author: AMY, Judge.

text:
    STATE of Louisiana v. George D. LOWDINS
    17-157
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Michael C. Cassidy, District Attorney, Bennett R. LaPoint, Assistant District Attorney, Post Office Box 1388, Jennings, LA 70546, (337) 824-1893, COUNSEL FOR APPELLEE: State of Louisiana
    Edward K, Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, LA 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: George D. Lowdins
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
   AMY, Judge.

| following police investigation of a domestic disturbance during which an officer was shot, the State charged the defendant, a prior felon, with attempted first degree murder and unlawful possession of a firearm by a convicted felon. A jury convicted the defendant as charged. The trial court sentenced the defendant to fifty years with the Department of Corrections for the attempted first degree murder charge and twenty years for the firearm charge, with the sentences to run concurrently. The defendant appeals. For the following reasons, we affirm with instructions.

Factual and Procedural Background

On June 23, 2014, Officer Ricky Benoit and Officer' Christopher Aguillard of the Jennings Police Department'arrived at a residence in résponse to a domestic disturbance call. According to Officer Benoit’s testimony,' the officers began speaking with a woman in the residence who was “crying uncontrollably” and “had a mark or ... as bleeding on her face as if she had been hit or struck.” Officer Benoit testifi'ed that he heard a noise and began to move throughout the residence in order to investigate the source, while Officer Aguillard continued to speak with the woman. Officer Benoit, testified that upon seeing movement, he yelled for the source of the movement to come out. Thereafter, Officer Benoit was shot in the neck and shoulder area, receiving disabling injuries. Officer Aguillárd testified that upon hearing the gunshot, he pursued and' successfully detained a;man fleeing the area from which the gunshot noise emanated. He identified the man as George: David Low-dins. Afterward, the defendant, George David Lowdins, was charged with attempted first degree murder, a violation of La. R.S. 14:30(A)(2) and 14:27, as well as unlawful possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1.

After originally pleading not guilty to the charges, the defendant filed a motion on October 16, 2014, to change his plea “from not guilty to guilty by reason of 12insanity.” On October 21, 2014, the trial court ordered the change in the.defendant’s plea “from not guilty to guilty by reason of insanity.” The defendant eventually filed another motion to change his plea, requesting a change “from not guilty to not guilty by reason of insanity.” The trial court, signed the order granting the plea change “from not guilty to not guilty by reason, of insanity.”

The defendant also filed a motion for sanity commission as well as a motion for a psychiatric examination concerning his “competency to stand, trial and his insanity at the time of the offense with which [he] is charged.” The trial court granted the defendant’s motion for sanity commission and appointed Dr. Richard Edwards, III, a Louisiana family practice physician, and Dr. Alfred E. Buxton, PhD, MP, a Louisiana clinical/medical psychologist, to serve on the sanity commission and examine the defendant. After listening to the testimony of the members of the sanity commission, the trial court ruled the defendant competent, finding that he had “the capacity to understand the proceedings against him” as well as “the ability to assist his counsel in his defense[.]”

On December 10, 2015, the defendant filed another motion to change his plea in which he sought “to change his plea from not guilty and [sic] not guilty by reason of insanity.” On December 15, 2015, the trial . court denied the motion, referencing testimony from the sanity commission hearing. Subsequently, the matter advanced to trial, with the defendant maintaining a plea of not guilty.

laDuring voir dire, the defendant challenged certain jurors for cause, and these challenges were denied. Ultimately,' the defendant used all of his peremptory challenges before the end of voir dire. As such, one of the prospective jurors that the defendant challengfed-for cause was seated as a juror:

After trial, the jury returned a verdict of guilty of attempted first degree murder and guilty of unlawful possession of a firearm by a convicted felon. The trial court sentenced the defendant to serve fifty years for the attempted first degree murder conviction, and the trial court sentenced the defendant to serve thirty years without benefit of probation, suspension, or parole for the firearm conviction. The trial court ordered that the sentences run concurrently and that they be served with the Department of Corrections, The defendant orally presented a motion to reconsider the sentences based- on excessiveness. Upon noting an error in the explanation of the statutory maximum sentence on the firearm charge, the trial court amended that sentence tó twenty years without benefit of probation, suspension, or parole, but the trial court did not otherwise alter the sentences in response to the defendant’s motion. The trial court reiterated that the attempted first degree murder sentence and the amended firearm sentence were tó run concurrently. Thereafter, the defendant filed a motion in arrest of judgment based, in part, on a “tainted and bias [sic] jury[.]” The trial court denied that motion.

The defendant appeals his conviction, asserting as error that:

I. The Trial Court erred in denying Defense counsel’s challenges for cause.
II. The Trial Court erred in accepting Dr. Richard Edwards, III as an expert on forensic mental examinations.

| ¿Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent. An-error patent is one which is “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La. Code Crim.P. art. 920(2). On review, we note errors with regard to the sentences reflected in the minutes of the sentencing hearing. Namely, the minutes from the sentencing hearing indicate: “The- Court stated that there is a statutory clause of ‘without benefit of probation, parole or suspension of sentence’.” However, the transcript of the sentencing hearing reflects that this restriction was applied only to the defendant’s sentence for possession of a firearm by a eonvicted felon. If there is a conflict between the minutes and the transcript, the transcript prevails. State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, we instruct the trial court to correct- the sentencing minutes to .accurately reflect the transcript that the denial of probation, parole, or suspension of sentence was applied only' to the defendant’s sentence for possession of a firearm by a convicted felon.

Denials of Challenges for Cause

The defendant first questions the trial court’s denial of his challenges for cause of prospective jurors Byron Bennett, Frederick Fontenot, Mary Verret, Darlene Guidry, and Joshua Broussard as well as juror Shawn Williams. Recently, in State v. Clark, 12-0508, pp. 98-99 (La. 12/19/16), 220 So.3d 583, 663, petition for cert. filed (U.S. June 10, 2017) (No. 16-9541), the Louisiana Supreme Court discussed challenges for cause and the standard for appellate review of rulings on cause challenges as follows:

IsA challenge for cause should be granted even when a prospective juror declares his ability to remain impartial if the juror’s responses, as a whole, reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably inferred. State v. Hallal, 557 So.2d 1388, 1389-90 (La. 1990). Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant ultimately exhausts his peremptory challenges. State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280 (citing State v. Ross, 623 So.2d 643, 644 (La. 1993)). A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals.an abuse of discretion. State v. Robertson, 92-2660 at p. 4, 630 So.2d at 1280 (citing State v. Knighton, 436 So.2d 1141, 1148 (La. 1983)). A .refusal by a trial, judge .to. excuse a prospective juror, .on the ground that he is not impartial, is not an abuse- of discretion when, after further inquiry , or instruction (“rehabilitation”), the potential juror has demonstrated a willingness and ability to'decide the case impartially according to the law and the evidence. State v. Copeland, 530 So.2d 526, 534 (La. 1988) (citing State v. Welcome, 458 So.2d 1235, 1241 (La. 1983)).
In addition, LSA-C.O.P. art. 800(A) requires an objection at the time of the ruling, which denies a challenge for cause, in order to,preserve the claim for appellate review. Article 800(A) also mandates that the nature of the objection and the grounds therefor be stated, at the time of the objection. With respect to that provision, this court has made clear:
Our law is also settled that an objection heed not be raised by incantation. “It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires'the court to take, or of his objections to the action of the court, and the grounds therefor.” C.Cr.P. 841; State v. Boutte, 384 So.2d 773 (La. 1980). The requirement that objection be raised contemporaneously is' not meant to be inflexible, but is designed “to promote judicial efficiency . and to insure fair play.” State v. Lee, 346 So.2d 682, 684 (La. 1977). Article 800 should not be read to differ in this respect from Article 841.
State v. Vanderpool, 493 So.2d 574, 575 (La. 1986).

As the present case involved an offense necessarily punishable by imprisonment at hard labor, the defendant possessed twelve peremptory challenges. See, La.Code Crim.P. art. 799. The record reflects that ■ the defendant used all twelve challenges during voir dire, so the, defendant need only show that the trial court erred in denying one of his challenges for caíase. Thus, to conclude whether there is a Irreversible error, we must review the entire voir dire of the six prospective jurors whom the defendant challenged for cause to determine whether there was an abuse of discretion.

Byron Bennett

The defendant challenged Mr. Bennett “because of the fact that [Mr. Bennett] stated that he knows [Officer] Benoit and that he went to school with [Officer Benoit’s children].” Following the trial court’s denial of the challenge, the only response from the defense was “Okay[,]” such that the defendant failed to lodge a contemporaneous objection. Moreover, the' defendant did not exercise a peremptory challenge on Mr. Bennett. In fact, later in voir dire, the defendant unequivocally accepted Mr. Bennett as a juror. Notably, Mr. Bennett ultimately did not serve on the jury because the trial court released Mr. Bennett from service upon explaining that “his domicile was very much in question” and “[h]e had no transportation” to the courthouse. We find no abuse of the trial court’s discretion as to Mr. Bennett.

Frederick Fontenot

The defendant, challenged Mr. Fon-tenot because “his niece is very good friends with [Officer] Benoit’s daughter[.]” After the trial court refused to grant the challenge, the defense proffered no response, thus.failing to lodge a contemporaneous objection. Regardless, although Mr. Fontenot revealed that he heard about .the incident from his niece who is “really good Mends” with Officer Benoit’s daughter, Mr, Fontenot answered affirmatively when asked.if- he “would make [his] decision solely upon what [he] hear[s] in the courtroom and not about what [he has] already heard, or [his] feelings towards the Be-noits, or anything of that nature[.]”

Later during voir dire, the defendant challenged Mr. Fontenot for cause on. the grounds that he was “too tied up for law enforcement[.]” The trial court denied this challenge too, and the defendant responded only with “So I’ll use a peremptory on him.”. .

|7In any event, the record shows no abuse of discretion by the trial' court in denying this" cause challenge. During voir dire, Mr. Fontenot revealed that he is a juvenile probation officer; served with one of the State’s attorneys on a juvenile substance abuse prevention coalition, which had not been going on “for a couple of years now, a few years[;]” knows the defense attorney “from [the defense attorney’s] work in Allen Parish with the court there[;]” and “several years” ago played basketball with the defendant but does not “know him personally.” Louisiana Code of Criminal Procedure Article 797 provides, in pertinent part,, for a challenge for cause if the “juror is not impartial” or if “[t]he relationship ... between the juror and the defendant, ... the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict[.]” La.Code Crim.P. art. 797(3). However, when the trial court asked whether he had “such a strong connection with law enforcement that [he] couldn’t be fair to a defendant in a criminal prosecution[,]” Mr. Fontenot responded, “No, sir[.]” Further,, when the trial court asked- whether, he could “be independent of any feeling [he has] toward these people[,]” Mr. Fontenot replied, “I believe so, your Honor.” -

. Thus, concerning Mr. Fontenot, the record as a whole shows no abuse of discretion by the trial court, r

Mary Verret

The defendant challenged Ms. Ver-ret because’ “she just seemed”... to have too many connections with the district attorney’s office and the sheriffs office, and the fact that her son was in law enforcement she would have a certain feeling that that could have been my son that got shot when he was a-fellow officer.”. When the trial court denied the challenge, the defendant responded, “Okay.-Then I use a peremptory on her[,]” thus failing to lodge a contemporaneous objection.. , .

• Nonetheless; thé trial court did not abusé its discretion in denying this challenge. As discussed previously, La. Code Crim.P. art. 797(3) provides grounds for |8a cause challenge if the juror has a relationship with the district attorney, but only if-the relationship “is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict[.]” La.Code Crim.P. art. 797(3). Additionally, “a juror’s relationship 'to a law enforcement officer is not, of itself, grounds for a challenge for cause. Rather, the question presented is Whether the prospective juror could assess the credibility of each witness independent of his or her relationship with members of law enforcement.” State v. Dorsey, 10-0216, p. 39 (La. 9/7/11), 74 So.3d 603, 631. Further, “[s]uch determinations are within the great discretion of the trial judge and will not be overturned absent an abuse of that discretion.” State v. Smith, 430 So.2d 31, 38 (La.1983).

Here, the trial court asked Ms. Verret whether she could “put aside any personal feelings towards the sheriff or [district attorney,]” and Ms. Verret answered, “Yes.” The trial court further asked if she could “be fair to both sides in this case and follow the law.” To which Ms. Verret replied, ‘Tes, sir,. I think I can.” Therefore, Ms. Verret’s answers demonstrated that she would decide the case independent of her relationships and not be influenced by them. We conclude that the trial court did not abuse its discretion in denying the cause challenge.

Darlene Guidry

The defendant challenged Ms. Gui-dry for cause after it was revealed during voir dire that Ms. Guidry and her husband were “recently” involved in a case in which they were sued by a party represented by the defense attorney. The trial court denied the challenge, and the response from the defense was “Okay[J” thus failing to lodge a contemporaneous .objection. Notably, the defendant did not have to use a peremptory challenge to prevent Ms. Gui-dry from serving on the jury. Instead, Ms. Guidry was dismissed from service because the State used a peremptory challenge to remove her. We discern no abuse of the trial court’s discretion with regard to Ms. Guidry.

IgJoshua Broussard

The defendant challenged Mr. Broussard “because he said that if—if you pointed—if you shoot someone, you always meant to kill them[.]” After the trial court denied the challenge, the only response from the defense-was to use a peremptory challenge to remove Mr. Broussard, thus failing to lodge a contemporaneous objection.

Regardless, Mr. Broussard’s voir dire does not reveal an abuse of discretion. In denying the' challenge, the trial judge explained that his “appreciation of what [Mr. Broussard] was saying is you don’t point a gun at people” because “it’s just an unsafe thing to do.” The trial judge continued that Mr. Broussard “wasn’t talking about intent, to' kill. He was talking about the use of firearms as being too dangerous, and that was the way he was taught.” Additionally, earlier during voir dire, Mr. Broussard was asked if there was anything ‘that would not make him a fair and impartial juror; he responded that “there’s nothing that would keep me from being fair and impartial.” Thus, Mr. Broussard’s voir dire does not reveal an abuse of discretion by the trial court.

Shawn Williams

The defendant did, however, timely ob-' ject to the trial court’s denial of his challenge for cause of Shawn Williams, who was eventually seated as a juror. When the defendant first urged the challenge, the trial court denied the challenge, and the defendant said nothing in response to the denial. However, the defendant later reiterated, his challenge for cause of Ms. Williams based on the same reason as before. The trial court again declined the challenge and accepted Ms. Williams as a juror. Like in Vanderpool, 493 So.2d 574, the defendant’s re-urging of the challenge served as an objection to the trial court’s earlier denial. In the re-urging of the challenge, the defendant made it “clear enough” that he wanted Ms. Williams excused for cause “and voiced the reasons why.” Id. at 575. By the time the defendant re-urged his |inchallenge for cause of Ms. Williams, the defendant had already exhausted his peremptory challenges. Thus, to determine whether reversible error exists, we examine Ms. Williams’s entire voir dire to determine whether the trial court abused its discretion in denying the defendant’s challenge for cause. See State v. Odenbaugh, 10-268 (La. 12/6/11), 82 So.3d 215.

The defendant’s challenge for cause of Ms. Williams was based on her relationship with the State’s attorney. The State’s attorney volunteered during voir dire that he and Ms. Williams “socialize” and that they “live about four houses apart.” The State’s attorney further explained that “since [Ms. Williams] moved in, [they]’ve become really good friends” and that Ms. Williams is “really good friends” with his wife. When asked whether she would agree with the statement that she and the State’s attorney are friends, Ms. Williams responded, “Yes[.]” As discussed previously, La.Code Crim.P. art. 797(3) provides a challenge for cause if a prospective juror’s friendship with “the district attorney ... is such that' it is reasonable to conclude that it would influence the juror in arriving at a verdict[.]” A relationship between a prospective juror and the district attorney, even one of blood or marriage, does not automatically disqualify the prospective juror from service. State v. Juniors, 03-2425 (La. 6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). Rather, the relationship is only sufficient to disqualify the juror if it is reasonable to conclude that the relationship would influence the juror’s decision on the verdict. Id.

In State v. Carthan, 377 So.2d 308 (La. 1979), the prospective juror had known the State’s attorney since high school, considered him a friend, and saw him from time to time at social events. The supreme court held that the trial court had not abused its discretion in denying the challenge for cause. Id. The supreme court reached this conclusion because the prospective juror “clearly stated that his acquaintance with the | uprosecuting attorney would not interfere with his being fair and impartial and that he would be guided strictly by the facts of the case.” Id. at 312.

Here, the trial court explained to Ms. Williams that while “[s]ocial ties are very strong influences sometimes,”' the court would be “asking [her] now to put aside [her] friendships and all that'carries with it and decide this case” and to “give [the defendant] being tried as fair a trial as if [she] didn’t know anybody involved and despite how it might affect the way [the State’s attorney] feels.” The trial court asked Ms. Williams whether she could “put it'aside that [she]—[her] friendship aside and decide it as though [she] didn’t know him.” Ms. Williams responded, “Yes, sir, I believe I can.” When earlier asked by thé trial court whether she thought she could “decide- the case solely on the evidence presented[,]” Ms. Williams answered affirmatively. Moreover, later during voir dire, Ms. Williams further provided assurance when she stated that she could “make an educated decision” after “hearing everything^]”

Like the juror in Carthan, 377 So.2d 308, Ms. Williams clearly stated that her relationship1 with the State’s attorney would not prevent her from rendering a fair verdict. She also answered affirmatively when asked whether she would be able to decide the case solely on the evidence presented at trial. Thus, having reviewed the transcript in its entirety, we find no abuse of the trial court's discretion in its determination that Ms. Williams’s relationship with.the State’s attorney, as described during voir dire, did -not. meet the standard of La.Code Crim.P. art. 797(3).

Nor does the rest of Ms. Williams’s voir dire reveal that the trial court committed an abuse of discretion. When the trial court briefly described the facts and parties involved to the potential jurors and asked whether anyone remembered the incident, Ms. Williams explained that she “remember[ed] .., a fundraiser[.]” Louisiana Code of Criminal Procedure Article 797 provides for a challenge for cause if a prospective “juror is not impartial, whatever the cause of [the] partiality.” La.Code Crim.P. art. 797(2). State v. Heard, 263 La. 484, 268 So.2d 628 (1972), the potential juror admitted that he had formed some opinion on the case based on rumor and talk he had overheard.. Nonetheless, the supreme court concluded that the trial court did not abuse its discretion in declining to excuse the potential juror because the potential juror indicated that he could objectively determine the defendant’s guilt or .innocence and decide the case solely on the evidence presented. Id.

Here, when questioned whether she remembered anything about the incident itself other than hearing about a fundraiser, Ms. Williams responded, “No, I don’t.” The trial court further inquired whether knowledge about a fundraiser gave Ms. Williams sympathy one way or the other about the case, and she responded, “No[.]” The trial court expounded that it was concerned with people.“decid[ingj the case solely .on the evidence presented” and asked Ms. Williams whether she thought she was capable of doing that. Ms. Williams responded, “I do.” Like the juror in Heard, 263 La. 484, 268 So.2d 628, Ms. Williams affirmed that she would not allow knowledge of the fundraiser to guide her decision and that she would decide the case solely on the. evidence presented at trial.

Additionally, on her juror questionnaire, Ms. Williams reported that she was not sure if she would hold the defendant’s failure to, testify against him. Louisiana Code of Criminal Procedure Article 797 provides for a challenge for cause if a prospective “juror will not accept the law as given ... by the court.” La.Code Crim.P. art. 797(4). In State v. Ellis, 28-282 (La.App. 2 Cir. 6/26/96), 677 So.2d 617, writ denied, 96-1991 (La. 2/21/97), 688 So.2d 621, the supreme court held that the trial court had not erred in refusing to grant cause challenges for prospective jurors who initially stated that they might have trouble applying the law. The supreme court explained that, after further explanation of the law,, the prospective jurors .were found to have abandoned their earlier position by no longer volunteering that it was a problem for them. Id. Likewise, Ms. Williams initially expressed un-. certainty in her | isjuror questionnaire about holding the- defendant’s failure to testify against him. However, after the trial court explained the law and the State’s attorney asked whether anyone continued to have reservations, about applying the law, Ms, Williams no longer volunteered that it, was a problem for her.

Further, Ms. Williams stated.that she believed she “would be a good juror” because she could “after hearing everything . •... make an educated decision[:]” Additionally, Ms. Williams stated that she had been on a jury prior to this case. She also explained that she has “confidence in the judicial system[,]” “think[s] it works[,]” and “feel[s] like it’s necessary[.]” We find that the trial court did not abuse its discretion in denying the challenge for. cause of Ms. Williams. Accordingly, the defendant’s assignment of error regarding juror Shawn Williams is without merit.

Qualification of Dr. Edwards as an Expert

The trial court appointed Dr. Richard Edwards, III, a Louisiana family practice, physician, and Dr. Alfred E. Buxton, PhD, MP, a Louisiana clinical/medical psychologist to serve on the sanity commission. The defendant , challenges the trial court’s acceptance of Dr. Edwards as an expert in the field of forensic mental examinations for the purposes of the sanity commission. The qualifications for the members of a sanity commission are given in La. Code Crim.P. art. 644(A), which provides in pertinent part that:

The sanity commission shall consist of at least two and not more than three members who are licensed to practice medicine in Louisiana, who have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment, and who are qualified by training or experience in forensic evaluations.

The long-standing rule is that selection of physicians to serve on the sanity commission rests within the sound discretion of the trial judge and should not be overturned absent an abuse of discretion. State v. Vince, 305 So.2d 916 (La.1974).

In State v. Rains, 12-615 (La.App. 3 Cir. 11/7/12), 101 So.Sd 593, the defendant questioned whether the appointed physician was qualified by training or I uexperience in -forensic evaluations according to La.Code Crim.P. art. 644(A). A panel of this court found no abuse of discretion in the trial court’s appointment of the physician, who was board certified in internal medicine and had been engaged in the practice of medicine for more than the requisite three years. Id. The panel noted that the trial court had considered the physician’s overall experience and had focused on the fact that the physician had been the Medical Director for a mental treatment facility in which capacity he oversaw the physical examinations of psychiatric patients in combination with the psychiatrist assigned to the patient. Id. Additionally, the physician had served the trial court on numerous occasions by performing competency evaluations on individuals in litigation. Id. Prior to the case at issue, the physician had never been appointed to a sanity commission'. Id.

Here, we likewise examine Dr. Edwards’s overall training and experience to determine whether the trial court abused its discretion in -finding Dr. Edwards qualified by training or experience in forensic evaluations as required by La. Code Crim.P. art. 644(A). According to his testimony, Dr. Edwards graduated from the Louisiana State University Health Science Center in Shreveport in 2009 and has been a licensed physician since 2010. Dr. Edwards indicated that he has been trained, to do mental evaluations, but he has not been formally trained to do forensic evaluations. At the time of his testimony, Dr. Edwards stated that he had performed six or seven other forensic mental examinations for the trial court in which capacity he was charged with rendering an opinion on the defendant’s mental capacity to proceed and the defendant’s ability to assist in his defense. Dr, Edwards also explained that “a large part of—family practice medicine is psychiatric treatment” and that “[b]oth in medical school and in residency,” he did “several months of psychiatric training in performing these exams.” He testified that as a family physician, he has “extensive working knowledge—working knowledge dealing with all mental illnesses[.]” Dr. Edwards expounded as follows:

1 is[W]e ■ spend- ■ approximately [sixteen] weeks during our third year of medical school working extensively in the inpatient and -outpatient wards for psychiatry. at LSU Health Science Center in Shreveport. In the fourth year, we do some elective work as well I believe about a month or so. And then my three years of residency has been, again, more general psychiatry as it applies to people in the real world, not—not necessarily in the—not necessarily inpatient psychiatry or that - sort of thing. I do also work—I did also work in the emergency - room. We PEC people, determine whether or not [patients are] a.-risk to their selves, to others, and perform those evaluations almost daily.

Dr. Edwards testified that for patients who did not require inpatient care, he continued to “see them as outpatients” and to “follow up on their care.” Dr. Edwards stated that he diagnoses ailments like schizophrenia and bipolar disorder, treats the patient initially, and continues to provide treatment unless the patient requires advanced care or has not responded well to treatment. Dr. Edwards indicated that “[p]robably a few times a month” he deals with patients who experience issues of hearing voices or auditory hallucinations. Dr. Edwards explained that he has never before been qualified as a forensic expert on mental examinations, and the record does not reveal that Dr. Edwards has ever been rejected as an expert.

At the time Dr. Edwards examined the defendant in June 2015, he had been engaged in the practice of medicine for more than the statutory requisite of three years. As Dr. Edwards testified, his work in medical school, his residency, and his family medicine practice exposed him to opportunities to diagnose and treat psychiatric patients. Further, like the expert in Rains, 101 So.3d 593, Dr. Edwards’s relevant experience includes having previously performed forensic mental evaluations in other cases for the trial court in which he rendered opinions on the defendant’s mental capacity to proceed and the defendant’s ability to assist in his defense. The fact that the trial court selected Dr. Edwards as a first time expert does not equate to an abuse of discretion. Rather, having reviewed the transcript in its entirety, we find that the trial court did not abuse its discretion in concluding that Dr. Edwards met the standard of La.Code CrimJP. art. 644(A).

| ^Accordingly, we find no merit in the defendant’s final assignment of error.

DECREE

For the foregoing reasons, the conviction of the defendant, George David Low-dins, is affirmed. The trial court is instructed to correct the sentencing minutes to reflect the transcript that the denial of probation, parole, or suspension of sentence was applied to the defendant’s sentence for possession of a firearm by a convicted felon only.

AFFIRMED.

      . The pleas allowed by law are guilty, not guilty, not guilty and not guilty by reason of insanity, and nolo contendere; • a plea of "guilty by reason of insanity” does not exist. La.Code Crim.P. art. 552.

      . Thereafter, the defendant filed a second motion to change his plea. This November 24, 2014, motion also requested a plea change "from not guilty to guilty by reason of insanity.” On December 1, 2014, the trial court again ordered the plea change "from not guilty to guilty by reason of insanity.”

      .The order granting the plea change "from not guilty to not guilty by reason of insanity” was signed by the trial court on January 14, 2015..However, as discussed later, the defendant filed another motion to change his plea in which he "requested] to change his plea , from not guilty and [sic] not guilty by reason of insanity” on December 10, 2015. The trial court denied the motion on December 15, 2015.

      . The briefs to this court contain the spelling "Verrett,” and the transcript contains the spelling "Verret.” For consistency purposes, this opinion will use the spelling "Verret” in accordance with the transcript.


source: Caselaw Access Project

author: CONERY, Judge.

license: Public Domain

text:
    John KENNEDY v. Christopher DAVIS, et al.
    17-218
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Gary J. Russo, Ian MacDonald, Jones Walker, LLP, .600 Jefferson Street, Suite 1600, Post Office Box 3408, Lafayette, Louisiana 70502, (337) 593-7600, COUN- ■ SEL FOR DEFENDANTS/APPELLANTS: BellSouth Telecommunications, Inc., Christopher Davis
    Andrew P. Texada, 3112 Jackson Street, Post Office Box 1711, Alexandria, Louisiana 71309, (318) 487-4910, COUNSEL FOR DEFENDANTS/APPÉLLANTS: BellSouth Telecommunications, Inc., Christopher Davis
    Virginia W. Gundlach, Jones Walker, LLP, 201 St.. Charles Avenue, 49th Floor, New Orleans, Louisiana 70170, (504) 582-8570, COUNSEL FOR DEFENDANTS/APPELLANTS: BellSouth Telecommunications, Inc., Christopher Davis
    Eugene A. Ledet, Jr., Brian M. Caubar-reaux, Brock H. Duke, Robert M. Marrion-eaux, Jr., Emily Meche, Wesley K. Elmer, Brian Caubarreaux & Associates, 4501 Jackson Street Extension, Suite A, Alexandria, Louisiana 71303, (318) 442-0900, COUNSEL FOR PLAINTIFF/APPEL-LEE: John Kennedy
    Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.
   CONERY, Judge.

11 Following a jury trial, the plaintiff, John Kennedy, was awarded $2,987,000 in damages, and the trial court signed a judgment awarding that amount plus legal interest and costs. Defendants, BellSouth Telecommunications, Inc. and Christopher. Davis (BellSouth) now appeal the trial court’s judgment. In his answer to appeal, Mr. Kennedy seeks additional damages for past'physical pain and suffering, past mental sufféring, and past loss of enjoyment of life. For the following reasons, we affirm the judgment in its entirety and deny any additional damages sought by Mr. Kennedy on appeals All costs of appeal are assessed to defendants Christopher Davis and BellSouth..

FACTS AND PROCEDURAL HISTORY

Plaintiff, John Kennedy, filed suit for injury to his back allegedly suffered following a May 22, 2014 automobile accident with BellSouth’s driver, Mr. Davis. Mr. Kennedy alleges that the injury caused by the accident necessitated his undergoing an eight-level lumbar fusion. Prior to trial, the trial court granted Mr. Kennedy’s motion for partial summary judgment and signed a consent judgment finding that the driver of the vehicle, Mr. Davis, and his employer, BellSouth, were solely at fault in the motor vehicle accident, and that Mr. Davis was in the course and scope of his employment -with BellSouth at the time of the accident. The case was submitted to a jury only on the issues of medical causation and damages.

The jury found in favor of Mr. Kennedy and awarded him $2,987,000 in damages. The Verdict Form dated June 30, 2016 provided:. ...

1) DID PLAINTIFF SUFFER DAMAGES AS A RESULT OF THE INCIDENT ON MAY 22,2014?

YES {X} NO { }

2) WHAT SUM OF MONEY WOULD REASONABLY COMPENSATE THE PLAINTIFF, JOHN KENNEDY, FOR:

A. MEDICAL EXPENSES:

1. PAST $ 356,000

2. FUTURE $ 266,000

B. PHYSICAL PAIN AND SUFFERING:

1. PAST $ 100.000

2. FUTURE $ 500.000

C. MENTAL SUFFERING:

1. PAST $ 100,000

2. FUTURE $ 500.000

D. LOSS OF ENJOYMENT OF LIFE

1. PAST $ 100.000

2. FUTURE $ 750.000

E. PERMANENT DISABILITY $ 250.000

F.PERMANENT SCARRING & DISFIGUREMENT $ 65.000

On July 18, 2016, the trial court entered a final judgment in accordance with the jury’s verdict. BellSouth filed a motion for judgment notwithstanding the verdict and remittitur and alternatively, a motion for new trial, which were denied by the trial court on August 29, 2016. BellSouth timely appealed the July 18, 2016 judgment. Mr. Kennedy answered the appeal, asking that the judgment be modified and that damages for past physical pain and suffering, past mental suffering, and past loss of enjoyment of life each be increased.

1 ^ASSIGNMENTS OF ERROR

BellSouth assigns the following errors on appeal:

1) Did the trial court commit plain and fundamental error, thereby interdicting the verdict and necessitating de novo review, by:
• failing to instruct the jury under the “Plain Civil Jury Instructions,” as mandated by the Louisiana Supreme Court,
• instructing the jury that the only issue it needed to decide was the amount of damages, or
• failing' to require that the jury make a specific causation finding on the verdict form?
2) Under either a de novo or manifestly-erroneous standard of review, did Kennedy fail to prove the essential element of causation?
3) Under either a de novo or manifestly erroneous standard of review where Kennedy’s treating neurosurgeon recommended multi-level lumbar fusion surgery years before the accident to treat Kennedy’s scoliosis and degenerative disc disease, and testified that Kennedy would have needed lumbar fusion surgery regardless of the accident, is Kennedy entitled to $620,588 (out of the jury’s total award of $622,000) in special damages attributable to the lumbar fusion surgery?
4) Under either a de novo or abuse-of-discretion standard of review, did the trial court err by entering judgment on the jury’s verdict when the general damages were excessive, overlapping, and Kennedy failed to meet his burden of proving entitlement to $2,365,000 in general damages?

LAW AND DISCUSSION

Assignment of Error Number One—Jury Instructions—Causation—Jury Verdict Form

In their first assignment of error BellSouth urges that the trial court committed plain and fundamental error requiring de novo review by failing to properly charge the jury, by instructing the jury that the only issue it needed to Rdecide was-damages, and by failing to require that the jury make a specific finding of causation on the jury verdict form.

In order to preserve an objection to either the jury instructions or the jury verdict form as an error on appeal, La. Code Civ.P. art. 1793(C) provides:

A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.
See Nunez v. Wainoco Oil and Gas Co., 606 So.2d 1320, 1324 (La.App. 3 Cir.), writ denied, 608 So.2d 1010 (La.1992).

Further, La.Code ' Civ.P. art. 1812(A) provides in pertinent part, “If the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue omitted unless, before the jury retires, he demands its submission to the jury.” Additionally, “[ajppellants who do not object to the special verdict form are not entitled to raise that issue on appeal.” Martinez v. Soignier, 570 So.2d 23, 30 (La.App. 3 Cir. 1990), writ denied, 572 So.2d 94 (La. 1991).

In this case, counsel for BellSouth participated in an extensive jury charge conference which was part of the record on appeal. During the charge conference counsel for BellSouth made three objections, two of which were sustained and one that was withdrawn. No objections on the issue of causation were made by counsel for BellSouth. In fact, counsel for Bell-South is quoted in the record on appeal of the jury charge conference, “I think causation is- addressed in others [jury charges] so you can strike the first.” A review of the jury instructions on the issue of causation provides that the trial court devoted two paragraphs of the jury ^instructions to the issue of causation and the law regarding the aggravation of a previously existing medical condition. Again, no objections were made to those jury charges.

On the'morning prior to closing arguments and the reading of jury instructions by the trial court, counsel was questioned by the trial court as to whether there were any objections to or changes that needed to be made to the jury instructions or the jury verdict form. Just prior to the jury entering the courtroom, on the final day of trial,' the trial court stated, “All right. She’s now given me the instructions. Do ya’ll want one last look to see that there’s not' any other edits? Ya’ll are satisfied? Okay. Let’s bring them out then,” Neither counsel responded to the trial court’s question. There were no objections to either the jury instructions or jury verdict form noted in the record. Counsel then proceeded to give closing arguments, following which the trial court instructed, the jury, explained the jury verdict form, and the jury retired to deliberate,

Even after the jury retired to deliberate, counsel for BellSouth voiced no objections to either the jury instructions or the, jury verdict form. None of the complaints, as to the jury instructions on appeal were made prior to or immediately following the jury’s retiring in this case. Therefore, BellSouth has waived any objections to either the jury instructions or the jury verdict form. La.Code Civ.P art. 1793(C), Nunez, 606 So.2d at 1324, Martinez, 570 So.2d at 30. BellSouth’s assignment of error number one is without merit.

Assignment of Error Number Two—Causation

BellSouth urges that Mr. Kennedy failed to prove that the accident at issue caused the need for his extensive eight-level fusion back surgery. Our court has | (¡consistently held that, “Causation is an issue of fact subject to the manifest error standard of review.” Hutto v. McNeil-PPC, Inc., 11-609, p. 18 (La.App. 3 Cir. 12/7/11), 79 So.3d 1199, 1213, unit denied, 12-402 (La. 4/27/12), 86 So.3d 628, cert. denied, 568 U.S. 959, 133 S.Ct. 428, 184 L.Ed.2d 289 (2012).

In Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115-16, the supreme court reiterated the duty of appellate courts in a manifest error review and stated in pertinent part:

In all civil.cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass’n, 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Rather in reversing a trial court’s factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual- basis for the trial court’s conclusion, and the finding must be clearly wrong. Stobarb v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1998).
This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial’ court’s findings. The court must review the entire record to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8 (La. 2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the judge’s or jury’s factfinding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973).

As previously stated, the only issues before the jury at trial were the causal connection between' the accident and Mr. Kennedy’s subsequent eight-level back fusion and damages. The record demonstrates that no ambulance was called to the scene of the accident, and Mr. Kennedy did not go to the hospital immediately | thereafter. Mr. Kennedy testified, at trial that he was not concerned about his back immediately following the .accident at issue, but that a few days after the accident his back became “stiff,” and he sought medical treatment from his treating physician, Dr. Troy Michael Vaughn.

Dr. Troy Michael Vaughn's Testimony

Dr. Vaughn is and was Mr. Kennedy’s board-certified treating neurosurgeon, and was accepted by the trial court as an expert in the field of neurosurgery. Mr. Kennedy began treatment with Dr. Vaughn in 2012, before the accident in question. .Based on his complaints of low back and leg pain, and his physical examination and test -results, Dr. Vaughn diagnosed Mr. Kennedy with scoliosis, degenerative disk disease, and stenosis in June of 2012. Dr. Vaughn testified that since Mr. Kennedy became his patient in 2012, he has seen him over two hundred times.

During his testimony, Dr. Vaughn explained to the jury that scoliosis was “basically a deformity of the spinal alignment.” Degenerative disk disease is an “injury to the structure of the spine, specifically the disks being the cartilage between the vertebrae.” ' Some disc disease is “hereditary, some of it being injury related.” Spinal stenosis usually occurs “when the spinal canal, the channel that contains the nerves, becomes smaller than normal.” This causes “compression or impingement of the neural structures, the spinal cord and nerve,” which can cause leg pain.

In August, of 2012, Dr. Vaughn recommended that Mr. Kennedy undergo a lami-nectomy. pb L3-4 to address his low back pain and leg pain. However, Mr. Kennedy chose not to undergo the surgical procedure recommended by Dr. Vaughn at that time, instead choosing to try Dr. Vaughn’s alternative | ¿recommendation of “supportive treatment,” which included “epidural steroid injections.” After undergoing .two or three series of injections, Mr. Kennedy ultimately decided to have the L3-4 lami-nectomy Dr. Vaughn recommended, and he so informed Dr. Vaughn on December 13, 2013.

In Dr. Vaughn’s testimony, he reviewed Mr. Kennedy’s medical records from the Veterans Administration Hospital (VA) dated: August 13, 2013, which indicated that Mr., Kennedy was diagnosed with “scoliosis and right lumbar radiculopathy.” Mr. Kennedy was. advised by the VA doctors that he could have a laminectomy in Houston, Texas, and he told the doctors at the VA he would think it over.

Ultimately Mr'. Kennedy returned to Dr. Vaughn in December of 2013 and advised he was ready to undergo a surgical procedure. Dr. Vaughn then offered Mr. Kennedy two 'different surgical options. The first was a decompression at L3-4 to treat the nerve impingement and address his leg pain, often called a discectomy or laminec-tomy, which also had been offered to Mr. Kennedy by the VA. The second surgery was referred to by Dr. Vaughn in his testimony as an arthrodesis or lumbar fusion “from L3 level to the sacrum,” which is a more invasive surgery than the lami-nectomy. Mr. Kennedy chose to have Dr. Vaughn perform the less invasive surgery to address his leg pain. Dr. Vaughn testified that he would not have offered the less invasive procedure of the decompression at L3-4 to Mr. Kennedy as an option unless he thought “it’s going to result in some improvement in these symptoms that we’re treating.”

On January 2, 2014, approximately four months prior to the accident at issue, Dr. Vaughn performed what he described as a microdiscectomy at L3-4, including a lami-nectomy. The procedure is actually referred to as a |9hemilaminectomy, which involves the removal of bone on one side of the spine and part of the lumbar L3-4 disc in order to address the areas of nerve root compression that were believed to be causing Mr. Kennedy’s leg pain.

Mr. Kennedy returned to Dr. Vaughn on January 17, 2014 and reported that his “left leg pain is ninety percent improved.” He again returned to Dr. Vaughn on April 21, 2014, and reported that he was having only mild lumbar back pain, but he did report having a two week period of left leg pain between the January and April visits. Dr. Vaughn testified that it was common for a patient who is going through the healing process after a hemilaminectomy to complain of some recurrent pain due to the inflammation of nerves during and following surgery, and he prescribed a “Me-drol Dosepak,” which is a steroid dose pack designed to reduce the swelling and inflammation of the nerves at the level of the surgery. Dr. Vaughn termed Mr. Kennedy’s sporadic leg pain as a “common finding,” and even without the automobile accident approximately one month after the surgery, it would have not been uncommon for Mr. Kennedy to have experienced complaints of leg pain.

Dr. Vaughn reviewed Mr. Kennedy’s medical records from the VA for May 7, 2014, two weeks before the accident of May 22, 2014. At that time, Mr. Kennedy only expressed complaints of constipation, no back pain. Following the May 7, 2014 visit to the VA, Mr. Kennedy saw his primary care physician, Dr. Benjamin J. Palombo, at Christus St. Francis Cabrini on May 12, 2014, ten days before the accident, and complained of left leg pain. When questioned as to whether Mr. Kennedy’s lumbar procedure had failed before the accident in light of this complaint to Dr. Palombo, Dr. Vaughn testified once again, “it’s not uncommon for them to have episodic either back or leg pain” after undergoing a hemilaminectomy.

l1nOn June 16, 2014, within twenty-five days of the accident on May 22, 2014, Mr. Kennedy went to see Dr. Vaughn and reported he had been in a car accident approximately one month before. Mr. Kennedy told Dr. Vaughn “that his lumbar back pain has been severe—has become severe.” Mr. Kennedy reported “the pain is now radiating to the left hip, thigh, extending past the knee to the foot and his symptoms are now interfering with all normal activities.”

Dr. Vaughn became concerned that Mr. Kennedy’s condition had changed, as -the symptoms he was reporting were much more severe than those that he would have expected from a patient that was recovering normally from surgery for a hemilami-nectomy. Dr. Vaughn ordered an MRI on July 7, 2014, which “showed a recurrence of his dis[k] (sic) herniation at the L3-4 level.” Dr. Vaughn then testified that the accident at issue caused a “recurrent impingement at the L3-4 level ... I think the accident at least had something to do with him developing his current symptoms. I suspect it is a high probability that it caused him to have recurrent impingement to the L3-4.” Dr. Vaughn had previously given consistent testimony in the record during his pre-trial deposition, stating, “it’s very probable that the trauma from the accident caused him to develop a recurrent impingement.”

Mr. Kennedy followed up with Dr. Vaughn on October 27, 2014, and reported that his symptoms had become more severe, that he could not get comfortable and was unable to sleep. In addition,- he was unable to keep his footing and had fallen twice in the last couple of weeks. Dr. Vaughn testified that Mr. Kennedy had never reported falling or had such severe complaints in any of his examinations prior to the surgery in January 2014, or prior to the accident in May of 2014.

|nIn December 2014, Dr. Vaughn recommended a multi-level surgery with fusion from T10-S1. He testified that Mr. Kennedy had no choice but to undergo the more extensive lumbar surgery, having already undergone surgery at.L3-4. Mr.' Kennedy’s spine was further weakened by the previous surgery, by his scoliosis, and by the trauma from the auto accident, making it more unstable. Dr. Vaughn further testified that because Mr. Kennedy’s “injury necessitates another surgery you can’t just treat the problem there, you have to treat the entire problem because if you do another surgery that surgery will necessitate him having a third surgery for the fusion. So it’s all intricately involved, it’s all intricately entangled.”

Dr. Vaughn recommended a fusion from T10 to the sacrum (SI). Dr. Vaughn testified that at no time prior to December 2014 had he recommended such an extensive surgery to Mr. Kennedy. He clearly gave his opinion that the surgery he was recommending was due to the injuries Mr. Kennedy sustained in' the May 22, 2014 automobile accident.

A letter dated March 11, 2015 from Mr. Kennedy’s counsel was also introduced into evidence, presented to the jury, and discussed with Dr. Vaughn while he was on the witness stand. The letter reiterated Dr. Vaughn’s prior deposition and trial testimony, with the only exception being that when Dr. Vaughn performed the surgery on Mr. Kennedy in April 2015 it was from T10 to SI and not Til to SI as anticipated in March of 2015.

Dr. Vaughn was again questioned.at trial as to whether there would have been a need for Mr. Kennedy to undergo any additional surgeries other than the first surgery at L3-4. but for the auto accident in question. Dr. Vaughn testified that he felt that Mr. Kennedy had been undergoing a normal recovery prior to the 112accident and could have gone ten to fifteen years without further surgery but for the trauma from the accident, of May 22, 2014.

Mr. Kennedy did undergo lumbar surgery from T-10 to S-l in April 2015. He underwent extensive in.hospital care and then was discharged to a nursing home because of the extent of his pain and' disability. After spending four weeks recuperating in a nursing home, Mr. Kennedy was discharged, but then underwent extreme physical therapy and other rehabilitation.

Dr. Vaughn testified that Mr. Kennedy’s “fusion hasn’t completely healed .. ■. or taken and he’s going to have to have at some point another surgery to revise the fusion.” This revision procedure was necessary to replace the screws that .are “not holding his spine solidly to his pelvis,” which causes him to bend forward when he stands up and is called “kyphotic posture.” Dr. Vaughn testified that he 'hoped the revision surgery will correct the problem and relieve Mr. Kennedy’s pain. Dr. Vaughn testified in detail about the revision surgery. He stated that Mr, Kennedy would have to undergo the same extensive rehabilitation that was required after the initial eight level fusion surgery in order to restore Mr. Kennedy to an acceptable level: Mr. Kennedy’s future prognosis remains guarded.

Dr. Alan Stuart Joseph’s Video Testimony

In support of its case, BellSouth presented the video testimony of Dr. Alan Stuart Joseph in opposition to the live testimony of Dr. Vaughn. Dr. Joseph is a board certified neurosurgeon who practices in Baton Rouge Louisiana. For the past few years, from 2013 to the present, he has specialized in pediatric neurosurgery. Dr. Joseph testified that this type of practice does, “not as much involve the treatment of degenerative type” of spinal disorders.

11RPr. Joseph did not personally examine Mr. Kennedy, but testified that he did not' feel compromised in his ability to give an opinion on medical causation and the relationship of the May 2014 automobile accident to the subsequent treatment received by Mr. Kennedy. Dr. Joseph’s-testimony was based on his review of Mr. Kennedy’s medical- records, which included imaging and records from .Open Air MRI-, Christus St. Francis, Cabrini Imaging, Alexandria Neurological Clinic, Harvey Chiropractic, Dr. Robert Rush, Dr. Gerald Leglue, and the VA in Alexandria. Dr. Joseph also reviewed the 'deposition of Dr. Vaughn, and briefly reviewed Mr. Kennedy’s deposition.

Dr. Joseph testified that he had reviewed Mr. Kennedy’s MRI taken in December of 2013 and the MRI taken after the accident in July of 2014 and found no sign of trauma. Dr. Joseph then testified that, in his opinion, it was unlikely that the accident was a big part of Mr. Kennedy’s continuing back problem. He stated, “For a while, yes, but that is usually measured in terms of weeks or maybe a month or two but not for the rest of your life.”

Dr.-Joseph testified that even without the accident, Mr. Kennedy would have eventually had to undergo the fusion from T10 to SI due to the condition of his spine. Dr. Joseph did agree with Dr. Vaughn that the accident sped up the need for a second surgery,-but stated, “you’re probably talking about a small amount of -time ,.. measured in months.”

Dr. Joseph did not agree' with Dr. Vaughn’s opinion that Mr. Kennedy could have gone ten to fifteen years without need for a second surgery if he had not been involved in the accident, considering the condition of his spine pre-accident. Dr. Joseph further reiterated he did; not' see any injury or re-injury at Mr. Kennedy’s L3-4 level, the site of the original surgery.

I uCounsel for Mr. Kennedy argues that BellSouth had the opportunity to secure by deposition or call to testify at trial any of. Mr. Kennedy’s other .treating physicians, which included Dr. Gerald Leglue, Dr. Robert Rush, and Mr. Kennedy’s primary-care physician, Dr, Palombo, who saw Mr. Kennedy just ten days prior to the accident.. BellSouth chose not to call any additional experts other than Dr. Joseph.

The jury in this case saw and heard Mr. Kennedy as he was testifying. Mr. Kennedy served in the Marine Corps for three years and was deployed to Vietnam in 1967 and 1968. He ultimately went to work for the VA and retired in 2009 with twenty plus years of service.' The jury also heard in depth testimony from Dr.' Vaughn, Mr. Kennedy’s treating physician since 2012. When Dr. Vaughn, Mr. Kennedy’s treating physician, was specifically asked if he associated “the [eight-level lumbar fusion] with this automobile accident, he unequivocally replied, “Correct.”

The trial court instructed the jury about the role of the treating physician and the greater weight that testimony should be accorded in opposition to a physician that has not served in that capacity. However, the trial court also cautioned that “the treating physician’s testimony is not irre-buttable, as the trier of fact is required to weigh the testimony of all the medical witnesses.”

Mr. Kennedy has a well-documented and extensive medical history involving his neck and back. However, the jury heard evidence that the accident at issue not only aggravated his pre-existing condition, but caused additional problems. “When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact; for only the fact finder can be aware of the variations in demeanor |1Rand tone of voice that bears so heavily on the listener’s understanding and belief in what is said.” Canter, 283 So.2d at 724.

The jury was provided with an adequate factual basis ,to conclude that the accident at issue caused'Mr. Kennedy to undergo the eight-level lumbar fusion, and that he would require further surgery to. correct the failed fusion.' After a complete review of the record, we find the jury’.s. conclusions as to causation to be reasonable and cannot say that the jury manifestly erred in reaching.their conclusion that, the May 22, 2014 automobile accident was causally related to the necessity for Mr, Kennedy’s extensive surgical procedure and future surgery. BellSouth’s assignment of error number two is without merit.

BellSouth’s Assignments of Error Numbers Three and Four

. BellSouth’s assignments of error three and four seek a reduction in. both the special damages awarded to Mr. Kennedy for the medical bills associated with the eight-level lumbar , fusion surgery and the general damages awarded, which include his extensive rehabilitation and' recovery following the surgery. Each will be addressed separately below.

Standard of Review—Damages

The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fatít, one entitled to great deference on review. 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). Moreover,
before a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then, only to the extent of lowering it (or raising it) to the highest (or lowest) point hnwhich is reasonably within the discretion afforded that court. Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1977) (internal citations omitted).

Wainwright v. Fontenot, 00-492, p. 6 (La. 10/17/00), 774 So.2d 70, 74.

Further, it is “the well-established principle that ‘a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct[.]’ ” Guidry v. Lafayette Health Ventures, Inc., 15-307, p. 8 (La. App. 3 Cir. 7/20/16), 203 So.3d 436, 441, writ denied, 16-1643 (La. 11/18/16), 213 So.3d 386, quoting Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993).

Assignment of Error Number Three— Special Damages

Special damages' are those which theoretically may be determined with relative certainty, including medical expenses and lost wages. Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953 So.2d 802. An appellate court, in reviewing a jury’s factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong.

Monte v. State Farm Mut. Auto Ins. Co., 13-979, p. 14 (La.App. 3 Cir. 5/21/14), 139 So.3d 1139, 1149.

The jury awarded $356,000 in past medical expenses and $266,000 in future medical expenses for a total of $622,000. Defendants argue that Mr. Kennedy is only entitled to $1,442 in special damages as medicál expenses directly related to the accident. In awarding $356,000 in past medical expenses for the medical expenses directly relating to the accident and the eight-level lumbar fusion, which has since failed," the jury obviously concluded that the extensive surgery and follow up treatment was a result of the accident at issue and awarded "special damages accordingly.

Further, the jury heard Dr. Vaughn’s testimony that Mr. Kennedy will have to undergo an additional surgery and the rehabilitation that will follow. The jury |17likewise concluded that because the first surgery was related to the accident at issue, the surgery to fix that surgery is also the responsibility of BellSouth, as the jury awarded $266,000 in future medical expenses. The jury had the medical bills, Dr. Vaughn’s testimony, and the testimony of Bob A. Giselair (the life care, specialist) upon which to base its findings. There is an adequate basis in the record to support the jury’s findings. BellSouth’s assignment of error number three is without merit.

Assignment of Error Number Four— General Damages

, Our court will not alter an award for general damages unless the record clearly reflects that the jury abused its discretion. Cox v. Moore, 01-878, p.13 (La. App. 3 Cir. 12/12/01), 805 So.2d 277, 287, writ denied, 02-724 (La. 5/31/02), 817 So.2d 94. Additionally the Cox court provided:

Vast discretion is accorded the trier of fact in fixing general damage awards. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Thus.the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.

Id. at 287, quoting Youn, 623 So.2d 1257.

In this case, the jury witnessed Mr. Kennedy first-hand. The jury was áble to hear from Mr. Kennedy," to watch him walk, and to witness his posture; Further, the jury heard from Mr. Kennedy’s family who corroborated his testimony.

Mr. Kennedy testified that he used to ride motorcycles, cut his own grass, and work around his house. He had a reasonably active lifestyle for a person of his age. Further, he stated that after the accident, he can now barely get out of. the house, and that when he does, it only involves going to the grocery store. The jury concluded based on the testimony presented at trial as well as its observations of 11sMr. Kennedy during trial, that Mr. Kennedy was not the same person he was before the accident. The record fully supports the conclusion that he suffers from daily pain, limited mobility, and has a long road ahead of him before reaching some level of recovery.

The testimony of'Dr. Vaughn indicates that extensive future surgeries, followed by serious long term rehabilitation are required. It is reasonable from the evidence presented for the jury to find that Mr. Kennedy has suffered extensive pain from his condition that was at the very least, seriously aggravated, by the accident at issue. The record fully supports the jury's $600,000 award for past and future pain and suffering, $600,0Ú0 for past and future mental suffering, $850,000 for past and future loss of enjoyment, of life, $250,000 for permanent disability, and $65,000 for permanent scarring and disfigurement.

We find that the jury did not abuse its vast discretion in awarding $2,365,000 in general damages to Mr. Kennedy. Therefore, BellSouth’s assignment of error number four is without merit.

ANSWER TO THE APPEAL

Mr. Kennedy answered BellSouth’s appeal asking this court for an increase in damages for past physical pain and suffering, past mental pain and ‘suffering, and past loss of enjoyment of life. The jury awarded Mr. Kennedy $100,000 in each of these three categories of damages. Mr. Kennedy asks the court to increase each award. However, the jury awarded extensive daihages for future physical pain and suffering, future mental pain and suffering, and future loss of enjoyment | iflof life. For this reason and due to the vast discretion afforded to the jury in awarding general damages, we will not award any further damages and affirm the jury’s $2,987,000 in total damages in its entirety. See Cox, 805 So.2d at 286.

CONCLUSION

After the judgment was signed, Bell-South filed a motion for judgment notwithstanding the verdict and remittitur, and alternatively' a motion for new trial. The trial court scheduled a contradictory hearing and heard extensive argument from defense counsel along the same lines advanced jn this court on appeal. The experienced and conscientious trial judge denied the motion, assigning comprehensive and extensive oral reasons, from which we quote:

So I’ve reviewed my own notes from that trial and the recollections of that testimony. And so what my memory is vivid on is Dr. Vaughn and how well he knew his patient'and that was clear to the jurors that were here. And I went back through the transcript because my memory had that he said he’d seen him over two hundred times and I found it in the transcript that, yes, he said that he’d seen this man over two hundred times, and so that came with a lot of weight, I’s say. He also testified for more than an hour or so in front of the jurors. So this is a physician who knew the patient well. And did the first surgery, did the second surgery and so that’s the way I take that the jurors certainly believed him and believed his statements when he was very clear on- causation. He was passionate about this patient, more so than I think other doctors probably would be of mine- that I’ve not seen two hundred time but this was a doctor who stepped out there and went to battle for his patient and you could tell that. When the second doctor, Doctor Joseph, testified, which was by video, our jurors reacted visibly at some points. They just were not convinced with Doctor Joseph; in such that he was rude about—that I found to be rude about comments on Doctor Vaughn. And that’s where I think their jury verdict came from that day.
Now, Mr. Kennedy, he was .certainly a man of not many words; even though I see the transcript is pretty long. But my memoiy of him is he just more told it like it is and he was repetitive about how he told it like it is. So any sympathy or empathy, he was not one who whined or carried on, that the jury may have developed about him came, I think, from Doctor Vaughn more so than Mr. Kennedy. He was just a tough bird, like you would expect him to be. Military for a long time.
| ¡^Therefore, there is a denial of your JNOV and I don’t find that there’s any reason to reduce the amount of the damages that they’ve awarded. And I don’t find that their claims are excessive.

For all of the foregoing reasons, we affirm the judgment of the trial court dated July 18, 2016, in favor of Plaintiff, John Kennedy in its entirety and deny his request for additional general damages on appeal. All costs of this appeal are assigned to Christopher Davis and BellSouth Telecommunications, Inc.

AFFIRMED.

      . Though not a published opinion, a panel of this court in the case of Bordelon v. Cutting Edge, 14-864 (La.App.3 Cir 2/18/15)(unpub-lished opinion) recently addressed the issue of general damages awarded in a case with a similar factual basis and affirmed an award of $1,950,000 in general damages.


author: THIBODEAUX, Chief Judge.

text:
    Sherry STEWART v. Malrick BATTS
    17-322
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      R. Greg Fowler, 3918 B Independence Drive, Alexandria, LA 71303, Telephone: (318) 487-9200, COUNSEL FOR: Plaintiff/Appellee—Sherry Stewart
    David Cleveland Hesser, Leo J. “Trey” Flynn, «III, Hesser & Flynn, A Limited Liability Partnership, 2820 Jackson Street, Alexandria, LA 71301, Telephone: (318) 542-4102, UOUNSEL FOR: Defendant/Appellant—Malrick Batts
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   THIBODEAUX, Chief Judge.

LThe defendantyappellant,. Malrick Batts, appeals the trial court’s judgment granting custody of his teenaged son to the son’s maternal grandmother, plaintiff/ap-pellee, Sherry Stewart. Finding no abuse of discretion on thé part of the trial court, we affirm the judgment awarding custody to Sherry Stewart.

I.

ISSUES

We must decide:

(1) whether the trial court committed reversible -error by applying the wrong legal standard; and
(2) whether the trial court abused its discretion in using documents not entered, into evidence to assist in determining the custody issue.

II.

FACTS AND PROCEDURAL HISTORY

Because thirteen-year-old C.R. got in trouble at school, he was beaten by his father, Malrick Batts, leaving the child •with bruises and whelps on his wrists, arms, shoulder, back, and buttocks, such that he was unable to sit. C.R. wrote a letter to his imprisoned mother, Brandi Rutter, telling her about the beating, the pain and bruises, and stating that the father whipped him too hard and for reasons “not called for.” C.R. said in the letter that his father “put his foot on my neck and said he would break it.” C.R. asked his mother to please help him to 12go live with his grandmother or his uncle. Mr. Batts intercepted the letter and wrote at the bottom of it, “I sure did whip his ass and I will do it again & break his neck.” He then sent the letter on to the child’s mother. The Office of Child Services (OCS) met with C.R., and a doctor confirmed the bruising which remained for some time after the whipping event. On November 3, 2014, the maternal grandmother, Sherry Stewart, filed for immediate, ex parte, temporary custody and for a protective order, attaching the letter written by C.R. with the comments of the father written at the bottom. Temporary custody was granted to Mrs. Stewart, along with the protective order. The trial judge ordered only a four-hour, supervised visitation for Mr. Batts on Sundays at the home of Mrs. Stewart, pending a hearing.

Mrs. Stewart subsequently filed a rule for custody and child support. An interim custody arrangement was agreed to in open court, giving Mr. Batts visitation for three weekends per month. At the time of the trial on permanent custody, C.R. was fifteen and had been living with his grandmother and her husband for almost two years. The issue at trial was whether the custody of the minor child should be' returned to the father or should remain with the grandmother, Mrs. Stewart. Mrs. Stewart was awarded custody, and Mr. Batts filed this appeal.

III.

STANDARD OF REVIEW

The standard of review for the appellate court in child custody cases has been well-established by this court, as stated in Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365, “The trial court is in a better position to evaluate the best 1¡¡interest of the child from its observances of the parties and witnesses; thus, a tidal court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.” Further, “[ejach child custody case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the child.” Bergeron v. Clark, 02-493, p. 5 (La.App. 3 Cir. 10/16/02), 832 So.2d 327, 330, writ denied, 03-134 (La. 1/29/03), 836 So.2d 54. See also Evans v. Lungrin, 97-541 (La. 2/6/98), 708 So.2d 731.

Prather v. McLaughlin, 16-604, pp. 3-4 (La.App. 3 Cir. 11/2/16), 207 So.3d 581, 584.

IV.

LAW AND DISCUSSION

The Appellate Legal Standard

Mr. Batts contends that the trial court committed reversible error by applying the wrong legal standard when it granted permanent custody of the minor child to the child’s grandmother, Mrs. Stewart. He asserts that the trial court used the standard of “best interest of the' child” instead of “substantial harm” as required by La.Civ.Code art. 133. The record reveals that the trial court properly applied both standards, citing Article 133 and articulating the two-pronged, redundant dual test from Black v. Simms, 08-1465 (La.App. 3 Cir. 6/10/09), 12 So.3d 1140.

Under La.Civ.Code art. 133 (emphasis added):

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome,and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

|4The 1993 revision comments to Article 133 trace the origins of the redundant dual test for divesting a parent of custody of his or her child back to 1982 and clarify that it is still applicable. Originally, the two-part statutory test required that “parental custody be shown to be ‘detrimental’ to the child and that divestiture be ‘required to serve the best interest of the child.’ ” La. Civ.Code art. 133, Revision Comment (b). Comment (b) further states that “it is clear that the heart of the parental primacy concept, the rule that a nonparent always bears the burden of proof in a custody contest with a parent, was not disturbed by the prior statutory enactment, and likewise has not been affected by this revision.” Id. Thus, it is the grandmother, Mrs. Stewart, as the nonparent, who bears the burden of proving the two prongs under the current law. In Black v. Simms, relied upon by the trial court, a panel of this court stated:

The redundant dual test is a dual-pronged test. Lions v. Lions, 488 So.2d 445 (La.App. 3 Cir.1986). First, before a trial court deprives a parent of the custody of his or her child, the trial court must first determine that an award of custody would cause substantial harm to the child. If so, then the courts look at the best interest of the child factors in Article 134 to determine if an award of custody to a non-parent is required to serve the best interest of the child.

Id. at 1143.'

This is exactly what the trial court did, following a full trial that included testimony from Mr. Batts; his girlfriend, Jennifer Glorioso; the biological mother, Brandi Rutter; the grandmother; Sherry Stewart, and the attorney appointed for C.R., Todd Farrar. Subsequently, in her extensive written reasons for judgment, after quoting Article 133 and the above excerpt from Black v. Simms, the trial judge, first addressed substantial harm and then fully discussed the twelve [ Bcriteria from La.Civ. Code art. 134 for determining the best interest of the child. The court stated as follows:
In considering the first prong, the history of this case reveals that when the child was placed with Mrs. Stewart there was a substantial risk of harm thus the issuance of the protective order. This prong has been satisfied based upon review of the record from .the protective order along with the findings of the OCS. investigation. The concern for the court, today.is what has changed since that event to reduce the potential for that level of harm to the child from occurring again along with the current status of the child.
The trial testimony did not reveal if Mr. Batts sought any treatment or parenting courses as a result of the OCS incident: What was revealed is that Mr. Batts believed that he was correct in his disciplinary actions and threatened] to beat the child again if the child disobeyed. Mr. Batts' is a strict disciplinarian such that the child reported to his attorney that “he feared his father” and often times is indifferent , to his father. [C.R.] wants a relationship with his father- but states that his father is often working. Mr. Batts believes that this is a situation in which the child-is .guiding the process and only “cried for mama” when he was disciplined.
Of concern to this court is the relative! ] lightness given for the event that . occurred. The child was beaten by his 'father and then wrote a letter to his mother who was in prison asking for help. Mr. Batts intercepted that letter and inserted language bragging about what he did to the child then intentional-' ly sent the letter to Ms. Rutter. As a result of that letter, OCS, days' later,’ did an investigation and found significant marks and bruises oh the child. OCS documented the child's fear of his father, arranged for a safety. plan and ’the grandmother filed the protective order which awarded her custody.
The testimony provided by the father is that he wants a relationship with his child but also expects the child to meet the father’s expectations. Mr. Batts reports that the grandmother is not always making the child available and that visitations are often complicated.
|fiKey to the success of [C.R.], as he quickly matures to adulthood, is the second prong which evaluates what is in the best interest of the child. These factors are significant in ■ examining the long term development of a child. As stated in Black v, Simms, a discussion of the twelve “best interest of the child factors” is nevertheless warranted in deciding the best custody arrangement that the child could benefit and. flourish. The .court- shall consider all relevant factors in determining the best interest of the child which specifies 12 factors, but not necessarily limited to those twelve. A discussion of the relevant facts follows each of these factors[.]
The trial court then .fully discussed all twelve factors under La.Civ.Code art. 134, which-provides as follows:
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4)' The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a - family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the 'child.
(7) The mental-'and physical health óf each party.
(8) The home, school, and community history of the child.
I?(9) The -reasonable preference of the child,- if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and' continuing relationship between the child and the’ other’ party.
(11),- The distance between. the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court found that factors one through three, and factor eleven, were evenly applicable to Mr. Batts and Mrs. Stewart. As to factor four, the court acknowledged that C.R. had lived with his father and stepmother after his biological mother went to. prison; then Mr. Batts’s marriage to the stepmother ended; ,and C.R. was living with Mr. Batts and a cousin. The court stated that the biological parents appeared to have worked through the challenges until the OCS event; i.e., the beating, occurred. In discussing factor five, the court recounted the- challenges that C.R. had endured early on, in nontraditional family environments. Mr. Batts and the biological mother were never married; nor did they ever reside, together. The family environment was better after Mr. Batts married but worsened after his divorce. The biological mother’s boyfriend, with whom she has a child, has not welcomed C.R., and she has had her visits with C.R, at Mrs. Stewart’s home. The court found in favor of Mrs. Stewart under factor five regarding permanence as a family unit, stating as follows:

When the OCS event occurred, the mother was in prison and not able to take custody of [C.R.]. The court awarded Mrs. Stewart custody and she was in a better position to. financially and emotionally care for the child and has done so since November, 2014. Today, Brandi (child’s mother), is living with her boyfriend with, whom she has a child; Mr. Batts (child’s father) lives alone, but I Rhas frequent overnight visits with his girlfriend [with] whom he has a minor child;, and Mrs. Stewart (child’s grandmother) lives with her husband.

The trial testimony also reflects that Mr. Batts, who is now single, has a total of seven children with five different mothers. The .ages of the children at the time of trial ranged from age nineteen to age two. Mr. Batts also testified that 'he works two jobs for a total of sixty to sixty-five hours per week.

In discussing factor six, the moral fitness of the parties, the trial court recounted the challenges of the biological parents. The mother struggles with addiction, while Mr. Batts is “a hard-working man challenged with practicing appropriate discipline and often is not available due to his work schedule.” Mrs. Stewart, on the other hand, had been providing C.R. with a loving and stable environment since she was granted temporary custody in 2014. .

Under factor seven, the trial court pointed to the mother’s addiction and the father’s limited parenting skills. The court again found the grandmother, Mrs. Stewart, to be physically and mentally capable of caring for C.R. with no evidence of any challenges. As to factor eight, regarding home, school, and community, the trial court found:

In the life of a teenager, home, school and community is all important.- [C.R,] presented as a typical teenager with hopes of the future and current enjoyment of his present school. There were conversations about his wanting to attend school with his sibling however he reported to his attorney that he was also happy in his current school environment. The 2015/2016 yearbook recognized [C.R.] as freshman of the year;, evidence that he has acclimated and has been well accepted into his school. His grandmother reported that [he is] engaged in his church and in activities -around the home. Since November 2014 [C.R.] has ^established himself and is comfortable,

hUnder the reasonable preference Of the child factor, number nine, the trial court found that C.R. feared -his .father and always had, and she found his preference for his maternal grandmother, Mrs. Stewart, reasonable. The court also mentioned that C.R.’s current school had four-day weeks Which allowed him to spend long weekends with his siblings. We further note that Todd Farrar,, attorney for C.R., testified that C.R. was afraid of his father before and after the - custody event, always had. been, and nothing had changed since the event.

•Under factor ten, each party’s ability and willingness to foster the child’s relationship- with the other party, the court found that visits with the father had continued while C.R. was in the custody of his grandmother, even though the parties’ relationships with each other had become strained. Finally, under factor twelve, the court found that after the OCS event, it was the grandmother who had made the efforts to provide. C.R. with a loving and stable environment.

■ The record also reveals that the father did not provide C.R. with vision or dental care, as C.R. had numerous cavities, and his glasses were too small and had the wrong prescription when C.R. first went to live-with his grandmother. Further, while with his grandmother, C.R. received very little in the way of clothing, food, and cash from his father. The grandmother provided all of these things, including medical, dental, and vision care, and she encouraged C.R.’s church, drama, and sports activities, providing transportation to all events and practices. While in her care, C.R. was elected freshman favorite and voted onto the student council. In weighing al! of the factors of La.Civ.Code art. 134, the trial court ■ found, under the second prong of the dual prong test, that it was in C.R.’s best interest to' remain with his grandmother, Sherry Stewart.

ImMr. Batts argués that the-trial court did not evaluate “substantial harm” at the time of trial but rather discussed it only in terms of the event that had occurred two years before trial. We disagree. As seen above, the trial court repeatedly discussed the ongoing challenges that Mr. Batts had with limited parenting skills, with no indication of change, and it discussed C.R.’s ongoing fear of his father. The trial court also articulated:

"Parenting is no easy task-and further, not a task that can be taught overnight. Parenting is an ongoing practice refined through trial and error. Often times we look to our individual customs, family, and our parents as a blueprint for the approach taken with our children. The Court has now considered the development of the child pre and post the OCS •event, current stability of the minor child in school while with Mrs. Stewart (his maternal grandmother); the minor child’s current relationship with his siblings; and weighing all these factors the court is of the opinion that the current custody arrangement is the correct one.
An award of custody to a non-parent is certainly one that should not be taken lightly, however the situation that brought about the change in custody is significant and cannot be ignored. Mr. Batts continues to be a father who works multiple jobs to support his children which is commendable, however learning how to appropriately parent children, even as they reach[ ] the challenging teenage years, is critical for the young person to reach their full potential and is a key part of parenting. The concern as noted is that Mr. Batts appeared to be proud of his disciplinary action and threatened further harm to his child. A healthy fear of a parent is certainly something that is required but the level of fear that [C.R.] had of his father is, by far, not the healthy image a child should have of a parent.
Ms. Stewart has provided [C.R. with] becoming fully engaged in his physical home, in a church home and thriving in his school home. There have been no reports of behavioral incidents in his school and the grandmother has kept visitation going with both the mother and father. The visits with the -father need to improve and be more consistent with little interference by the grandmother or mother. ■ The uniqueness of the current school setting (4 Inday school week) offers a benefit to this situation, in that [C.R.] can have extended weekends with his father and siblings. This court sees that it is in the best interest of this child to have that contact so that a healthier relationship between [C.R.] and his father can develop.
The Court also encourages Mr. Batts to seek out information on parenting of teenagers and younger children because he is not only a father to [C.R.] but to the younger child with Jennifer Glorioso. Mr. Batts has many more years ahead of him as a father and one day a grandfather. The OCS event needs to be a onetime event and not something to repeat with [C.R.] or with any other child.

Consistent with the above, the trial court’s judgment ordered that Mr. Batts have visitation with C.R., at a minimum, every other weekend, from Friday at 5:00 p.m. through Monday at 5:00 p.m.,' as long as C.R. had a four-day school schedule. The court also ordered that the parties submit a visitation plan to conform with the needs of the child and those of both parents. The trial court made it clear that Mr. Batts still needed to work on parenting, implicitly finding that it would be harmful to grant him custody, and that it was in C.R.’s best interest to reside with his grandmother and to obtain an improved relationship with his father through generous visitation. It is now well-settled that the best interest of the child is the overriding test and the primary consideration for all child custody determinations. See Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231. We find no merit in Mr. Batts’s argument that the trial court used -the wrong legal standard in determining the custody issue in this case.

Reference to Documents Not Entered Into Evidence

Mr. Batts further assigns as error the trial court’s references to the OCS examination, stating that no such evidence was ever entered into the record. The trial transcript reveals that the OCS , file was requested in open court and that Lathe trial judge obtained the original file during trial and made its receipt a part of the record when the OCS representative hand-delivered it to her in the courtroom for an in-camera inspection. As counsel for Mrs. Stewart points out, the record was used and discussed in the trial court’s chambers, and it was used and discussed in open court by the trial judge, without objection. In fact, the record reveals that the trial court read from the OCS report in open court without objection.

More specifically, the court called the parties and counsel into chambers. When they returned to the courtroom and went back on the record, the trial judge stated as follows:

BY THE COURT:
Well, we all had a little pretrial, I might as well make a record of it. As there was no one not there. All right. I did receive the record from OCS and I’m keeping it tonight. They allow in-camera inspections .... The lawyers at a pretrial told me they thought it was a nonfinding, that’s why I asked for the record and I received it. And so there was—yes, there was a finding. And what they do with teenagers typically is' they feel like teenagers are old enough to call the police on their own so they leave them there. Philosophically I totally disagree as do a lot of people as [to] that. So what they'did was create a safety plan. What I could not tell was the date of the letter that was sent to Ms. Rutter. So that the letter. then went to Ms, Rutter who then contacted her mother who then triggered it to the school system to say please call an investigation. And the point to all that is by the time he saw a doctor—so it looks like they received the report on October the 16th. So they took him to the doctor—what did I tell you that date was a while ago?
BY MR. FOWLER:
October 21st.
BY THE COURT:
21st. So here it was even five more days later that the doctor indicated he had bruising on—I’ve got to find |13it again. And that’s what has triggered the say-so is because he still had significant bruising.
BY MR. FOWLER:
Bruising on wrist, shoulder and buttocks ....
BY THE COURT:
Yeah. Wrist, shoulder and buttocks. There it 'is. There’s the—and that’s dated October the 21st. He still had resolving bruises is what the doctor indicates. He saw Doctor Mitchell. And had linear arm abrasions upon his shoulder and he also had bruising to his buttocks. So this was days and days later; So this was not a whipping. This would have been at the level of a beating. And so OCS put a safety plan in place with a cousin who supposedly lived at.the house at that time with the cousin swearing she would contact if something else should happen. And in the meantime this other stuff got triggered. And it also said the child was fearful. That’s how it rose to a level— and also on the investigation it rose to a higher level because the child had bruising and—so they rate their cases too. And it rose to a higher level because the child stated he was fearful and had those bruising[s]. So it wasn’t a priority one case, it was a priority two, so that’s why it took them a couple of days to get him to the doctor.

Thus, the trial court read from the OCS report, and Mr. Flynn, counsel for Mr. Batts, did not object to the court’s use of the OCS report, or the court’s finding based upon the report. It is well-settled under La.Code Civ.P. art. 1635, that such failure to contemporaneously object to' the trial court’s action constitutes a waiver of the right to complain on appeal. Broussard v. West-Cal Const. Co., Inc., 96-18 (La. App. 3 Cir. 6/12/96), 676 So.2d 743. Accordingly, Mr. Batts’s contention regarding the erroneous use of the OCS documents that were not entered into’ evidence is without merit.

CONCLUSION

Based upon the foregoing, we find no abuse of discretion in the trial court’s award of custody to Mrs. Stewart. The judgment of the trial court is affirmed. All costs of this appeal are assessed to Malrick Batts. ’ ,

AFFIRMED.

      . Mrs. Stewart requested permanent custody and child support after being granted temporary custody.

      . Initials are used to ensure the confidentiality of the minor and to protect his or her identity, in accordance with Uniform Rules— Courts of Appeal, Rule 5-2.