of payment, modification, suspension, termination, or contr-oversion of benefits, such request shall be made in an amended pleading filed within fifteen days of the expiration of the seven-day period set forth in Paragraph (G)(1) of this Section.
I. (1) An employer or payor who has not complied with the requirements set forth in Subsection A through E of this Section or has not initially accepted the claim as compensable, subject to further investigation and subsequent controversion shall not be entitled to a preliminary determination. An employer or payor who is not entitled to a preliminary determination or who is so entitled but fails to request a preliminary determination may be subject to penalties and attorney fees pursuant to R.S. 23:1201 at a trial on the merits or hearing held pursuant to Paragraph (K)(8) of this Section.
(2) If disputed by the parties, upon a rule to show cause held prior to the preliminary determination or any hearing held pursuant to this Section, the workers’ compensation judge shall determine whether the employer is in compliance.
J. (1) Upon the filing of the request for a preliminary determination hearing, the workers’ compensation judge shall initiate a telephone status conference with the parties to schedule the discovery deadlines and to facilitate the exchange of documents. The scope of the discovery will be limited to the issues raised in the disputed payment, suspension, modification, termination, or contr-oversion of benefits. The preliminary determination hearing shall be a contradictory hearing at which all parties shall have the opportunity to introduce evidence.
(2) The testimony of physicians may be introduced by certified records or deposition. The parties may agree to allow uncertified medical records and physician reports to be introduced into evidence. Witnesses may testify at the hearing or, if agreed on by the parties, may offer testimony by introduction of a deposition.
(3) The preliminary determination hearing shall be held no later than ninety days from the scheduling conference. However, upon a showing of good cause, one extension of an additional thirty days is permitted upon approval by the workers’ compensation judge. The workers’ compensation judge shall issue a preliminary determination no later than thirty days after the hearing.
|7(4) Any employer or payor requesting a preliminary determination hearing shall produce all documentation relied on by the employer or payor in calculating, modifying, suspending, terminating, or controverting the employee’s benefits. These documents shall be disclosed to the employee or the employee’s representative within ten days of the request for the preliminary determination hearing.

The jurisprudence has summarized the pertinent parts of La.R.S. 23:1201.1 as follows:

Louisiana Revised Statute 23:1201.1, as enacted by Acts 2013, No. 337, provides that employers may request a preliminary determination hearing in their answer to a disputed claim for compensation. LSA-R.S. 23:1201.1(H). Pursuant to the statute, when a request for a preliminary determination hearing is made, the workers’ compensation judge shall initiate a telephone status conference with the parties to schedule discovery deadlines and facilitate the exchange of documents. LSA-R.S. 23:1201.1(J)(3). The preliminary determination hearing shall then be held within ninety days of this status conference, with one thirty-day extension permitted. LSA-R.S. 23:1201.1(J)(2). An employer or payor who has not complied with the requirements set forth in Subsection A through E of this Section or who has not initially accepted the claim as compensable, subject to further investigation and subsequent controversion, shall not be entitled to a preliminary determination. . An employer or payor who is not entitled to a preliminary determination or who is so entitled but fails to request a preliminary determination may be subject to penalties and attorney fees pursuant to LSA-R.S. 23:1201 at a trial on the merits or hearing held pursuant to Paragraph (K)(8) of this Section. LSA-R.S. 23:1201.1(I)(1).

Albert v. Strategic Restaurants Acquisition Co., LLC, 14-1001, pp. 4-5 (La.App. 1 Cir. 12/23/14), 168 So.3d 507, 511 (Emphasis omitted).

In the instant case, Relator asserts that the workers’ compensation court erred in finding that, under La.R.S. 23:1201.1, Dillard’s is entitled to a preliminary determination hearing and protection from having a claim for penalties and attorney’s fees filed against it. Relator notes that, pursuant to La.R.S. 23:1201.1, an employer entitled to a preliminary determination hearing is immune from having an employee file a claim against it for penalties and attorney’s fees as a | ^result of that employer’s termination or modification of the employee’s workers’ compensation benefits. However, Relator points out that La.R.S. 23:1201.1(I)(1) provides that “[a]n employer or payor who has not complied, with the requirements set forth in Subsection A through E of this Section or has not initially accepted the claim as compensable, subject to further investigation and subsequent controversion shall not be entitled to a preliminary determination.” (Emphasis added). Relator maintains that the wording of La.R.S. 23:1201.1(I)(1) includes the use of double negatives which should be interpreted as creating an affirmative duty for the employer to both comply with the requirement of Subsection A through E and to initially accept the employee’s claim as compensable.

Relator acknowledges that Dillard’s complied with the procedural requirements set forth in La.R.S. 23:1201.1(A) through (E). Relator takes the position, however, that Dillard’s did not initially “accept her claim as compensable,” as required by La. R.S. 23:1201.1(I)(1). Relator argues that the legislative intent behind La.R.S. 23:1201.1 is to protect an employer from the risk of claims for penalties and attorney’s fees only if that employer fully accepts the workers’ compensation claim as compensable. According to Relator, Dillard’s cannot be deemed to have “accepted the claim as compensable” because Dillard’s filed an answer rejecting the Relator’s claim, contesting both liability and compensation, and raising affirmative defenses to the claim. In that regard, Relator notes that Dillard’s not only terminated her TTD benefits in spite of her treating physicians’ opinions regarding her ability to work, but that Dillard’s' also disputes every aspect of Relator’s claim,' including the question of whether' a compensable accident even occurred and whether such an accident occurred during the course and scope of Relator’s employment.

lain support of her position, Relator relies on the interplay between La.R.S. 23:1201.1 and La.R.S. 23:1204. Relator notes .that pursuant to La.R.S. 23:1204, “[njeither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Chapter.” Relator maintains that La. R.S. 23:1204 offers the employer/insurer an incentive or “carrot,” by allowing employers to tender payment of workers’ compensation benefits without the necessity of having to accept liability for the claim. Thus, Relator contends that La.R.S. 23:1204 encourages employers to initiate the payment of workers’ compensation benefits while conducting an investigation to determine if they are in fact liable for the claim. Relator further contends that by initiating benefits, employers escape liability for penalties and attorney’s fees, which are generally recoverable under La.R.S, 23:1201 if the employer fails to timely pay workers’ compensation benefits or for the arbitrary and capricious discontinuance of benefits.

Relator argues that while La.R.S. 23:1204 offers the employer the “carrot” of being able to pay benefits without admitting liability, La.R.S. 23:1201.1 offers Relator both a “carrot” and a “stick.” In that regard, Relator contends that the legislative intent behind La.R.S. 23:1201.1 is to provide employers/insurers with 1) the “carrot” of being exempted from claims for penalties and attorney’s fees if they accept liability for the employees’ claims, and 2) the "stick” of being subjected to penalties and attorney’s fees if they do not accept •the claim as compensable.

In their opposition to the writ application, Defendants (Dillard’s and Gallagher Bassett) assert that the workers’ compensation court properly denied Relator’s motion to strike their request for a preliminary determination hearing. Defendants contend that under the clear language of La.R.S. 23:1201.1, employers | mare entitled to a preliminary hearing if they either have complied with the procedural requirements of La.R.S. 23:1201.1(A) through (E) or have accepted the employee’s claim as compensable. In the instant case, Defendants note that Relator does concede that Defendants have complied with Subsections A through E. According to Defendants, that is all that is required for them to be entitled to a preliminary determination hearing and protected- from a claim for penalties and attorney’s fees.

Nevertheless, Defendants contend that, even if Relator were correct in her assertion that the employer is also required to accept the employee’s claim as compensa-ble in order to be exempted from a claim for penalties and attorney’s fees, they have met that requirement as well. Defendants maintain that the phrase, “accepted the claim as compensable,” means that the employer must have voluntarily paid workers’ compensation benefits to the employer. Defendants note that they have voluntarily paid for Relator’s medical benefits and have paid indemnity benefits to her for nearly two years. Thus, Defendants argue that they have accepted Relator’s claim as compensable.

Relator raises for the first time the argument that the workers’ compensation court erred by allowing the preliminary determination hearing to proceed and by not excluding twenty-two exhibits that were introduced by Dillard’s at the preliminary determination hearing. Initially, in her writ application, the sole assignment of error listed was the assertion that the workers’ compensation court’s ruling denying Relator’s motion to strike Defendants’ request for a preliminary determination hearing was erroneous because Defendants had not satisfied the requirement of initially accepting Relator’s claim as compensable. At any rate, in her reply to the opposition, Relator points out, for the first time, that the | ^preliminary determination hearing was actually held on the same day as the rule to show cause hearing for Relator’s motion to strike Defendants’ request for a preliminary determination hearing. Relator argues that Dillard’s violated La.R.S. 23:1201.1 by failing to disclose the twenty-two exhibits, which Dillard’s introduced at the preliminary determination hearing, to Relator within the ten-day period set forth in La.R.S. 23:1201.1(J)(4). Relator notes that La.R.S. 23:1201.1(L) provides that the failure to comply with any provision in La.R.S. 23:1201.1 results in the loss of the employer’s safe harbor protection from claims for penalties and attorney’s fees. Thus, Relator asserts that the workers’ compensation court erred by not striking the twenty-two exhibits at issue and by allowing the preliminary determination hearing to proceed after Dillard’s violated La.R.S. 23:1201.1(J)(4).

However, as pointed out by the workers’ compensation court, there is a difference between those documents that the employer relied upon to make its decision to modify Relator’s award and those documents that the employer seeks to introduce into evidence at a preliminary determination hearing. Further, the workers’ compensation court also noted that La.R.S. 23:1201.1(J)(4) requires, within ten days of requesting a preliminary determination hearing, the employer to disclose to the employee the documentation that the employer relied on in making its decision to modify the employee’s workers’ compensation benefits. The workers’ compensation court found that Dillard’s sufficiently complied with La.R.S. 23:1201.1(J)(4) because the two documents on which Dillard’s relied in making the decision to modify Relator’s benefits, i.e., Dr. Foster’s opinion about Relator’s abilities and a job offer for sedentary work, were forwarded by Dillard’s’ attorney to Relator’s counsel on September 3, 2015, before Defendants even filed their request for a preliminary hearing. Under the factual circumstances of this h2case, the workers’ compensation court properly found that Defendants sufficiently complied with La.R.S. 23:1201.1(J)(4).

With regard to the issue of Relator’s motion to strike Defendants’ request for a preliminary hearing, we agree with Defendants that, pursuant to La.R.S. 23:1201.1(I)(1), Defendants are entitled to a preliminary determination hearing and protection from a claim for penalties and attorney’s fees. The parties agree that Defendants have complied with La.R.S. 23:1201.1(A) through (E). Even if Relator were correct in her assertion that La.R.S. 23:1201.1(I)(1) imposes on Defendants the additional requirement (as opposed to an alternative requirement) of having to prove that they have accepted Relator’s claim as compensable, that requirement has been satisfied by Defendants. Defendants have consistently paid medical and some form of indemnity benefits to Relator since she had her alleged accident in 2014. While the statute does not provide any definitions as guidance, Relator is seeking to have this court interpret the phrase “accepting the claim as compensable,” as used in La.R.S. 23:1201.1(I)(1), to mean that there must be an admission of liability for a claim, rather than just a voluntary payment of the claim. However, as noted by Defendants, such an interpretation runs afoul of the principle set forth in La.R.S. 23:1204, which provides that an employer’s payment of workers’ compensation benefits does not amount to an admission of liability.

For the foregoing reasons, we find that the workers’ compensation court correctly denied Darline Broussard’s motion to strike Dillard’s’ request for a preliminary determination hearing and for protection from a claim for penalties and attorney’s fees. As such, Darline Broussard’s writ application is denied. Costs of these proceedings are assessed to Relator, Darline Broussard.

WRIT DENIED.


author: KEATY, Judge.

text:
    Dexton BRYANT v. XTREME MACHINES, LLC
    16-693
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 12/14/2016

      H. Dean Lucius, Jr., Kirby D. Kelly, Law Office of Kirby D. Kelly, 515 Spring Street, Shreveport, Louisiana 71101, (318) 459-1885, Counsel for Plaintiff/Appellee: Dexton Bryant
    Joseph J. Valencino, III, Burglass & Tankersley, LLC, 5213 Airline Drive, Me-tairie, Louisiana 70001, (504) 836-0416, Counsel for Defendant/Appellant: Xtreme Machines, LLC
    Court composed of Jimmie C. Peters, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

| jXtreme Machines, LLC appeals a default judgment rendered against it and in favor of Dexton Bryant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 13, 2015, Bryant filed a Petition for Personal Injuries against Xtreme, alleging that he was injured on April 13, 2014, when the front left tire of his 2007 GMC pickup truck “came off causing the vehicle to leave the roadway in a curve, striking a group of pine trees.” According to the petition, Xtreme had installed a lift kit on Bryant’s truck at an earlier date and had not made him “aware that the shearing off of the lug bolts had taken place making it a dangerous situation” to him and his passengers. Bryant obtained a preliminary default against Xtreme on September 15, 2015. At an April 19, 2016 confirmation of default hearing, Bryant testified and presented documentary evidence in support of his claims for damages. The trial court signed a judgment of default on May 9, 2016, in favor of Bryant and against Xtreme awarding Bryant $11,857.50 in medical expenses; $7,900.00 in property damage (for the lift kit, tires, and wheels); and $50,000.00 in general damages (pain and suffering/bodily injury). Xtreme filed a motion for devolutive appeal.

ASSIGNMENTS OF ERROR

Xtreme asserts the following assignments of error on appeal:

1) The record does not reasonably support that Bryant established a prima facie case of negligence against Xtreme Machines. The trial court erred in admitting evidence which lacked sufficient facts to establish the required negligence elements.
2) Assuming, for the sake of argument, that Bryant’s medical records were competent evidence, they do not support a $50,000 general damages award. $50,000 is excessive and the trial court erred in awarding that amount.

J^DISCUSSION

Standard of Review

In reviewing default judgments, appellate courts are restricted to determining the sufficiency of the evidence offered in support of judgment. Although there is a presumption that the evidence presented supports a default judgment, this presumption does not attach when the record of the confirmation hearing is before the appellate court. In such a case, the reviewing court is able to determine from the record whether the evidence upon which the judgment is based was sufficient and competent.... However, the trial court’s conclusion concerning the evidence’s sufficiency presents a factual issue which the manifest error rule governs. The manifest error standard of review obligates appellate courts to give great deference to the trial court’s findings of fact. We will not reverse factual determinations, absent a finding of manifest error.

Bordelon v. Sayer, 01-0717 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235, (citations omitted), writ denied, 02-1009 (La. 6/21/02), 819 So.2d 340.

General Law Concerning Default Judgments

This court recently discussed default judgments in Burley v. New York Life Insurance Co., 15-263, p. 4 (La.App. 3 Cir. 11/25/15), 179 So.3d 922, 928, where we noted:

Louisiana Code of Civil Procedure Article 1701(A) allows a judgment of default to be entered against a defendant who fails to answer within the time prescribed by law. Confirmation of a default judgment under La.Code Civ.P. art. 1702(A) requires “proof of the demand that is sufficient to establish a prima facie case.”

According to La.Code Civ.P. art. 1702(B)(2):

When a demand is based upon a delic-tual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

lain addition, “[w]hen the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.” La.Code Civ.P. art. 1702(D).

For a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits.

Burley, 179 So.3d at 928 (quoting Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989) (citations omitted)).

Assignment of Error Number One

Xtreme contends that the trial court erred in admitting evidence lacking sufficient facts to establish its negligence and that Bryant failed to establish a pri-ma facie case of negligence against it. Bryant counters that his testimony coupled with the evidence he presented at the confirmation hearing, which included certified medical records documenting his injuries, supplied the trial court with evidence sufficient to support the default judgment in his favor.

At the start of the April 19, 2016 confirmation of default hearing, Bryant’s counsel offered the following exhibits into evidence: 1) a copy of the accident report completed by the Sabine Sheriffs Office on April 13, 2014; 2) a handwritten note dated February 14, 2014; 3) nineteen photographs; 4) a Notice of Service issued by the Clerk of Court of April 22, 2015, showing that personal/domiciliary service was made on Xtreme through Scott Dowden on April 20, 2015; and 5) medical records.

At the confirmation hearing, Bryant testified that he contacted Xtreme in 2014 about putting a lift kit and tires onto his truck. He explained that a lift kit |4“lifts your truck higher so you can run bigger tires and wheels.” In conjunction with that testimony, Bryant’s attorney referred to the handwritten note offered into evidence. The note was dated February 14, 2014, and the words “Xtreme Machines” appeared to the right of the date. The remainder of the note said:

For Dexter Bryant
Lift, Tires & Wheels
Toyo Open Country $8400
w/ Fuel Tires $7,900

A signature appeared at the bottom of the note. According to Bryant’s attorney, the note was a quote from Xtreme’s manager telling Bryant how much Xtreme would charge for the work, depending on which tires he chose. Bryant testified that he had the work done at a cost of “around $8,000.00.” Bryant stated that he was told that an invoice would be left in the truck after the work was completed, but no invoice was in the truck when he picked it up from Xtreme. In addition, Bryant confirmed that he received no warnings from Xtreme or any indication that his truck had been damaged. Bryant stated that after the lift kit was installed, his truck “shook really bad” and he started noticing “very bad wearing” on his tire. He explained that he was driving home after church on April 13, 2014, when his truck began shaking “differently that it normally shaked [sic].” (Alteration in original.) Bryant stated:

And the next thing I remember, my truck, like, slammed down. Well, the tire fell off then my backend came up and my truck was standing straight up, almost, and it shot me into the ditch[,] and I hit some trees[,] and the next thing I remember is waking up under the dash.

Bryant stated that an officer from the sheriffs department came to the scene of the accident and conducted an investigation. WTien questioned by his attorney as to whether the police told him why his vehicle crashed, Bryant answered, “Yes. They | Rtold me that studs had been broken previously due to the work and was welded back on.” He explained that as a result, the tires leaned inward and “weared off.” Bryant stated the police told him that when the bolts broke, “[t]hey all sheared off and there was some that was torqued too much sheared off and caused my tire to come off.” In answering a question posed to him by his attorney as to whether the police told him that they had seen this type of accident before, Bryant answered, “Yes, many of times.” In response to a follow-up question from his attorney as to whether the police had “seen it from this particular company, Bryant replied, ‘Yes, they did.”

Bryant stated that he went by ambulance to the hospital in Many, Louisiana. He was told that he had a concussion of the front and back sides of his head, but that he should be “allright [sic] and could go home.” Because he “wasn’t feeling very good,” the next day, Bryant went to Willis-Knighton Medical Center where he was told that he had “a possible brain bleed and very bad concussions — and my lower back.” According to Bryant, he was never the same after the accident, and he has constant headaches and back pain. Bryant stated that he was told that he had “lower back spasms,” that his back was “messed up tremendously,” and that he might need to be evaluated for surgery in the future. Bryant testified that he was told that his concussions were like those “that football players get” and that “it could be a long time ‘til [he] stop[ped] having headaches and memory loss.”

In the accident report, Nathan Firesh-eets, the officer who investigated the accident, noted that “[u]pon looking at the front left axle the lug bolt studs were sheared off’ and “[t]he inner side of the tires were heavy woring [sic] [and] no tread was left.” He listed the truck’s tire failure as the most harmful event contributing to the accident. Officer Firesheets estimated that the truck “traveled |fi55 feet” off the highway before stopping after striking “a group of pine trees.” He documented that the front and passenger side of Bryant’s truck were heavily damaged, but the airbags did not deploy. Officer Firesheets further noted that although “Bryant had his seat belt on,” he “hit his head on the steering wheel” and was “transported to Sabine Medical Center via Med Express [ambulance].” He classified Bryant’s injuries as a “C,” meaning they were “non-incapacitating/moderate.” Finally, he noted that Bryant’s vehicle was towed from the scene of the accident.

According to the certified medical records from Sabine Medical Center, when Bryant presented there on April 13, 2014, he complained of injuries to his head, neck, and middle back. He underwent an EKG and a chest x-ray, and he received CT scans of his abdomen, head, and pelvis. The examining physician diagnosed Bryant with multiple sprains and contusions and discharged him with instructions to return to the emergency room if his symptoms worsened. He was also told to follow up the next day with Dr. Husam Sukerek, his primary-care physician. He was given a form stating that he would have to be cleared for work by Dr. Sukerek. Bryant was seen by Dr. Sukerek on April 14, 2014. Notes from that visit indicate that Dr. Sukerek diagnosed Bryant with a concussion, headache, abrasions to his forehead and left leg, muscle spasms in his left leg, thoracic muscle strain, and contusions to his chest and upper right arm. Bryant was prescribed pain medication and a muscle relaxer. When Bryant returned to Dr. Sukerek’s office on April 29, 2014, his headache and concussion were improved, his forehead and left leg abrasions were resolving, and his chest and right arm contusions had resolved, but his thoracic muscle strain was getting worse and he was having lumbar muscle spasms. After examining Bryant on May 15, 2014, |7Pr. Sukerek signed a “Return to Work Status Form” releasing him to full duty, full-time work as of May 22, 2014. Certified medical records from Willis-Knighton indicate that Bryant sought treatment there just before noon on April 15, 2014. At the time, Bryant’s mother reported that he had experienced memory loss and confusion since the motor vehicle accident that occurred several days prior. After obtaining another CT scan of the brain, the examining physician diagnosed Bryant with a concussion without loss of consciousness, a closed-head injury, acute low-back pain, and post-concussion syndrome.

At the close of the confirmation hearing, Bryant’s attorney asked that judgment be rendered awarding Bryant medical special damages in the amount of $11,857.50; property damages of $7,900.00, which represented the amount Xtreme charged Bryant for the lift kit; and $50,000.00 for pain and suffering. As previously mentioned, a judgment of default was signed on May 9, 2016, in favor of Bryant and against Xtreme awarding him judgment in the amounts prayed for.

In Narcisse v. Gray, 12-190 (La.App. 3 Cir. 6/6/12) (unpublished opinion), the trial court rendered a default judgment in favor of a plaintiff who was injured in a motor vehicle accident. The record revealed that the plaintiff testified at the confirmation of default hearing as did the police officer who investigated the accident. In addition, the plaintiff submitted as evidence the police report, wherein the officer “noted very minor damage to the back of the vehicle and noted that no injuries were reported at the scene.” Id. at p. 1. Medical bills were also submitted on the plaintiff’s behalf. The trial court orally rendered judgment in plaintiffs favor in the amount of his medical bills. Several months later, the plaintiff filed a motion to supplement the record with additional medical evidence. The trial court hallowed the supplemental evidence and granted a default judgment awarding the plaintiff an increased amount of medical damages. On appeal, this court affirmed, finding that the plaintiff “presented sufficient evidence to establish that default judgment was proper” against the motorist who rear-ended the vehicle in which the plaintiff was a passenger. Id. at p. 4. We noted that “[tjhe medical evidence consisted of only a few pages of medical bills, without narratives or even a nurse’s triage or admitting report to document the nature of the patient’s complaints in the emergency room,” and that the trial court “awarded the cost of x-rays, even though there were no reports of the results of the x-rays.” Id.

In Howery v. Linton, 452 So.2d 295 (La.App. 2 Cir. 1984), a default judgment was rendered in favor of the plaintiff. In affirming, the second circuit noted:

Plaintiff testified that she received a bill from the ambulance service for $140 and a bill from the hospital for x-rays for $88. The trial judge allowed these bills into evidence and allowed plaintiff $228 in special damages. Defendant complains that special damages should not have been allowed because the bills were inadmissible hearsay. We find no error in the allowance of special damages or in the admissibility of the bills.
Plaintiff established that it was apparently necessary for her to be taken by ambulance to a hospital. She established that she was x-rayed at the hospital and was released on the date of the incident in the bar. The expenses she said she incurred are not unreasonable in amount. The fact that she received the bills in the amount shown is not inadmissible hearsay, and to this extent, the bills were admissible, even though they might not have been admissible to independently prove that services were necessary or that the expenses incurred by her were reasonable.

Id. at 296.

The first circuit held in Tucker v. Howes, 413 So.2d 585 (La.App. 1 Cir. 1982), that when the trial court in confirming a default judgment makes a | credibility determination, such determination should not be overturned on appeal unless it is manifestly erroneous.

After a careful review of the testimony and evidence presented at the confirmation of default hearing, we cannot say that the trial court committed manifest error in finding that Bryant was injured and suffered general and special damages as a result of Xtreme’s negligence such that default judgment was properly rendered in his favor. Xtreme’s first assignment of error lacks merit.

Assignment of Error Number Two

Xtreme has not challenged the trial court’s award of special damages to Bryant in the amount of $11,857.50 or its award of $7,900.00 in property damages. It contends, however, that the $50,000.00 in general damages awarded to Bryant is excessive and not supported by the evidence given that he treated for only two months after the accident and that the CT scans performed in the emergency room immediately following the accident were all normal. It cites two decisions rendered by the second circuit in support of its contention that Bryant’s general damage award should be reduced to between $20,000.00 and $25,000.00. See Hughes v. Scottsdale Ins. Co., 35,043 (La.App. 2 Cir. 8/22/01), 793 So.2d 537 (on appeal, the jury’s $5,000.00 general damage award was raised to $20,000.00, the lowest amount which would adequately compensate plaintiff involved in a motor vehicle accident who sustained soft-tissue injuries, headaches, and post-concussion syndrome with attendant memory loss and impairment that persisted five years after the accident); Johnston v. Shelton, 42,103 (La. App. 2 Cir. 6/27/07), 961 So.2d 582 (appellate court found that $25,000.00 general damage award was not an abuse of discretion where plaintiff injured in a motor vehicle accident suffered post-j lflconcussion syndrome lasting one year post accident and an aggravation of pre-existing muscu-loskeletal pain and depression).

Bryant counters that the amount of general damages awarded to him by the trial court was not excessive given his documented medical expenses of $11,857.50 and his testimony that he began having migraines after the accident and was still suffering from headaches and back pain at the confirmation hearing approximately two years after the accident. He likens his injuries to those suffered by the plaintiff in Lenard v. State Farm Mutual Automobile Insurance Co., 39,580 (La.App. 2 Cir. 4/20/05), 900 So.2d 322. The plaintiff in Leñará was transported by ambulance to the hospital following a motor vehicle accident where he complained of head, neck, and low-back pain. He began having migraines after the accident, which continued for three years post-accident. In addition, at trial five years after the accident, his neck and back pain were still present and affecting his activities and sleep. The second circuit affirmed the trial court’s $50,000.00 general damage award to the plaintiff. The plaintiff’s medical bills in Le-ñará totaled $15,909.58. We also note that x-rays taken at the hospital immediately after the accident, as well as an x-ray taken two months after the accident revealed only degenerative changes to the Lenard plaintiffs spine and no fractures or acute injury.

In Smith v. Clement, 01-87, p. 7 (La.App. 3 Cir. 10/3/01), 797 So.2d 151, 157, writs denied, 01-2878, 01-2982 (La. 1/25/02), 807 So.2d 249, 843, we noted:

An award of damages is a determination of fact which is entitled to great deference on review. There must be an abuse of discretion by the trial court before the award can be disturbed on appeal. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976). As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be 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, 1260 (La.1993), writ denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

In the instant case, the accident report shows that Bryant complained of and exhibited injuries to his head immediately after the accident. The invoice from the ambulance indicates that a C-collar was placed around Bryant’s neck and that he was placed on a long spine board for transportation to the hospital. At the hospital, he was diagnosed with multiple sprains and contusions. The next day, Bryant sought treatment with his primary-care physician, Dr. Sukerek, and he was found to be suffering from a concussion, headache, and muscle spasms and strain. Two days after the accident, Bryant’s continued pain in his low back and right arm coupled with his new symptoms of memory loss and confusion led to his seeking additional treatment at Willis-Rnighton. At that time, the examining physician diagnosed Bryant with concussion and post-concussion syndrome, along with acute low back pain. At the confirmation hearing, Bryant testified that he continued to suffer from constant headaches and back pain. In confirming a default judgment in Bryant’s favor and in awarding him $50,000.00 in general damages, the trial court found Bryant’s testimony to be credible. We find no manifest error in that finding. See Tucker, 413 So.2d 585. Moreover, in light of the cases cited by both Xtreme and Bryant, we find no abuse of discretion in the amount of general damages awarded by the trial court. Thus, there is no merit to Xtreme’s second assignment of error.

DECREE

For the foregoing reasons, the default judgment rendered in favor of Dexton Bryant and against Xtreme Machines, LLC, is affirmed. Costs of this appeal are assessed against Xtreme Machines, LLC.

I ^AFFIRMED.

      . According to his attorney, insurance paid for the damages to Bryant’s vehicle.