author: BLEICH, J. (Pro Tempore)

text:
    Terany GOLDSBY, Plaintiff-Appellant v. David BLOCKER and State of Louisiana, THROUGH the DEPTARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellee
    No. 51,584-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017
    EDDIE M. CLARK & ASSOCIATES, L.L.C., By: Eddie M. Clark, Counsel for Appellant
    JEFF LANDRY, Attorney General, C. BRYAN RACER, Assistant Attorney General, Counsel for Appellee
    Before PITMAN, COX, and BLEICH (Pro Tempore), JJ.
   BLEICH, J. (Pro Tempore)

This appeal is from the Fourth Judicial District Court, Ouachita Parish, Louisiana. After an automobile collision, Terany Goldsby filed suit against the State of Louisiana through the Department of Transportation and Development ("DOTD") and its employee, David Blocker. After a trial, the jury returned a verdict assigning comparative fault and awarding to Goldsby general damages and medical expenses, and judgment was entered. Goldsby appeals. For the following reasons, we affirm the trial court's judgment.

FACTS

On November 11, 2013, around 1:50 p.m., Terany Goldsby was driving west on "Perryville" Highway 554, Ouachita Parish, Louisiana, to bring her niece to the Navy recruitment office. Perryville Hwy. is a two lane stretch of highway with no improved shoulder and is marked "no passing." As Goldsby pulled up behind a DOTD dump truck, she stopped her Chevrolet Cobalt and waited for the dump truck to move forward. The dump truck, operated by David Blocker, a DOTD employee, did not pull forward, but instead reversed into Goldsby's vehicle, crushing her vehicle's front end with the dump truck's open tailgate.

At the time of the incident, Blocker had two other DOTD employee passengers with him, and they were using the dump trunk full of asphalt to patch potholes on Perryville Hwy. Blocker had stopped the dump truck to fix a pothole, but had overshot it, requiring him to reverse for a better position. It is undisputed that neither of the other two DOTD employees acted as a "spotter" for Blocker before he began to reverse the dump truck, a DOTD policy requirement. Blocker was cited as "at fault" by the responding officer, reprimanded by his manager for not following policy, and fully accepted fault for the collision at trial.

About one month before this collision, Goldsby had returned to Louisiana after a five-year tour serving with the U.S. Navy. After a full physical examination, she was discharged in good medical condition. On the day of the collision, Goldsby did not complain of injury, but began to have neck and back pain in the following days. She sought treatment with Dr. Gordon Grant, chiropractor, from December 9, 2013, until January 13, 2014.

In January 2014, Goldsby moved to New Orleans, Louisiana, and began seeing Dr. Ryan Russo for continued chiropractic treatment. Dr. Russo referred Goldsby to Dr. Kenneth Vogel, neurosurgeon, for an MRI and evaluation. The MRI was taken in March 2014, but Goldsby did not review this MRI with Dr. Vogel until after she was involved in a second vehicular collision.

On April 2, 2014, Goldsby's vehicle was rear-ended by another driver while stopped at a traffic signal. Subsequent to this second collision, Goldsby went to an appointment with Dr. Vogel, who went over her March 2014 MRI results, which showed disc bulging at L5-S1. Dr. Vogel recommended continued conservative treatment; however, Goldsby discontinued all recommended treatment. A year later she returned to Dr. Russo, who again referred her to Dr. Vogel. In May 2015, Dr. Vogel sent Goldsby for a CT scan which also revealed disc bulging at L5-S1. In July 2015, Goldsby elected to have an intradiscal electrothermal therapy procedure ("IDET"), which is a minimally invasive treatment for spinal disc-related chronic low back pain. The IDET was successfully performed by Dr. Vogel without complications.

Goldsby ultimately filed suit against Blocker and DOTD, claiming her injuries were caused by Blocker during the first collision with the DOTD dump truck. Multiple motions for partial summary judgment were filed by both Goldsby and DOTD, and all were denied. A five-day jury trial commenced in April 2016.

A primary issue at trial was what role each collision played in causing the disc bulging and eventual surgery. During opening statements, defense counsel stated to the jury that Goldsby had received a settlement from the second collision which covered the cost of her medical bills. Goldsby objected to the statement and later testified that the settlement she received was from an unrelated matter with Sallie Mae concerning student loans and not related to the second collision. Goldsby requested a curative instruction be given to the jury to clarify the matter, but the parties could not agree on the wording for a curative jury instruction, and none was given.

After all testimony and evidence was presented at trial, Goldsby made oral motions for directed verdict as to fault and causation. The trial court denied the motion in regard to fault, finding there were some potential comparative fault issues. The trial court partially granted the motion for directed verdict concerning causation, finding that this collision clearly caused some damage to Goldsby, but that it was for the jury to determine the extent of the damage caused by the collision with the DOTD dump truck.

The jury returned a verdict finding both parties to the collision at fault, allocating 95% of the fault to Blocker/ DOTD and 5% to Goldsby. The jury awarded Goldsby the following amounts as compensation for the damages she sustained as a result of the collision: $15,000.00, pain and suffering; $15,000.00, mental anguish; $25,000.00, medical expenses; and, $15,000.00, loss of enjoyment of life. A subsequent judgment was rendered in Goldsby's favor awarding to her $66,500.00 together with legal interest-the total amount of damages awarded to her by the jury, less the 5% of her allocated fault. Goldsby appeals.

DISCUSSION

Allocation of fault

In assessing Goldsby with 5% of the fault, the jury found that her conduct of stopping too close to the dump truck, approximately one to two feet behind it, partially contributed to the cause of the collision and her resulting injuries; thus she is entitled to recover her damages reduced by a percentage thereof corresponding to her portion of comparative fault. In her first assignment of error, Goldsby argues the jury erred by charging her with 5% fault for the collision. We disagree. Based on the trial testimony, it was not clearly wrong for the jury to conclude that Goldsby stopped her vehicle too close to the back of the dump truck, and that her conduct contributed to the cause of the collision.

Since the Louisiana legislature's adoption of a comparative fault system, it has been the task of the fact finder to allocate shares of fault. La. C.C. art. 2323 ; Socorro v. City of New Orleans , 579 So.2d 931 (La. 1991). In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed.

Watson v. State Farm Fire & Cas. Ins. Co. , 469 So.2d 967, 974 (La. 1985) ; Upchurch v. State ex rel. La. Dep't of Transp. & Dev. , 48,34 (La. App. 2 Cir. 08/07/13), 123 So.3d 228, 232, writ denied , 2013-2153 (La. 11/22/13), 126 So.3d 489. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and, (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Socorro , supra , at 942. Because each of the above factors which may influence the respective degrees of fault are factual considerations, the manifest error/clearly wrong standard is applicable. Stobart v. State, Through DOTD , 617 So.2d 880 (La. 1993).

The trier of fact is owed great deference in its allocation of fault and may not be reversed unless clearly wrong. Clement v. Frey , 1995-1119, (La. 01/16/96), 666 So.2d 607 ; Jewitt v. Alvarez , 50,083 (La. App. 2 Cir. 09/30/15), 179 So.3d 645, 649. Fault allocation is a factual determination and the trier of fact, unlike the appellate court, has the benefit of viewing firsthand the witnesses and evidence. Clement , supra . To reverse a jury's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the jury's finding and that the record establishes that the finding is clearly wrong. Stobart , supra .

At trial, Blocker testified that he was operating the dump truck when the collision occurred. He stated that he had passed up a pothole, stopped the dump truck for about 30 seconds, and then began to reverse. In Blocker's estimation the dump truck had reversed about one foot at five miles per hour before he heard a crash. Blocker testified that prior to the accident he checked all the mirrors and did not see a vehicle behind him.

DOTD's Parish Maintenance Superintendent, Andre Pridgett, testified that the dump truck operated by Blocker was equipped with hazard lights, strobe lights, a backup alarm, and backup lights. Louisiana State Trooper William Woodward testified that the strobe lights on the dump truck were active when he arrived at the scene of the collision. Photographs taken by Tpr. Woodward show an orange light on top of the dump truck. The photographs taken at the scene of the accident also show that Goldsby's vehicle was not visible from the front of the dump truck; therefore, it was likely in Blocker's "blind spot" when he checked the mirrors before backing up. Another post-accident photograph taken from behind her vehicle shows that the dump truck's mirrors are not visible from that vantage point, i.e. , Goldsby had likely stopped so close to the back of the dump truck she could not see the mirrors of the dump truck, which should have indicated to her that the driver of the dump truck could not see her vehicle. Goldsby testified that she did not see the flashing warning lights or hear the backup beeping noises from the dump truck before impact.

After reviewing the record and applying the factors as set forth in Socorro , supra , and Watson , supra , to assess the nature of the conduct of each party, we find there is a reasonable factual basis for the jury's finding, and it was not manifestly erroneous in its allocation of fault. Given these factors, it was reasonable for the jury to conclude that Goldsby's close proximity to the DOTD dump truck somewhat contributed to the collision. This assignment of error is without merit.

Damages Award

In her second assignment of error, Goldsby argues the damages awarded by the jury are inconsistent with the medical evidence and abusively low. The jury awarded Goldsby $25,000.00 in medical expenses and $45,000.00 in general damages ($15,000.00 respectively: pain and suffering, mental anguish, and loss of enjoyment of life). Goldsby claims that the jury abused its discretion in awarding to her only half of her actual medical expenses, and seeks an increase in her awards for both medical and general damages. However, after reviewing the medical testimony, we find the awarded damages in this particular circumstance are not beyond that which a reasonable trier of fact could assess for the injury to Goldsby.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury and the accident which caused the injury. Maranto v. Goodyear Tire & Rubber Co. , 1994-2603 (La. 02/20/95), 650 So.2d 757 ; Henderson v. Gregory , 47,086 (La. App. 2 Cir. 06/20/12), 93 So.3d 818, 820, writ denied , 2012-1695 (La. 11/02/12), 99 So.3d 671. Proof must be by a preponderance of the evidence. Maranto , supra . The test for determining the causal relationship is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id. Causation is a question of fact and is subject to the manifest error standard of review. Green v. K-Mart Corp. , 2003-2495 (La. 05/25/04), 874 So.2d 838.

To obtain the benefit of the presumption of causation described in Housley v. Cerise , 579 So.2d 973 (La. 1991), the plaintiff must show that (1) she was in good health prior to the accident at issue; (2) subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves afterward; and, (3) through evidence, either medical, circumstantial or common knowledge, a reasonable possibility of causation between the accident and the claimed injury. Housley , supra . If the plaintiff can show these three elements, then she is entitled to a presumption of causation and the burden of proof shifts to the defendant to prove some other particular incident could have caused the injury of which the plaintiff complains. Zimmerman v. Progressive Sec. Ins. Co. , 49,982 (La. App. 2 Cir. 08/12/15), 174 So.3d 1230, 1240, writ denied , 2015-1955 (La. 11/30/15), 184 So.3d 36, recons. denied , 2015-1955 (La. 01/15/16), 184 So.3d 701. If the plaintiff cannot show these three elements, she is not entitled to a presumption of causation and the burden of proof does not shift to the defendant. Id. To rebut this presumption, the defendant must show that some other particular incident could have caused the injury in question. Detraz v. Lee , 2005-1263 (La. 01/17/07), 950 So.2d 557 ; Zimmerman , supra . The application of the Housley presumption of causation to the facts is also a question of fact and subject to manifest error review. Id.

A plaintiff may recover past medical expenses that she incurs as a result of an injury due to the fault of another. Bruce v. State Farm Ins. Co. , 37,704 (La. App. 2 Cir. 10/29/03), 859 So.2d 296, 304. To recover medical expenses, the plaintiff must prove that, more probably than not, the medical treatment was necessitated by the accident. Id.

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve "mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms." Bellard v. American Cent. Ins. Co. , 2007-1335 (La. 04/18/08), 980 So.2d 654. The discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. La. C.C. art. 2324.1 ; Zimmerman , supra . It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Zimmerman , supra . 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. Id. An appellate court may disturb a damage award only when the record clearly reveals that the jury abused its discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Id.

Dr. Gordon Gregory Grant, IV, an expert in chiropractic care, treated Goldsby from December 9, 2013, through January 13, 2014. He testified that Goldsby presented in his office with neck pain, upper back pain, low back pain, and headaches which she attributed to an automobile accident that occurred about two weeks before her initial appointment. The physical exam performed by Dr. Grant revealed a decreased normal range of cervical and lumbar motion. Orthopedic testing indicated nerve root irritation and injury to the low back and neck, as well as the thoracic spine. Dr. Grant performed digital palpation, confirming the existence of muscle spasms. He also ordered an X-ray that showed Goldsby had a decreased curvature of the spine. To reduce swelling and inflammation, Dr. Grant recommended cold therapy for Goldsby's back and a treatment plan of 3 visits per week for 15-20 weeks. Dr. Grant diagnosed Goldsby with back strain/sprain.

After about a month of treatment with Dr. Grant, 15 appointments in total, Goldsby moved to New Orleans seeking employment. Dr. Grant recommended Dr. Ryan Russo of Lakeside Chiropractic Clinic to Goldsby. Dr. Russo referred Goldsby to Dr. Kenneth Vogel, neurosurgeon. Dr. Vogel testified by video deposition that Goldsby related she was in relative good health until the incident in November 2013, which had caused back and left knee pain, and this pain was worsened by a second collision in April 2014. Dr. Vogel agreed with the radiologist concerning the 2014 MRI, showing cervical strain and herniated lumbar disc. His impression was that the symptoms described by Goldsby were likely caused by the collision on November 2013, with a doubling of pain after the April 2014 incident, and he recommended that Goldsby continue conservative treatment. Dr. Vogel testified that the next time he saw Goldsby was a year later, in June 2015. He re-evaluated her symptoms and noted continued cervical pain, with a mild degree of limited motion and muscle spasm, but knee pain resolving. Dr. Vogel noted Goldsby was unresponsive to conservative treatment and offered hospital admission for further evaluation. Goldsby underwent the IDET procedure a month later.

During the deposition, Dr. Vogel was asked which accident was responsible for the necessity of the IDET procedure. He testified that "the one that caused the pain initially and caused the abnormalities as shown on the MRI in all probability caused the injury. Now the second injury could have made it worse, but you and I will never know."

Dr. Blake McGehee, the defense expert who was not Goldsby's treating physician, agreed with Dr. Vogel that the second collision worsened Goldsby's injures. Goldsby also testified the second collision aggravated her back injuries.

The parties stipulated that Goldsby's medical bills total $46,449.71. Of that amount, $7,305.00 accrued after the first collision, but before the second, and $39,144.71 accrued after the second collision, with the majority of that amount attributable to combined charges related to the IDET procedure.

Goldsby demonstrated, through medical testimony, that more probably than not, the subsequent medical treatment was necessitated by the trauma suffered in the collision with the DOTD dump truck. Based on the evidence in the record it is unclear, and there is no medical evidence that can objectively show, which collision definitively necessitated the eventual IDET procedure to correct Goldsby's injuries. Goldsby established by her military discharge physical examination that she was in good medical health before the first collision; subsequent to the collision with the DOTD dump truck, symptoms of back injury appeared, and continuously manifested, leading to a reasonable possibility of causation between that collision and Goldsby's claimed injuries.

The question faced by the jury was whether the second collision caused or worsened Goldsby's injuries. The record reflects a lack of conclusive evidence that, more probably than not, the IDET procedure was necessitated by the first collision. The jury as fact finder is given vast discretion, and its findings shall not be disturbed on appeal absent a finding of abuse of that discretion. After review of the record in its entirety, we cannot find that the jury committed manifest error in awarding $25,000.00, roughly a little more than half Goldsby's proven total medical expenses, considering the fact that two collisions occurred and both likely contributed in some way to the eventual procedure undergone by Goldsby.

An appellate court may disturb a general damage award only when the record clearly reveals that the jury abused its discretion in making the award. Here, the jury awarded Goldsby $45,000.00. Based on the facts and circumstances peculiar to Goldsby, specifically the fact that she discontinued conservative treatment and went almost a year before returning to Dr. Russo, we do not find a clear abuse of discretion by the jury. Thus, this assignment of error is without merit.

Curative Jury Instructions

In her third assignment of error, Goldsby contends that the trial court erred by failing to issue a curative instruction to the jury after defense counsel in alluded to a settlement which may have paid some of Goldsby's medical expenses. Goldsby argues the trial court's failure to cure this misstatement concerning a settlement led to an abusively low damages award. Goldsby claims this is an error of law which requires de novo review. We disagree.

The parties are entitled to a fair trial uninfluenced by appeals to passion or prejudice. Henderson v. Louisiana Downs, Inc. , 566 So.2d 1059, 1063 (La. App. 2 Cir. 1990), writ denied , 569 So.2d 984 (La. 1990). However, counsel has great latitude in argument before a jury, subject to the regulation and control of the trial court, whose duty it is to make certain the argument stays within proper bounds. Ogletree v. Willis-Knighton Mem. Hosp. , 530 So.2d 1175 (La. App. 2 Cir. 1988), writ denied, 532 So.2d 133 (La. 1988). Unless the contrary is clearly shown, rulings on allegedly prejudicial improper argument or conduct of counsel are presumed to be within the trial court's great discretion.

Henderson , supra . The rulings of the trial court will not be reversed absent an abuse of such discretion. Id.

Evidence of a settlement or compromise between the plaintiff and another tortfeasor is ordinarily inadmissible. La. C.E. arts. 408, 409, and 413. A jury verdict will not be set aside because of an incorrect jury instruction absent a showing of prejudice such that the jury was misled and was unable to render a just verdict. Jeff Mercer, LLC v. State through Dep't of Transp. & Dev. , 51,371 (La. App. 2 Cir. 06/07/17), 222 So.3d 1017, 1023, reh'g denied (La. App. 2 Cir. 08/04/17).

The trial court is required to instruct jurors on the law applicable to the cause submitted to them, and may give additional instructions when appropriate. La. C.C.P. arts. 1792 -93, 1796; Jeff Mercer , supra. Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. Jeff Mercer, supra . The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems appropriate. Id. The charge must correctly state the law and be based on evidence adduced at trial. Id.

Trial courts are given broad discretion in formulating jury instructions, and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. Peironnet v. Matador Resources Co. , 2012-2292 (La. 06/28/13), 144 So.3d 791 ; Jeff Mercer , supra . Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Simmons v. Christus Schumpert Med. Ctr. , 45,908 (La. App. 2 Cir. 06/15/11), 71 So.3d 407, 425, writs denied , 2011-1591-92 (La. 10/07/11), 71 So.3d 317-8. The rule of law requiring an appellate court to exercise great restraint before upsetting a jury verdict is based, in part, on respect for the jury determination rendered by citizens chosen from the community who serve a valuable role in the judicial system. Id. This policy requires an appellate court to presume a jury will not disregard its sworn duty and be improperly motivated, and will render a decision based on the evidence and the totality of the instructions provided by the judge. Id. ; Adams v. Rhodia, Inc. , 2007-2110 (La. 05/21/08), 983 So.2d 798, 804.

Ultimately, the determinative question is whether the jury instructions, or lack thereof, misled the jury to the extent that it was prevented from dispensing justice. Jeff Mercer, supra. The standard of review in determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case. Id.

Goldsby contends that defense counsel incorrectly referenced a settlement with the party involved in the second collision. This alleged incorrect mention of a settlement was made in front of the jury during opening statements, as evidenced by the record:

Defense Counsel: Also, a claim was made as a result of the second accident. And it was resolved, and the bills of Dr. Russo and the bills to date of Dr. Vogel were included and settled in that claim.
Plaintiff Counsel: Objection, Your Honor. That's totally out of balance. May we approach ... (bench conference occurs).

Once the jury was removed, this objection was argued. Counsel for Goldsby requested a curative instruction, asserting that La. C.E. art. 413 bars mention of outside settlements, and the Code of Evidence bars admissibility of irrelevant evidence which may prejudice the jury. The trial court determined that the decision on whether a curative instruction was necessary would be better made after the matter was potentially resolved by examination of witnesses.

On direct examination, Goldsby related that she paid the medical bills for Dr. Vogel out-of-pocket using money from a settlement with Sallie Mae concerning student loans. Goldsby explained that she received a check from that settlement on June 12, 2015, and used the money to pay her medical expenses related to her back injuries. The release of claims form from Sallie Mae was entered into evidence as plaintiff Exhibit 17. Goldsby also testified that she had not received a settlement from any insurance company in connection with the April 2014 collision.

The allegedly objectionable statement was potentially subject to corrective measures. The trial court sustained Goldsby's objection to the statement. Further, the court admonished the jury, at the start of the trial and when all parties had rested, that the statements of counsel were not evidence, but that opening statements are opinions about what counsel intends to prove and should not interfere with its determination of the facts. At the conclusion of the trial, because the parties could not agree on what type of instruction to give concerning the alleged misstatement by counsel during opening statements, none was given, and the trial court determined it was best not to give any more weight than necessary to the misstatement by belaboring this issue.

Louisiana C.C.P. 1792 requires the court to instruct the jury on matters of law, and give instructions to reduce any confusion on the applicable law. It leaves to the court's discretion whether to use instructions submitted by either party to clarify confusion as to facts; therefore, de novo review is not appropriate here as requested. As the reviewing court, we must exercise great restraint before disregarding a jury verdict and conducting a de novo review of the record. The jury instructions given by the trial court adequately provided the correct principles of law. Goldsby's mere allegation that the failure to issue a curative instruction caused prejudice and led to an abusively low damages award does not automatically trigger a de novo review of this record.

We find that the trial court did not err in refusing to specifically instruct the jury with regard to the mention of a settlement during opening statements. A careful review of the record demonstrates that throughout the trial, both parties commented on the fact that Goldsby received "a settlement." Both parties had adequate opportunity to question Goldsby about the settlement, and during Goldsby's testimony it was made quite clear that the only settlement she received was from Sallie Mae regarding student loan payments, and not in connection with any automobile collisions. Thus, the trial court had no obligation to give the jury the specifically requested instruction, because the issue was clarified throughout the trial. We find no error in the trial court's decision not to provide an instruction on this issue. This assignment lacks merit.

Motion for JNOV, Additur, or New Trial

Goldsby's fourth assignment of error concerns the denial of her post-trial motions for judgment notwithstanding the verdict ("JNOV"), additur, and new trial. This argument incorporates the arguments made previously by Goldsby concerning the jury's verdict. Considering we find the jury did not abuse its discretion in allocating fault or awarding damages, we likewise find the trial court did not abuse its discretion in denying these motions.

A motion for JNOV may be granted on the issues of liability, on the issue of damages, or on both issues. La. C.C.P. art. 1811. A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes reasonable persons could not arrive at a contrary verdict. Anderson v. New Orleans Pub. Serv., Inc. , 583 So.2d 829 (La. 1991). Additur becomes proper only when, inter alia , a jury awards an amount that is lower than the lowest permissible, reasonable amount. Lennard v. State Farm Mut. Auto. Ins. Co. , 26,396 (La. App. 2 Cir. 01/25/95), 649 So.2d 1114, 1119.

A new trial is mandated only upon a showing of jury misconduct which is of such a grievous nature as to preclude the impartial administration of justice. Williams v. Super Trucks, Inc. , 36,993 (La. App. 2 Cir. 04/09/03), 842 So.2d 1210, 1220-21, writ denied , 2003-1303 (La. 09/05/03), 852 So.2d 1042. Otherwise, the granting of a new trial is left to the sound discretion of the trial court. Id. A decision to deny a motion for new trial based upon jury misconduct is reviewed pursuant to an abuse of discretion standard. Wright v. Hirsch , 560 So.2d 835 (La. 1990) ; Williams , supra . When reviewing the denial of a motion for new trial, unless an abuse of discretion can be exhibited, the trial court's decision will not be reversed. Id.

In this case, as already discussed, the verdict reached by the jury was reasonable based on the evidence presented at trial. The evidence did not point so strongly in favor of Goldsby that a reasonable jury could not reach a different conclusion. The trial court did not abuse its discretion in determining that neither additur nor granting a new trial was proper in this instance. Thus, the trial court did not err in its denial of Goldsby's post-trial motions, and this assignment has no merit.

CONCLUSION

For these reasons, the jury verdict and judgment of the trial court are affirmed. Costs of this appeal are cast to appellant, Terany Goldsby.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, C.J. GARRETT, J., concurring.

license: Public Domain

text:
    Milton C. TATES & Brigida Tates, Individually & as Husband and Wife, Plaintiffs-Appellees v. INTEGRATED PRODUCTION SERVICES, INC., Superior Energy Services, Shelby Holland, & Liberty Insurance Company, Defendants-Appellants
    No. 51,574-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017. Rehearing Denied January 4, 2018
    COOK, YANCEY, KING, and GALLOWAY By: Brian A. Homza, Shreveport, Counsel for Appellants
    ALL AMERICAN LAW FIRM OF LA, LLC By: Wade T. Visconte, Shreveport, Counsel for Appellees
    Before BROWN, PITMAN, and GARRETT, JJ.
   BROWN, C.J.

On November 5, 2014, plaintiff, Milton Tates, was involved in a car accident that forms the basis of this lawsuit. Earlier, in January 2014, plaintiffs, Milton and Brigida Tates, filed a petition for Chapter 13 bankruptcy with the United States Bankruptcy Court for the Western District of Louisiana. Plaintiffs entered into a plan for repayment, which was confirmed by the bankruptcy court in May 2014. Thereafter, the automobile accident occurred, and plaintiffs filed this personal injury lawsuit in state court. Plaintiffs failed to disclose their personal injury claim to the bankruptcy court. In April 2016, defendants in the tort lawsuit filed a motion for summary judgment based on the affirmative defense of judicial estoppel. Plaintiffs quickly amended the bankruptcy plan to include the personal injury claim as an asset, and the amendment was confirmed by the bankruptcy court. The trial court denied defendants' motion for summary judgment and granted partial summary judgment in favor of plaintiffs. For the following reasons, we affirm.

FACTS

On January 31, 2014, plaintiffs, husband and wife, Milton and Brigida Tates, filed a petition for Chapter 13 bankruptcy. Milton and Brigida entered into a Chapter 13 plan of repayment with the bankruptcy court on February 6-7, 2014. The plan listed all of the Tates' assets and liabilities and provided that they were to begin making payments as required by the plan. The Tates amended the Chapter 13 plan on April 23, 2014, and the plan was confirmed by the bankruptcy court on May 29, 2014.

Plaintiffs alleged that on November 5, 2014, Milton was driving his truck in Shreveport, Louisiana, and defendant, Shelby Holland, drove his truck into Milton's path in an attempt to make a left-hand turn. Milton struck Holland's truck, which caused injuries to Milton and damage to his truck.

Milton and Brigida filed a petition for damages in the First Judicial District Court in Shreveport, Louisiana, on October 28, 2015, alleging negligence on the part of Holland. The Tates also named as defendants: (1) Integrated Production Services, Inc. ("IPS"); (2) Superior Energy Services ("SES"); and (3) Liberty Insurance Corporation ("Liberty"). Milton sought general and special damages related to his injuries and the property damage sustained to his truck. Brigida sought damages for loss of consortium.

Defendants, IPS, SES, and Liberty, fax-filed exceptions, affirmative defenses and an answer on November 30, 2015, and filed the originals on December 3, 2015. On April 15, 2016, defendants fax-filed a motion for summary judgment, claiming that plaintiffs had not disclosed their negligence claim against defendants to the bankruptcy court. Defendants claimed that plaintiffs' failure to disclose the negligence claim was not inadvertent and that plaintiffs concealed the claim in order to prevent any potential award going to the bankruptcy estate. Defendants asserted that judicial estoppel barred further pursuit of the negligence claim. Defendants included as exhibits to their motion the Tates' bankruptcy petition, Chapter 13 plan for repayment, amended plan, and confirmation of the plan by the bankruptcy court.

On June 3, 2016, plaintiffs filed a motion for summary judgment and opposition to defendants' motion for summary judgment. Plaintiffs opposed defendants' motion, urging that the evidence established that plaintiffs had no intent to conceal the state court proceedings from the bankruptcy court, and the facts showed that there was no danger to the integrity of the judicial process in the case of the Tates' bankruptcy because plaintiffs and undersigned counsel intended to seek bankruptcy court approval prior to disbursement of any settlement or judgment in the case.

Included as exhibits with plaintiffs' motion for summary judgment were affidavits from Milton, the Tates' attorney in the tort action, and the Tates' bankruptcy attorney. In his affidavit, Milton alleged that he had filed for bankruptcy protection, and that he had made and would continue to make all of his payments under the confirmed Chapter 13 plan. Milton stated that he had no intent to engage in deceptive conduct and had amended his Chapter 13 plan to include the tort claim as an asset. Milton attached an amended schedule to his affidavit showing that the plan had been amended on April 18, 2016, to include the tort claim as an asset.

In his affidavit, the Tates' attorney in the personal injury case, Wade T. Visconte, alleged that he did not have a motive to conceal any recovery in the Tates' negligence case from the bankruptcy court. Visconte stated that his practice had been to seek approval of the bankruptcy court after a settlement or judgment was reached in a tort claim. Visconte alleged that the Tates contacted their bankruptcy attorney, Kelli Cook, in December of 2014 to inform her of their tort claim. Visconte stated that he usually follows up with the bankruptcy attorneys in these situations, but in the Tates' case he forgot to do so.

Attached to Visconte's affidavit was an application/motion to employ special purpose seeking approval from the U.S. Bankruptcy Court for the Western District of Louisiana to allow him to represent the Tates in their tort suit. Visconte attached an affidavit of disinterestedness to his application, as well as notice of a hearing to enroll as special counsel to prosecute the Tates' pending tort claim, which was set to occur on June 29, 2016. Attorney Cook's affidavit confirmed what Milton and Visconte averred in their own affidavits. All three affidavits stated that the Tates' bankruptcy case was still pending in the bankruptcy court and had not been discharged.

Plaintiffs later filed a supplemental motion in opposition, in which they asserted that Visconte had been approved as special counsel by the bankruptcy court in the Tates' bankruptcy case, the Tates' creditors had received notice of Visconte's application approval, and Visconte's approval had not been opposed by any of the Tates' creditors. Plaintiffs stated that at least one-half of any recovery from their tort suit would go to the creditors of the bankruptcy estate after attorney fees were deducted. Therefore, plaintiffs argued, any dismissal of the suit on summary judgment would prejudice the bankruptcy estate and creditors and only benefit defendants.

Attached to plaintiffs' supplemental motion was an affidavit from Visconte alleging his approval as special counsel and an order approving Visconte as special counsel signed by bankruptcy judge Jeffrey Norman. Defendants filed additional motions in opposition, reasserting that judicial estoppel was grounds for dismissing the claim. The trial court held a hearing on September 19, 2016, on the various motions. The trial judge signed an order on October 17, 2016, granting plaintiffs' motion for summary judgment and denying defendants' motion for summary judgment on the issue of estoppel.

DISCUSSION

Defendants argue that the trial court erred in denying their motion for summary judgment based on the doctrine of judicial estoppel. Defendants claim that the three steps required in order for a court to assert judicial estoppel are present in this case and should bar plaintiffs from bringing their tort claim.

Plaintiffs argue that judicial estoppel is inappropriate in this case because the law is unclear as to when bankruptcy debtors are required to disclose potential assets to the bankruptcy court after a bankruptcy plan has been confirmed by the court. Plaintiffs further assert that judicial estoppel is meant to protect the integrity of the judicial process, and in this case the judicial process has not been harmed because plaintiffs disclosed their tort suit to the bankruptcy court, and the court accepted the disclosure as an amendment to the Tates' bankruptcy plan. Plaintiffs also state that dismissing their tort suit will make it less likely that they will be able to meet their financial obligations under their bankruptcy suit, potentially harming their creditors.

The common law doctrine of judicial estoppel provides that a party who has assumed one position in his pleadings may be estopped from adopting a conflicting position. The doctrine is designed to protect the integrity of the judicial process and prevent dishonest parties from "playing fast and loose with the courts to suit the exigencies of self-interest." Thomas v. Economy Premier Assurance Co. , 50,638 (La. App. 2 Cir. 5/18/16), 196 So.3d 7, 11, writs denied , 16-1169, 161177 (La. 10/28/16), 208 So.3d 377, 378.

When judicial estoppel is raised in the context of a bankruptcy case, federal law applies. Id. The U.S. Fifth Circuit Court of Appeals has recognized three requirements for applying the doctrine of judicial estoppel: (1) the party's position must be clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the nondisclosure of an asset must not have been inadvertent. Allen v. C & H Distributors, L.L.C. , 813 F.3d 566 (5th Cir. 2015). Federal courts review judicial estoppel determinations for abuse of discretion. Thomas , 196 So.3d at 12. Judicial estoppel is an equitable doctrine and, therefore, courts may employ it flexibly to realize substantial justice. Id.

The first step in applying the doctrine of judicial estoppel is to show that a party has taken a position inconsistent with a prior legal position. The U.S. Fifth Circuit has stated that Chapter 13 debtors have a continuing duty to disclose post-petition causes of action to the bankruptcy court. In re Flugence , 738 F.3d 126 (5th Cir. 2013). With bankruptcy cases, this inconsistent position requirement is generally met when a debtor does not disclose an asset to the bankruptcy court, but then pursues a claim in a separate tribunal based on the undisclosed asset. Thomas, supra.

The Tates had a continuing duty to disclose their post-petition tort claim to the bankruptcy court and failed to do so from when the claim arose on November 5, 2014, the date of the accident, until April 18, 2016, the date they amended their bankruptcy plan to include the tort suit as an asset. At the time plaintiffs filed their tort suit in state court, they were representing to the bankruptcy court that they did not have claims against defendants, while representing to the state court that they did. See In re Flugence , supra ; In re Coastal Plains, Inc. , 179 F.3d 197 (5th Cir. 1999). However, plaintiffs provided proof that they amended their schedules with the bankruptcy court on April 18, 2016, to include this tort claim, eliminating that inconsistent position. While that amendment came after defendants filed their motion for summary judgment asserting judicial estoppel on April 15, 2016, the inconsistent position was remedied just three days later.

The second step in applying the doctrine of judicial estoppel requires that the court accept the prior legal position. Defendants cite Flugence to show that the bankruptcy court accepted the Tates' previous position that their bankruptcy estate did not include their tort claims as an asset. However, in Flugence , the plaintiff-debtor amended her bankruptcy plan after she sustained the injuries and did not include her potential claim in that amendment. Id. at 130. In this case, the Tates filed for bankruptcy, amended the bankruptcy plan and had the plan confirmed by the bankruptcy court before Mr. Tates was involved in the car accident giving rise to this suit. Thus, there is no record of the bankruptcy court accepting an inconsistent position.

Defendants also cite Love v. Tyson Foods, Inc. , 677 F.3d 258 (5th Cir. 2012), in support of their claim that the bankruptcy court accepted the Tates' prior position. Yet, in Love , the events giving rise to the plaintiff-debtor's employment discrimination claim occurred before the plaintiff filed for bankruptcy, and he failed to include the claim in his schedule of assets. Id. at 260-61. Again, Milton's accident occurred after plaintiffs' bankruptcy case was filed, amended and confirmed. Plaintiffs provided an amended schedule filed with the bankruptcy court listing the instant suit as an asset, which the bankruptcy court accepted, as well as approving Visconte as the Tates' special counsel for this suit.

The third step in applying the doctrine of judicial estoppel requires that the non-disclosure of the asset must not have been inadvertent. The U.S. Fifth Circuit has stated that a nondisclosure is inadvertent when the party to be estopped was unaware of the facts giving rise to his claim or there was no motive for concealment. Miller v. Conagra, Inc. , 08-0021 (La. 9/8/08), 991 So.2d 445. The Fifth Circuit found in Love , 677 F.3d at 262, that Love had a motive to conceal his claim from the bankruptcy court because of the prospect that he could keep any recovery for himself instead of having it go to his creditors. "Motivation in this context is self-evident because of the potential benefit resulting from the nondisclosure." Id.

In this case, plaintiffs also could have had a motive because of the potential benefit resulting from nondisclosure. In his affidavit, however, the Tates' personal injury attorney stated that he had no motive to conceal, and his practice was to seek bankruptcy approval after a settlement or judgment was reached.

In addition to the three requirements that must be met in order for a court to invoke judicial estoppel, the U.S. Supreme Court has "caution[ed] against reducing judicial estoppel to a general formulation or principle, as well as the Court's recognition that specific factual contexts may give rise to additional considerations." Miller , 991 So.2d 445, 453, citing New Hampshire v. Maine , 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed. 2d 968 (2001). Judicial estoppel is an equitable principle invoked by the courts to protect the judicial process, not to provide a windfall to defendants who evade prosecution of what could be valid claims. Id.

In this case, protection of the judicial process is not necessary because the bankruptcy court has been informed of plaintiffs' pending tort suit. See Miller, supra. Additionally, plaintiffs' creditors could be harmed if this suit does not proceed, which would cause them to lose out on any potential recovery that might be owed to them. Id. Plaintiffs' bankruptcy suit at the time of appeal was still pending. Therefore, any recovery plaintiffs make will first be reduced by their attorney's fee and 50% of what is remaining will be used to satisfy their plaintiff's creditors. Plaintiffs should not be judicially estopped from bringing their tort claim.

CONCLUSION

For the reasons set forth above, the trial court's judgment is affirmed. Costs are assessed against defendants, Integrated Production Services, Inc., Superior Energy Services, Shelby Holland, and Liberty Insurance Company.

AFFIRMED.

GARRETT, J., concurs with written reasons.

GARRETT, J., concurring.

I concur in the result. The delay in reporting the claim to the bankruptcy court is clearly in no way attributable to the plaintiffs, as shown by the affidavits from both of their attorneys. I find no abuse of discretion on the part of the lower court in determining that judicial estoppel was not appropriate under all the facts and circumstances presented here.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, MOORE, STONEm AND BLEICH, JJ.

Rehearing denied.

BROWN, J., would grant rehearing

BLEICH, J., would grant rehearing.

      For purposes of this appeal, "defendants" refers to IPS, SES and Liberty.

      Plaintiffs also filed a motion to strike defendants' motion for summary judgment for not including judicial estoppel as an affirmative defense in their answer filed December 3, 2015. Defendants sought and were granted leave by the court to file an amended and supplemental answer including judicial estoppel as an affirmative defense, thereby mooting plaintiffs' motion to strike.

      Plaintiffs' bankruptcy plan states in part III(C) of MISCELLANEOUS AND OTHER PROVISIONS
      (6) RESERVATION AND RETENTION OF PRE & POST-PETITION CLAIMS Confirmation of this plan shall constitute a finding that the debtor does not waive, release or discharge but rather retains and reserves for himself and the bankruptcy estate any and all pre-petition claims and any and all post-petition claims that debtor could or might assert against any party or entity arising under or otherwise related to any state or federal statute....
      To the extent a claim or counter claim is known by the debtor, the debtor is aware of the duty to list such claims or counter claims in the schedules and statements filed with this bankruptcy. The debtor has been made aware of the duty to disclose any such claims or counter claims should they become known to the debtor after the original schedules and statements have been filed or they arise after such date and if they may be property of the bankruptcy estate.


author: STONE, J.

text:
    Thomas BRADLEY, Plaintiff-Appellee v. ST. FRANCIS MEDICAL CENTER, Defendant-Appellant
    No. 51,572-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017. Rehearing Denied November 9, 2017
    PHILLIP EDWARD FOCO, SCOTT PATRICK LEDET, Baton Rouge, Counsel for Appellant
    CARLTON LASHAYNE PARHMS, Monroe, Counsel for Appellee
    Before DREW, STONE, and COX, JJ.
   STONE, J.

St. Francis Medical Center appeals the judgment of the workers' compensation judge which ordered the reinstatement of Thomas Bradley's temporary total disability benefits and the payment of Bradley's neck surgery upon his completion of a favorable psychological evaluation. For the following reasons, we affirm in part, as amended, and reverse in part.

FACTS AND PROCEDURAL HISTORY

On December 10, 2014, Thomas Bradley ("Bradley") was employed by St. Francis Medical Center ("Defendant") as a delivery truck driver. Bradley was unloading laundry during a delivery to another facility when a "heavy" laundry bin tilted over onto him. In an effort to stop the laundry bin from knocking him to the ground, Bradley injured his neck, back, and shoulders.

After the accident, Bradley reported to Defendant's occupational medicine department, where he was evaluated by physician assistant, Roger Wilson ("Wilson"). Bradley complained of back, shoulder, and neck pain. Wilson diagnosed Bradley with lumbago, cervicalgia, and shoulder pain. He recommended medication and placed Bradley on the following work restrictions: 1) no lifting over 15 pounds; 2) no bending or stooping; and, 3) no pushing or pulling greater than 15 pounds. One week later at a follow-up appointment, Bradley reported continued back, shoulder, and neck pain. Thereafter, Bradley began physical therapy.

On January 5, 2015, Bradley visited Dr. Douglas Brown ("Dr. Brown"), an orthopedic surgeon, for his continued back, shoulder, and neck pain. This was not the first time Bradley had visited Dr. Brown complaining of neck and back pain. On October 21, 2014, Bradley visited Dr. Brown for neck and lower back pain. During the visit, Bradley also complained of pain and weakness in both arms and wrists. On October 29, 2014, Dr. Brown performed a cervical MRI evaluation, which indicated disc degeneration at C4/C5, C5/C6, and C6/C7, with moderate central stenosis at C5/C6. Among other things, Dr. Brown concluded Bradley suffered from degenerative cervical disc disease.

At the January 5, 2015 visit, Bradley stated the December 10, 2014 work accident had worsened his prior neck and back issues. Bradley was examined by Dr. Brown's physician assistant, Stephanie Spangler. She noted Bradley had: 1) continued cervical pain with radiculopathy into his bilateral shoulders; 2) arm weakness and numbness in both hands; 3) lower back pain with radiculopathy into both buttocks and posterior legs to his knees; and 4) bilateral foot numbness. Notably, Bradley did not experience radiculopathy at his October 21, 2014 visit. Dr. Brown affirmed his prior diagnosis of degenerative cervical disc disease. Since Bradley was already being treated by Defendant's occupational medicine department, Dr. Brown recommended Bradley continue the department's treatment plan, including physical therapy, prescribed medications, and work restrictions.

Disappointed with his progress from the treatment plan, Bradley requested an evaluation by a neurosurgeon of his choice on March 18, 2015. Defendant approved Bradley to see Dr. Bernie McHugh ("Dr. McHugh"), a neurosurgeon referred by Dr. Brown to Bradley. On May 7, 2015, Bradley was examined by Dr. McHugh. Bradley claimed the physical therapy had "worsened both his cervical and [lower] back pain and has caused the numbness and tingling in [his] left hand which was not there prior." Bradley stated his new position with Defendant as a security guard required him to sit for long periods of time, which increased his cervical and lower back pain. Dr. McHugh reported a "jerking-type movement" of both Bradley's upper and lower extremities. Dr. McHugh recommended a repeat MRI evaluation of Bradley's cervical spine and advised him to cease physical therapy until the repeat MRI was reviewed.

After approval from Defendant, the repeat MRI was performed on June 12, 2015. On July 15, 2015, Dr. McHugh noted his comparative analysis of Bradley's October 2014 and June 2015 MRI films. Dr. McHugh stated Bradley's June 2015 MRI film showed a progression of the degeneration from his October 2014 MRI film. Bradley's October 2014 MRI film demonstrated "degenerative change mild at the C4/C5 and C6/C7 with moderate change and moderate stenosis at C5/C6." However, his June 2015 MRI film indicated a "large disc herniation at the C5/C6 with moderate to severe stenosis with milder herniations at the C4/C5 and C6/C7." Based on his findings, Dr. McHugh recommended Bradley undergo C4/C5, C5/C6, and C6/C7 anterior cervical discectomy and fusion ("ACDF surgery"). Dr. McHugh also stated Bradley should not return to work until the progression of his condition was sufficiently addressed.

Thereafter, Defendant initiated weekly temporary total disability benefits ("TTD benefits") to Bradley in the amount of $337.98 a week. Notwithstanding, Defendant began investigating whether Bradley's condition was related to the December 10, 2014 work accident. During the course of its investigation, Defendant learned Bradley received treatment for cervical and lumbar disc issues prior to the work accident. Defendant consulted Dr. Curtis Partington ("Dr. Partington"), a board-certified diagnostic radiologist, and asked him to provide a comparative analysis of Bradley's two MRI films. On August 18, 2015, Dr. Partington issued a report on his findings.

Dr. Partington found there were disc herniations present at C4/C5, C5/C6, and C6/C7 on both the October 2014 and June 2015 MRI films. Dr. Partington measured the herniations using an electronic measuring tool. Dr. Partington determined C4/C5 and C6/C7 remained relatively the same size; however, C5/C6 measured 4 millimeters on the October 2014 MRI film, but only 3 millimeters on the June 2015 MRI film. Thus, the size of C5/C6 had decreased by 25%. Dr. Partington also found some disc bulging and osteophyte at T1/T2 and T2/T3, which had the appearance of a chronic condition. Overall, Dr. Partington doubted the changes on the June 2015 MRI film were related to Bradley's work accident.

On August 19, 2015, Dr. McHugh sent Defendant a LWC-WC-1010 form requesting authorization for Bradley's ACDF surgery. Defendant denied the request pending a psychological evaluation pursuant to the Louisiana Workers' Compensation Medical Treatment Guidelines. On October 20, 2015, Dr. Darren Strother ("Dr. Strother") conducted Bradley's psychological evaluation. Bradley had prior mental health issues, including diagnoses of alcoholism and psychotic disorder NOS (Not Otherwise Specified). In a report dated December 10, 2015, Dr. Strother stated he "would not recommend surgery until [Bradley] is re-established with a psychiatrist, particularly in light of his relatively recent discontinuance of antipsychotic medication and his history of hallucinations."

On November 5, 2015, Bradley was evaluated by Dr. Donald Smith ("Dr. Smith"), a board-certified neurosurgeon. Defendant wanted a second medical opinion on the causal relationship between Bradley's disabling condition and the work accident. In his report, Dr. Smith opined that the degenerative changes present on the October 2014 and June 2015 MRI films were "chronic and longstanding in nature and not the type [of] changes that would ordinarily be expected as the result of an acute single episode of trauma." He found "no neurological or other musculoskeletal abnormalities or deficits." Dr. Smith stated Bradley did not need further medical or surgical treatment and could continue his regular work activities with no restrictions.

On December 4, 2015, Defendant issued a LWC-WC-1002 form ("1002 Form") terminating Bradley's TTD benefits, effective December 20, 2015. Defendant cited "causation" as the reason for termination. On December 11, 2015, Bradley filed a LWC-WC-1008 form ("1008 Form") with the Office of Workers' Compensation ("OWC"), challenging the termination of his benefits. He also requested Defendant be assessed penalties and attorney fees. The 1008 Form made no reference to the denial of Bradley's ACDF surgery. Defendant answered the 1008 Form asserting Bradley's benefits were terminated "based on the lack of a causal connection between the injuries and/or symptoms for which [Bradley] is seeking benefits and the December 10, 2014 accident."

A trial on the matter was held on June 30, 2016. The workers' compensation judge ("WCJ") was presented with testimony from Bradley, Wilson, and Penny Whitehead ("Whitehead"), Defendant's workers' compensation coordinator. Numerous medical records, depositions, and claims documents were admitted into evidence. On September 26, 2016, in its oral reasons for judgment, the WCJ found Bradley suffers from a work-related injury and is entitled to the reinstatement of his TTD benefits, effective December 21, 2015. The WCJ stated the benefits are to continue until Dr. McHugh releases Bradley to work. Additionally, the WCJ found Bradley is entitled to ACDF surgery, after completing "a regimen of psychological evaluations and treatment as recommended by [Dr. Strother]." A final judgment on the matter was signed on October 27, 2016. This appeal followed.

DISCUSSION

Burden of Proof

Defendant argues the evidence presented at trial failed to establish Bradley's disabling condition was caused by the December 10, 2014 work accident. Defendant asserts the evidence presented at trial demonstrates Bradley's disabling condition was caused by degenerative disc conditions that manifested prior to the accident. In support of this assertion, Defendant points to the testimony and documentary evidence provided by Drs. Brown, Partington, and Smith. Since Bradley's disabling condition was not caused by the work accident, Defendant contends the WCJ erred in reinstating Bradley's TTD benefits and ordering it to pay for Bradley's ACDF surgery.

To obtain an award of TTD benefits, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(1)(c) ; Henderson v. Graphic Packaging Int'l, Inc. , 48,491 (La. App. 2 Cir. 11/20/13), 128 So.3d 599, 605 ; Buxton v. Iowa Police Dep't , 2009-0520 (La. 10/20/09), 23 So.3d 275, 288 ; City of Shreveport v. Casciola, 43,132 (La. App. 2 Cir. 03/26/08), 980 So.2d 203, 209. The claimant in a workers' compensation case has the burden of establishing his disability and its causal relation with the work-related accident by a preponderance of the evidence. Walton v. Normandy Village Homes Ass'n., Inc. , 475 So.2d 320 (La. 1985) ; Modicue v. Graphic Packaging , 44,049 (La. App. 2 Cir. 02/25/09), 4 So.3d 968, 971. The burden is met when the evidence, taken as a whole, shows that it is more probable than not that the work-related accident somehow caused or contributed to the disability; but, it is not necessary that the exact cause be found. Modicue, supra.

A preexisting medical condition will not bar an employee from recovery if the employee establishes that the work-related accident aggravated, accelerated, or combined with the condition to cause the disability for which compensation is claimed. Peveto v. WHC Contractors , 93-1402 (La. 01/14/94), 630 So.2d 689 ; McCoy v. W.A. Kendall & Co., Inc., 50,187 (La. App. 2 Cir. 11/25/15), 181 So.3d 817, 822 ; Henderson, supra ; Modicue, supra . The preexisting condition is presumed to have been aggravated by the accident if the employee proves (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the activation of the disabling condition. Peveto, supra ; McCoy, supra ; Henderson, supra ; Modicue, supra . Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate, or combine with the preexisting disease or infirmity to produce his disability. Peveto, supra ; McCoy, supra ; Henderson, supra.

The opinion of the treating physician should be accorded greater weight than that of a physician who sees the patient only once or twice. Henderson, supra ; McCoy, supra . However, the treating physician's testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Id.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Buxton, supra ; Casciola, supra. Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Buxton, supra ; Casciola, supra. To reverse a factfinder's determination under this standard of review, an appellate court is obliged to satisfy the following two-step process based on the record as a whole: 1) there must be no reasonable factual basis for the trial court's conclusion; and 2) the finding must be clearly wrong. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC , 2014-2592 (La. 12/08/15), 193 So.3d 1110, 1116 ; Henderson, supra .

Under manifest error review, the issue to be resolved is not whether the factfinder was right or wrong, but whether the factfinder's conclusion was a reasonable one. Hayes, supra ; Henderson, supra . After a complete review of the record, we find a factual basis for the WCJ to conclude the work accident contributed to Bradley's disabling condition. Bradley testified that the laundry bin involved in the work accident weighed approximately 1,000 pounds, and that his neck and back pain significantly intensified after the accident. The WCJ found Bradley credible and his testimony very persuasive.

There was conflicting medical testimony as to whether the work accident contributed to the progression of Bradley's cervical disc degeneration. Dr. Brown was the only physician to treat Bradley before and after the work accident. The October 2014 MRI performed by Dr. Brown indicated Bradley's pre-accident neck and back pain was caused by degenerative cervical and lumbar disc disease. Less than a month after the work accident, Bradley was evaluated by Dr. Brown's physician assistant, and Bradley complained his symptoms had intensified since the work accident. He was experiencing radiculopathy that was not present prior to the work accident. Dr. Brown referred Bradley to Dr. McHugh and testified he would concur with Dr. McHugh's findings.

In a comparative analysis of Bradley's MRI films, Dr. McHugh found significant degenerative changes at C4/C5, C5/C6, and C6/C7, including a large disc herniation at C5/C6. Dr. McHugh reported Bradley's neck and back pain had worsened since the work accident. Dr. McHugh recommended Bradley undergo ACDF surgery. He stated Bradley should not return to work until his disabling condition was sufficiently addressed. Drs. Partington and Smith found degenerative changes between the October 2014 and June 2015 MRI films, but they concluded the changes were the result of a chronic degenerative condition and not the work accident. Furthermore, Dr. Smith opined ACDF surgery was unnecessary and Bradley could return to work with no restrictions.

Ultimately, the WCJ relied on the medical testimony of Bradley's treating physicians, Drs. Brown and McHugh, as opposed to Drs. Partington and Smith. Henderson, supra ; McCoy, supra . Drs. Brown and McHugh treated Bradley on multiple occasions. Dr. Partington did not examine Bradley, and Dr. Smith examined Bradley only once. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Hayes, supra ; Henderson, supra. As such, we cannot find manifest error in the WCJ's conclusion.

Approval of ACDF Surgery by Medical Director

Notwithstanding the issue of causation, Defendant argues the WCJ erred by ordering the approval of Bradley's ACDF surgery pending a favorable psychological evaluation because the issue of Bradley's entitlement to ACDF surgery was prematurely before the WCJ. Defendant states Bradley circumvented the administrative procedures required by La. R.S. 23:1203.1 ("Article 1203.1"), including obtaining a determination from the OWC Medical Director ("the medical director") as to whether ACDF surgery is reasonable and necessary.

Defendant raised the issue of prematurity for the first time at the conclusion of trial. Defendant pointed out Bradley disputed only the termination of his TTD benefits and not the denial of his ACDF surgery in his 1008 Form. Defendant contends grounds to raise the issue of prematurity did not exist until Bradley's entitlement to ACDF surgery was discussed at trial. The WCJ issued its oral reasons for judgment and final judgment without addressing the issue of prematurity. Silence in a judgment as to any issue, claim, or demand placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. M.J. Farms, Ltd. v. Exxon Mobil Corp. , 2007-2371 (La. 07/01/08), 998 So.2d 16, 26 ; L.J.D. v. M.V.S. , 2016-0008 (La. App. 1 Cir. 01/25/17), 212 So.3d 581, 584. Thus, the WCJ's silence on the issue of prematurity is considered a tacit rejection of the claim.

A workers' compensation claimant may recover costs of medical treatment that is reasonably necessary for the treatment of a medical condition caused by a work injury. La. R.S. 23:1203(A) ; Church Mut. Ins. Co. v. Dardar , 2013-2351 (La. 05/07/14), 145 So.3d 271 ; Thomas v. Marsala Beverage Co. , 50,062 (La. App. 2 Cir. 09/30/15), 179 So.3d 620, 623. Article 1203.1 requires the Director of the OWC to appoint a medical advisory council which, with the assistance of a medical director, is to develop medical treatment guidelines to be promulgated as the medical treatment schedule ("MTS"). Church Mut. Ins. Co., supra ; Dow v. Chalmette Rest., Ltd. , 2015-0336 (La. App. 4 Cir. 05/18/16), 193 So.3d 22, 1228. Thereafter, the medical treatment due by the employer to the employee "shall mean care, services, and treatment in accordance with the [MTS]." La. R.S. 23:1203.1(I) ; Dow, supra at 1229,. Article 1203.1 was enacted with the express intent that, with the establishment and enforcement of the MTS, medical and surgical treatment, hospital care, and other health care provider services shall be delivered in an efficient and timely manner to injured employees. La. R.S. 23:1203.1(L) ; Thomas, supra .

In Dow, supra , the court enumerated the following process for obtaining "medical care, services, or treatment" under Article 1203.1:

(1) the medical provider submits to the employer/insurer a request for authorization; (2) the employer/insurer then must notify the medical provider of their action on the request within five business days of receipt of the request; (3) if any dispute arises as to whether the recommended care, services, or treatment is in accordance with the MTS, or whether a variance from the MTS is reasonably required, any aggrieved party must file, within 15 calendar days, an appeal with the OWC medical director or associate director on Form 1009, Disputed Claim for Medical Treatment; (4) the medical director/associate medical director must render a decision as soon as practicable, but in no event, not more than 30 calendar days from the date of filing; (5) after the decision by the medical director/associate medical director, any party who disagrees with the decision may appeal by filing a Form 1008 Disputed Claim for Compensation[.]

See La. R.S. 23:1203.1(J)(1) and (K).

According to La. R.S. 23:1314(D), "[d]isputes over medical treatment pursuant to the medical treatment schedule shall be premature unless a decision of the medical director has been obtained in accordance with R.S. 23:1203.1(J)."

The denial of Bradley's ACDF surgery was prematurely before the WCJ because Bradley failed to file a LWC-WC-1009 form appealing the denial with the medical director. Considering the MTS was enacted to provide "efficient and timely" medical treatment to injured employees, this court is inclined to affirm the portion of the WCJ's judgment ordering Defendant to approve Bradley's ACDF surgery. Nonetheless, Bradley failed to dispute the denial of his ACDF surgery in his 1008 Form, and the issue of Bradley's entitlement to ACDF surgery was never addressed until trial. Consequently, we reverse the portion of the WCJ's judgment ordering the approval of Bradley's ACDF surgery pending a psychological evaluation. Bradley is not precluded from obtaining approval of his ACDF surgery in the future by following the proper administrative procedures pursuant to Article 1203.1.

Correct Date for Reinstatement of TTD Benefits

In its oral reasons for judgment, the WCJ stated Bradley was entitled to the reinstatement of TTD benefits beginning December 21, 2015. However, in its final judgment, the WCJ ordered the reinstatement of Bradley's TTD benefits beginning December 5, 2015. The record indicates Bradley received TTD benefits through December 20, 2015. Thus, the WCJ committed legal error, and we amend the final judgment to reinstate Bradley's TTD benefits beginning December 21, 2015.

Attorney Fees

Bradley argues the WCJ erred by not assessing penalties and attorney fees for Defendant's failure to sufficiently support the termination of his TTD benefits and the denial of his ACDF surgery.

An employer's failure to provide payment of benefits or authorize medical treatment will result in a penalty and attorney fees "unless the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control." La. R.S. 23:1201(F)(2) ; Authement v. Shappert Eng'g , 2002-1631 (La. 02/25/03), 840 So.2d 1181 ; Friedman v. Ecolab, Inc. , 50,358 (La. App. 2 Cir. 02/03/16), 187 So.3d 491, 498 ; Arrant v. Wayne Acree PLS, Inc. , 51,238 (La. App. 2 Cir. 05/02/17), 218 So.3d 737, 740. In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Brown v. Texas-LA Cartage, Inc., 98-1063 (La. 12/01/98), 721 So.2d 885, 890 ; Arrant, supra ; Koenig v. Christus Schumpert Health Sys. , 44,244 (La. App. 2 Cir. 05/13/09), 12 So.3d 1037, 1045.

The WCJ has great discretion in determining whether to allow or disallow penalties and attorney fees, and his or her decision will not be disturbed absent manifest error. Alexander v. Pellerin Marble & Granite , 93-1698 (La. 01/14/94), 630 So.2d 706 ; Friedman, supra ; Arrant, supra .

The WCJ denied Bradley's request for an award of penalties and attorney fees because it found Defendant had a reasonable basis for denying the benefits. Considering evidence of Bradley's preexisting degenerative disc disease and the medical testimony provided by Drs. Partington and Smith, we find no manifest error in the WCJ concluding penalties and attorney fees were not warranted.

Additionally, Bradley requests attorney fees for work done on appeal. Generally, a workers' compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending the employer's unsuccessful appeal. Frith v. Riverwood, Inc. , 2004-1086 (La. 01/19/05), 892 So.2d 7 ; Arrant, supra . However, considering Defendant was partially successful on appeal and the WCJ's finding that attorney fees were not warranted at the trial level, we decline to award attorney fees for work done on appeal. See Robinson v. Calcasieu Par. Sch. Bd. , 2011-615 (La. App. 3 Cir. 11/02/11), 77 So.3d 1059, 1064, writ denied , 2011-2641 (La. 02/10/12), 80 So.3d 478.

CONCLUSION

For the foregoing reasons, the WCJ's judgment is affirmed as to the reinstatement of Bradley's TTD benefits and the denial of Bradley's request for penalties and attorney fees. The judgment is amended to reinstate the TTD benefits beginning December 21, 2015. The portion of the judgment ordering Defendant to approve Bradley's ACDF surgery is reversed. Costs of this appeal are assessed to Defendant.

AMENDED, AND AS AMENDED, AFFIRMED IN PART; REVERSED IN PART.

APPLICATION FOR REHEARING

Before BROWN, DREW, GARRETT and STONE, JJ.

Rehearing denied.

      Dr. Brown also conducted a lumbar MRI evaluation and diagnosed Bradley with degenerative lumbar disc disease.

      Dr. Smith found mild degenerative changes at the C4/C5, C5/C6, and C6/C7. He found the degenerative changes were "more pronounced" at the C5/C6 with a moderate bulge.

      When Defendant brought up the issue of prematurity, the WCJ noted that an issue of prematurity is normally addressed by filing a dilatory exception of prematurity. See La. C.C.P. art. 926. The exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. Williamson v. Hospital Serv. Dist. No. 1 of Jefferson , 2004-0451 (La. 12/01/04), 888 So.2d 782 ; Haygood v. Dies , 47,765 (La. App. 2 Cir. 05/15/13), 114 So.3d 1206, 1213. La. C.C.P. art. 926(B) provides that "[a]ll objections which may be raised through the dilatory exception are waived unless pleaded therein." La. C.C.P. art. 928 provides that "[t]he dilatory exception shall be pleaded prior to answer or judgment by default." Since Bradley failed to include the denial of his ACDF surgery in his 1008 form, Defendant argued it never received notice to file an exception of prematurity. Notably, in determining the issue of prematurity, workers' compensation judges are not bound by the articles in the Louisiana Code of Civil Procedure requiring the filing of an exception of prematurity prior to or with the filing of the Answer. Dow v. Chalmette Rest., Ltd. , 2015-0336 (La. App. 4 Cir. 05/18/16), 193 So.3d 1222, 1230-31 ; See La. R.S. 23:1317(A) ("The workers' compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided[.]").

      La. R.S. 23:1203.1(J)(1) provides:
      After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers' compensation administration medical director or associate medical director on a form promulgated by the director. The medical director or associate medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.
      La. R.S. 23:1203.1(K) provides:
      After the issuance of the decision by the medical director or associate medical director of the office, any party who disagrees with the decision, may then appeal by filing a "Disputed Claim for Compensation", which is LWC Form 1008. The decision may be overturned when it is shown, by clear and convincing evidence, the decision of the medical director or associate medical director was not in accordance with the provisions of this Section.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Frederick PATTERSON, Appellant
    No. 51,559-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017.
    LOUISIANA APPELLATE PROJECT, By: Paula C. Marx, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, HOLLY Y. McGINNESS, ERICA N. JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, MOORE, and PITMAN, JJ.
   MOORE, J.

The defendant, Frederick Patterson, pled guilty as charged to one count of aggravated second degree battery, in violation of La. R.S. 14:34.7. The trial court sentenced Patterson to 15 years at hard labor, the entire sentence to be served consecutively to any sentence he may be required to serve in Tennessee. A motion to reconsider sentence was filed and denied by the trial court. Patterson filed this appeal alleging that the trial court failed to sentence him in accordance with his plea agreement and that the maximum consecutive sentence imposed constitutes cruel and unusual punishment. For the following reasons, we affirm Patterson's conviction, but vacate his sentence and remand to the trial court for resentencing in accordance with the plea agreement.

FACTS

On September 18, 2012, Patterson was charged with the aggravated second degree battery of his estranged girlfriend, Jacqueline Evans. The bill of information alleged that Patterson intentionally attacked Evans with a knife, injuring her on August 18, 2012. That same day, Patterson waived formal arraignment and pled not guilty.

Due to several continuances, a preliminary exam was not held until May 24, 2016. Patterson pled guilty as charged on September 19, 2016 as a result of reaching a plea agreement. The terms of the agreement were discussed in open court:

MR. ENRIGHT: He's going to enter a plea of guilty. Is that correct?
THE DEFENDANT: Yes, sir. Your Honor.
MS. MCGINNESS: And, Your Honor, for the record, that would be in Docket No. 308,856 to the charge of aggravated second degree battery. The state would dismiss Docket No. 309,532, the aggravated assault, and the sentence would be up to the Court. The state would agree not to file a multi bill. It's my understanding that at defense's request, we're going to bring the matter back for sentencing after the plea...
....
THE COURT: ... Now, before I go any further, let me tell you what the discussions were with the Court about a possible, and I'd even say probable, sentence before you came in here and that basically is on this charge, you're looking at 15 years in the penitentiary. I understand-maximum.
I understand that there is a hold on you from the state of Tennessee. I indicated that I would make part of this concurrent and part of this consecutive, but no more than five years consecutive to whatever you're facing in Tennessee. Now, the state, I believe, has no objection to that as such and I believe your attorney would recommend that, but before I start going into all of that-did I accurately state that, counsel?
MS. MCGINNESS: Yes, Your Honor
MR. ENRIGHT: That's our understanding.
THE COURT: All right. Do you want to go ahead with that? Are we going ahead?
THE DEFENDANT: Yes, sir, your honor.

The state provided the following factual basis for the offense during Patterson's guilty plea colloquy:

On or about August 18, 2012, Frederick Patterson committed the offense of aggravated second degree battery in that he did commit battery with a dangerous weapon, that weapon being a knife, upon the person of Jacqueline Evans, in which he did intentionally inflict serious bodily injury, that bodily injury being extreme physical pain and the protracted loss of functioning of her lung. She was stabbed at least three times in the back and did suffer a collapsed lung and these events did occur in Caddo Parish.

Following additional questions by the court to the defendant, the court determined that Patterson's guilty plea was knowingly and intelligently made and that the defendant voluntarily waived his constitutional rights.

On October 11, 2016, Patterson was sentenced to serve 15 years at hard labor, and the trial court ordered that Patterson's entire sentence be served consecutively to his Tennessee sentence. This was, of course, different from what the court told Patterson during its discussion of the terms of the plea agreement. Patterson filed a motion to reconsider his sentence, which was denied.

This appeal followed.

DISCUSSION

In his first assignment of error, Patterson alleges that the court erred in failing to sentence him in accordance with the agreement set out at the time of the guilty plea.

Patterson argues that he entered a plea agreement with the state whereby, in exchange for his guilty plea, the state would drop his pending misdemeanor charge and would not file a habitual offender bill against him. Additionally, the trial court would determine the length of the sentence to be imposed, but not more than five years of that sentence would be served consecutively to the sentence Patterson must serve in Tennessee. The trial court confirmed that no more than 5 years of the sentence it imposed would be served consecutively to whatever time he served in Tennessee. However, since the trial court ordered that Patterson's entire 15-year sentence is to be served consecutively to his Tennessee sentence, the trial court violated the terms of his plea agreement.

The state does not contest this assertion, and it agrees that the trial court failed to sentence Patterson in accordance with the plea agreement discussed during Patterson's guilty plea.

A plea agreement is a contract between the state and a criminal defendant. State v. Young , 50,072 (La. App. 2 Cir. 8/12/15), 174 So.3d 719, appeal after remand , 51,175 (La. App. 2 Cir. 2/15/17), 215 So.3d 906 ; State v. Bouwell , 45,635 (La. App. 2 Cir. 9/22/10), 48 So.3d 335 ; State v. Davis , 41,430 (La. App. 2 Cir. 11/1/06), 942 So.2d 652.

In State v. Young, supra , this court explained the principles governing the validity of plea agreements:

In determining the validity of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant's constitutional right to fairness may be broader than his or her rights under contract law. State v. Givens , 1999-3518 (La. 1/17/01), 776 So.2d 443. The party demanding performance of a contract has the burden of proving its existence. State v. Louis , 94-0761, p. 7 (La. 11/30/94), 645 So.2d 1144 at 1149. In the context of plea bargains, a defendant may demand specific performance of the state's promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right. Id. at 1149-50 ; see also , State v. Tanner , 425 So.2d 760, 763 (La. 1983).
Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art. 1983. A party has an implied obligation to make a good faith effort to fulfill the conditions of a contract. Bloom's Inc. v. Performance Fuels, L.L.C., 44,259 (La. App. 2 Cir. 7/1/09), 16 So.3d 476, writ denied , 2009-2003 (La. 11/20/09), 25 So.3d 800. When there are reciprocal obligations, the obligor of one may not be put in default unless the obligor of the other has performed or is ready to perform his own obligation. La. C.C. art. 1993. Also, a party to a commutative contract may refuse to perform his obligation if the other has failed to perform. La. C.C. art. 2022.

A plea is constitutionally infirm when the defendant is induced to plead guilty by a plea agreement or by what the defendant reasonably believes is a plea agreement and the terms of the agreement are not satisfied. State v. Young, supra ; State v. Bouwell, supra ; State v. Davis, supra ; State v. Beverly , 37,301 (La. App. 2 Cir. 8/20/03), 852 So.2d 1149. When a plea agreement is breached, the defendant has the option of specific performance or to withdraw the guilty plea. State v. Byrnside , 34,948 (La. App. 2 Cir. 8/22/01), 795 So.2d 435.

As previously explained, in exchange for Patterson's guilty plea, the state agreed to dismiss a pending misdemeanor charge in a separate docket number and to not file a habitual offender bill. Prior to taking Patterson's guilty plea, the trial court stated in explaining its discussions with the attorneys, that it intended to make Patterson's sentence partly consecutive and partly concurrent, and it stated that no more than five years of his sentence would be served consecutively with what remains of his (40-year) sentence in Tennessee. Importantly, the trial court then asked, "[d]id I accurately state that, counsel?" Both the prosecutor and defense counsel responded, "[y]es."

Accordingly, the state and Patterson understood the trial court's statement to be part of the plea deal. Therefore, both parties agree that the trial court violated the plea agreement when the court ordered that Patterson's entire 15-year sentence at hard labor run consecutively to the remaining Tennessee sentence he must serve.

We also note that the error is not automatically corrected on appeal because the trial court did not specify how much of the sentence would be consecutive to the Tennessee sentence but simply agreed, at the taking of the guilty plea, that "no more than 5 years" of Patterson's sentence would run consecutively to his (40-year) sentence in Tennessee.

Accordingly, the sentence is vacated and the case remanded to the trial court for resentencing in compliance with the plea agreement. Compare State v. Boehm, 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596, 600, and State v. Rose , 50,861 (La. App. 2 Cir. 9/28/16), 206 So.3d 1102, with State v. Johnson , 50,248 (La. App. 2 Cir. 2/24/16), 188 So.3d 291.

The defendant also complains in his second assignment of error that the maximum consecutive sentence imposed is harsh and excessive to the degree that it is cruel and unusual punishment. Because we vacate the sentence imposed and remand to the trial court with instructions to impose a sentence that complies with the plea agreement, there is no need to consider this assignment.

ERROR PATENT

Our review of the sentencing record reveals that the trial court failed to properly advise Patterson of the time delays for filing an application for post-conviction relief in compliance with La. C. Cr. P. art. 930.8. Rather than inform Patterson that he has two years from the date his conviction became final, the trial court incorrectly stated that Patterson had two years from the date of his sentencing to seek post-conviction relief.

The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language that does not give an enforceable right to an individual defendant.

State v. Williams , 34,936 (La. App. 2 Cir. 9/26/01), 795 So.2d 1221. The failure to advise a defendant of these rights is not grounds to vacate the sentence and remand for resentencing. Id. at 1223 ; State v. Cooper , 31,118 (La. App. 2 Cir. 9/23/98), 718 So.2d 1063, writ denied , 99-0187 (La. 5/14/99), 741 So.2d 663.

Accordingly, we hereby advise the defendant that no application for post-conviction relief, including applications to seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. See State v. Pugh , 40,159 (La. App. 2 Cir. 9/21/05), 911 So.2d 898 ; State v. Williams , 50,852 (La. App. 2 Cir. 9/28/16), 207 So.3d 552.

CONCLUSION

For the foregoing reasons, we affirm the defendant's conviction, vacate the sentence imposed, and remand to the trial court for resentencing in accordance with the plea agreement.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.