author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Michael BROWN.
    No. 2009-KA-0657.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 14, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

|rThe State filed a bill of information charging Michael Brown with possession with intent to distribute heroin and possession of cocaine. The defendant subsequently entered a plea of not guilty and filed a motion to suppress the evidence. Appellant maintains that his detention by police amounted to an arrest for which there was no probable cause and that he was not read his Miranda rights prior to relinquishing the contraband. We find that there was sufficient evidence to support the issuance of the search warrant given the controlled purchase of cocaine from Appellant at the residence. We find no abuse of discretion in the trial court’s credibility determination as to Appellant’s claim that he was not read his Miranda rights and the court’s denial of the motion to suppress the evidence. The Appellant’s convictions and sentences are affirmed.

LEGAL AND PROCEDURAL HISTORY

The State filed a bill of information charging Appellant with possession with the intent to distribute heroin and possession of cocaine. Appellant entered a not guilty plea. A hearing on motions was later conducted, and the matter was taken under advisement; the state and defense were to submit memoranda. The ruling on motions that was scheduled for September 14, 2005, did not occur due to the after effects of Hurricane Katrina. Both parties submitted memoranda to the district 2court, and district court issued a subsequent ruling denying the motion to suppress the evidence. The motion hearing was later reopened for Appellant’s testimony. Thereafter, the district court again denied the motion to suppress the evidence. Following a bench trial, Appellant was found guilty of possession of heroin and possession of cocaine. In August 2007, Appellant pled guilty as a second felony offender and was sentenced on count one pursuant to La. R.S. 15:529.1 to serve five years at hard labor. As to count two, appellant was sentenced to serve three years at hard labor. The sentences were ordered to run concurrently with each other and with any parole time that he might owe. The district court granted appellant’s motion for an out-of-time appeal.

FACTUAL BACKGROUND

The record reflects that Officer Jackson was informed by a confidential informant that someone name “Mike” was selling co-eaine from the residence located at 2314 Clouet Street. The informant made a controlled buy from “Mike” at that location while Officer Jackson observed from a surveillance location that was set up prior. Thereafter, Officer Jackson obtained a search warrant for the residence and verified that Michael Brown lived at that location. Officer Jackson and Detectives Evans and Jacque later arrived at the residence to execute the warrant. After a couple of minutes, the officers observed appellant exit the residence with another man and leave in a vehicle. The officers pursued and stopped the vehicle after a couple of blocks. Appellant was advised that the officers had a search warrant for the residence and that he was under investigation for narcotics violations. Appellant and the other man were placed in the back of the police vehicle and taken back to 2314 Clouet Street. The two men were not handcuffed; Officer Jacque rode in the back seat with them.

|aTwo of the officers entered the residence and observed four other individuals in the house. All four of those individuals were arrested for possession of drug paraphernalia. Once the location was secure, Appellant was taken into the house and given a copy of the search warrant. He was also advised of his Miranda rights and Appellant indicated that he understood those rights. Officer Jackson then asked Appellant whether he wanted to declare any narcotics, weapons, or money. He replied in the affirmative and proceeded to remove from the front of his pants a plastic bag containing twenty-two foils of heroin and a plastic bag containing one piece of crack cocaine. A sum of money was also seized. No additional contraband was found during the subsequent search of the residence.

Appellant testified at the motion hearing and stated that the police approached him in May of 2005 while he sat on his front porch. The officers allegedly warned him that they were aware of his drug activity and told him to stop selling drugs. Because he was on parole at the time, Appellant heeded the officers’ advice and stopped selling drugs in May.

Appellant further testified that on June 27, 2005, he left the house that night with his uncle and was headed to the store when he was pulled over by police. He testified that the police asked him if he had any drugs, and he replied no. Appellant testified that the officers searched the vehicle he was driving. Appellant and his uncle were then handcuffed, placed in the back of the police vehicle, and taken back to the house. He, his uncle, and the other occupants of the house were placed in the living room and were individually taken to a back bedroom and questioned by police. Appellant was the last to be questioned. Appellant testified that when he arrived in the bedroom, the officers unfastened his pants and retrieved the drugs. Appellant testified that he could not retrieve the drugs himself because |4he was handcuffed. Appellant denied telling the officers he had drugs on his person. Appellant also testified that he was not informed of his Miranda rights.

Appellant’s trial was relatively short and consisted of the identification of the search warrant and evidence seized from Appellant by Officer Jackson. The State and defense counsel stipulated that Criminalist Corey Hall was an expert in the analysis and identification of controlled and dangerous substances. Counsel for both parties also stipulated that the two foils that were actually tested gave a positive result for heroin and that the rock that was seized tested positive for cocaine.

ERRORS PATENT

Our review of the record reveals that there are no errors patent.

MOTION TO SUPPRESS EVIDENCE

In a single assignment of error, appellant asserts that the district court erred by denying the motion to suppress the evidence. At issue is whether Appellant was properly detained when such detention was based solely on the search warrant and the seizure of the contraband from his pants. Appellant avers that his detention by police amounted to an arrest for which there was no probable cause and that he was not read his Miranda rights prior to relinquishing the contraband.

There was sufficient evidence to support the issuance of the search warrant, given the controlled purchase of cocaine from appellant at the residence. See State v. Green, 2002-1022 (La.12/4/02), 831 So.2d 962; State v. Johnson, 408 So.2d 1280, 1283 (La.1982); State v. Rando, 2003-0073 (La.App. 4 Cir. 4/9/03), 848 So.2d 19. A warrant to search premises for contraband, founded on probable cause, implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Moreover, the controlled buy also provided the police with sufficient probable cause to arrest Appellant even though no arrest warrant was obtained. See State v. Robertson, 2002-0156, pp. 7-8 (La.App. 4 Cir. 2/12/03), 840 So.2d 631, 636-37. Thus, Appellant was properly detained by the officers.

Insofar as Appellant asserts that he was not read his Miranda rights, Officer Jackson testified at the motion hearing that he advised Appellant of his rights prior to asking him whether he had any contraband to declare. Officer Jackson recited those rights in open court. Also, Officer Jackson indicated that Appellant verbally stated to him that he understood his rights. Appellant testified that he was not advised of his rights. The district court judge indicated in a written judgment issued after hearings on Appellant’s motion to suppress evidence that he accepted the police officer’s testimony as believable. A determination of credibility lies within the sound discretion of the trial court and should not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938 (La.1984). Also, a trial court’s ruling on a motion to suppress is entitled to great weight. State v. Craft, 2003-1852, p. 5 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 363; State v. Banks, 2000-0525, pp. 6-7 (La.App. 4 Cir.10/17/01), 800 So.2d 28, 33. The ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of discretion. State v. Long, 2003-2592, p. 5 (La.9/09/04), 884 So.2d 1176. We do not find that district court abused its discretion in denying the motion to suppress the evidence.

| «CONCLUSION

Accordingly, we find no abuse of discretion in the district court’s denial of Appellant’s motion to suppress evidence. We affirm Appellant’s convictions and sentences.

CONVICTIONS AFFIRMED SENTENCES AFFIRMED.

      . During his argument at the conclusion of the motion hearing conducted on March 17, 2006, defense counsel stated that the police report shows that appellant was not read his rights. However, the report included in the record reveals no such declaration.


source: Caselaw Access Project

author: BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana in the interest of J.L.
    No. 2009-CA-0792.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 14, 2009.
    Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, LA, for Appellant, J.L.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   BELSOME, Judge.

| i J.L. appeals a judgment from the Juvenile Court for the Parish of Orleans adjudicating him delinquent on two counts: 1) Possession of a Controlled Dangerous Substance in a Drug Free Zone (La. R.S. 40:981.3); and 2) Possession with Intent to Distribute a Schedule I Controlled Dangerous Substance (La. R.S. 40:966(A)(2)). For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

J.L. was stopped by Officer Donald Sino, Jr. when he tried to enter Fredrick Douglas High School without passing through the metal detector. Officer Sino proceeded to conduct a pat down and discovered a bulge in J.L.’s pocket. The bulge was a clear plastic baggie containing fourteen smaller blue plastic baggies of marijuana.

Following a petition filed by the District Attorney for the Parish of Orleans, an adjudication hearing was held in juvenile court at which time J.L. was adjudicated delinquent on both charges. J.L.’s motion to suppress evidence was denied by the court.

|2The juvenile court entered a disposition of commitment to the Department of Public Safety and Corrections for a period not to exceed one year. Execution of the commitment was suspended, and J.L. was placed on active probation under the supervision of the Office of Youth Development for one year.

During the adjudication hearing, the State presented testimony from Officer Sino, and New Orleans Police Officer Lawrence Weathersby, Jr. The defense presented Lori Marshall, an investigator for Juvenile Regional Services, and J.L. as witnesses.

Officer Sino testified that while on duty on the morning of October 21, 2008, he was notified by two of the school’s coaches that students were attempting to sneak into the school through the gym, as opposed to the front entrance wherein students were required to pass through a metal detector. Officer Sino discovered J.L., in his school uniform, entering the school through the gym. When questioned by Officer Sino, J.L. admitted that he had not gone through the metal detector at the front entrance. When asked by Officer Sino if he could conduct a pat down on him, J.L. did not refuse. During the pat down, Officer Sino detected a bulge in the left pocket of J.L.’s pants. J.L. was wearing another pair of shorts inside of his school pants. In response to the question, “did you discover what the bulge was,” Officer Sino stated: “I asked [J.L.] would he go inside his pants pocket and see whatever that bulge was, he started shaking and he refused to go inside his pants pocket to get the bulge was inside, and that’s when I kind of pulled his pants down a little bit and I went inside his pants pocket and retrieved the clear plastic bag of marijuana inside his left pants pocket.” Officer Sino testified that the clear plastic bag contained fourteen individual blue clear plastic bags of a substance he believed to be marijuana.

|3Officer Sino escorted J.L. to the school office where Officer Sino’s senior supervisor conducted another pat down of J.L. At that time, one hundred and forty-two dollars in cash was found inside of the right pocket of J.L.’s pants. Shortly thereafter, Officer Weathersby arrived at the scene to conduct a further investigation. Officer Weathersby counted the money found on J.L., which consisted of four twenty-dollar bills, one five-dollar bill, and fifty-seven one-dollar bills. Officer Weathersby, in the presence of J.L., conducted a test on the substance confiscated from J.L. The substance tested positive for marijuana. The crime lab report, confirming the positive test results, was introduced into evidence.

Officer Weathersby corroborated the testimony of Officer Sino regarding the investigation and arrest of J.L. Additionally, Officer Weathersby identified the fourteen individual bags of marijuana and the cash confiscated from J.L., which Officer Weathersby labeled and signed at the time of J.L.’s arrest. Officer Weathersby also testified that the quantity of bills found on J.L. was consistent with the sale of narcotics.

Ms. Marshall was called as a defense witness. As an investigator for Juvenile Regional Services, Ms. Marshall interviewed Officer Sino on February 9, 2009, in connection with J.L.’s case. Ms. Marshall testified as to what Officer Sino told her during the interview. Ms. Marshall had no first hand knowledge of the facts surrounding J.L.’s arrest. Ms. Marshall’s version of the “pat down” of J.L., as purportedly told to her by Officer Sino, differed from Officer Sino’s testimony at trial. Ms. Marshall stated that Officer Sino told her the following: 1) He began to pat down J.L. and did not find anything in his pockets; 2) He then moved downward to pat down J.L.’s socks; 3) J.L. moved his leg back and Unformed Officer Sino that he had marijuana in his sock; and 4) Officer Sino removed a “nickel bag” of marijuana from J.L.’s sock.

When questioned on cross-examination about the discrepancy in Ms. Marshall’s testimony, Officer Sino stated that Ms. Marshall was mistaken, and that the pat down she described was actually one he had conducted on another student, which Officer Sino was able to identify by name. Officer Sino testified that he did not tell Ms. Marshall that he retrieved the marijuana from J.L.’s socks as she described.

J.L. testified that he did not go through the school’s metal detector on the morning of October 21, 2008. He admitted that he consented to the pat down, and that he was in possession of the marijuana and cash found in his pockets. As an explanation for the cash in his possession, J.L. claimed that he had been employed at Rally’s for two months, working approximately thirty hours per week at $6.55 per hour.

LAW AND ANALYSIS

In his sole assignment of error, J.L. contends that the State failed to present sufficient evidence to uphold the conviction for possession with intent to distribute marijuana. More specifically, J.L. argues that there was no evidence to support the conclusion that the marijuana found on J.L. was inconsistent with personal use or that J.L. distributed or attempted to distribute the marijuana.

In a delinquency proceeding, the State must prove beyond a reasonable doubt that the child committed every element of the offense charged. La. Ch. C. art. 883. Just as in a proceeding against an adult, the constitutional standard for evaluating the sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that |sthe state proved all of the essential elements of the crime beyond a reasonable doubt. State in Interest of R.T., 00-0205, p. 2 (La.2/21/01), 781 So.2d 1239, 1241, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

An appellate court reviews the facts and evidence and applies the law as it does in an adult proceeding; likewise, the appellate court grants deference to the trier-of-fact that observed the demeanor of the witnesses and was in the best position to determine credibility and the weight to be given the evidence. La. Const, art. 5, § 10(A) and (B); State v. J.N., 07-1229, pp. 7-8 (La.App. 4 Cir. 5/7/08), 984 So.2d 910, 915.

The crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. La. R.S. 40:966(A). Specific intent is defined as that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(1).

The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. Davis, 06-1330, p. 9 (La.App. 4 Cir. 4/25/07), 958 So.2d 713, 718; State v. Carey, 07-674, p. 4 (La.App. 5 Cir. 12/27/07), 975 So.2d 27, 29, writ denied, 08-0430 (La.11/10/08), 996 So.2d 1064. The presence of large sums of cash is considered circumstantial evidence of intent to distribute. State v. Johnson, 00-1528, p. 6 (La.App. 4 Cir. 2/14/01), 780 So.2d 1140, 1144; State v. Brown, 42,188, p. 14 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, 743; State v. Young, 99-1264, p. 14 (La.App. 1 Cir. 3/31/00), 764 So.2d 998, 1006.

16In State v. Hearold, 603 So.2d 731, 735 (La.1992), the Supreme Court stated:

Intent is a condition of mind which is usually proved by evidence of circumstances from which intent may be inferred. In State v. House [325 So.2d 222 (La.1975) ], this court discussed certain factors which are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance. These factors include (1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute. [citations omitted)

This Court interpreted Hearold in State v. Cushenberry, 94-1206, p. 6 (La.App. 4 Cir. 1/31/95), 650 So.2d 783, 786:

In affirming defendant’s conviction, we first note that the Court in Hearold refers to the factors enunciated as “useful” in determining whether circumstantial evidence is sufficient to prove intent to distribute. We do not interpret the holding in Hearold to require that the evidence fall squarely within the factors enunciated to be sufficient for the jury to find the requisite intent to distribute.

Following the testimony and presentation of evidence in the present case, the juvenile court judge found J.L. guilty of possession with intent to distribute a Schedule I controlled dangerous substance “based on the fact that [J.L.] had a number of bags of marijuana and cash in small denomination.” Analyzing the facts of this case and applying the Hearold factors, we conclude that the trial court’s finding of specific intent to distribute marijuana was sufficiently supported by the circumstantial evidence presented. The State presented evidence that the packaging of the marijuana was in a form consistent with distribution. Further supporting the finding of intent to distribute was the large amount of cash in small bills consistent with the sale of narcotics.

17Thus, viewing the totality of the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt, and to the exclusion of any reasonable hypothesis of innocence, that J.L. possessed the marijuana with the specific intent to distribute it. The evidence presented by the State, both direct and circumstantial, clearly supports the trial court’s ruling. Accordingly, the judgment is affirmed.

AFFIRMED.


author: AMY, Judge.

text:
    Rebecca DJORGHI v. Cynthia A. GLASS, M.D., et al.
    No. 09-461.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Marc W. Judice, Judice & Adley, Lafayette, LA, for Defendants/Appellees, Louisiana Medical Mutual Insurance Company Cynthia A. Glass, M.D.
    R. Scott lies, Lafayette, LA, for Plaintiff/Appellant, Rebecca Djorghi.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

I,The plaintiff brought a medical malpractice action against the defendant physician alleging that the defendant’s substandard post-operative infection management caused the plaintiff damages for medical expenses, lost wages, pain and suffering, and disfigurement. The trial court granted summary judgment for the defendants, and the plaintiff appealed. For the following reasons, we affirm.

Factual and Procedural Background

On May 23, 2005, the plaintiff, Rebecca Djorghi, underwent bilateral breast augmentation performed by the defendant, Dr. Cynthia Glass. Following the procedure, the plaintiff developed an infection in her left breast which was treated by intravenous antibiotic therapy at Our Lady of Lourdes hospital. In October 2005, the plaintiff filed a complaint with the Louisiana Patients’ Compensation Fund adverse to the defendant alleging the defendant deviated from the applicable standard of medical care. According to the petition, a medical review panel rendered a unanimous opinion in favor of the defendant finding the defendant did not breach the standard of medical care on August 30, 2006. The plaintiff subsequently filed suit against the defendant and Louisiana Medical Mutual Insurance Company in September 2007. The defendant then propounded interrogatories and requests for production of documents seeking the identity of any experts the plaintiff consulted to testify at trial as to an alleged breach in the standard of care. The record indicates that the plaintiff did not identify any such expert.

On February 29, 2008, the defendant filed a Motion for Summary Judgment. After a November 3, 2008 hearing, the trial court granted the defendant’s Motion for Summary Judgment, dismissing the defendant and the insurer. The plaintiff appeals, arguing that the motion was granted absent sufficient evidence.

| ¡¡Discussion

A motion for summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria as the trial court to determine whether summary judgment is appropriate; whether there is a genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Samaha v.Rau, 07-1726 (La.2/26/08), 977 So.2d 880. A motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(B). Louisiana Code of Civil Procedure Article 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In the present case, the defendant, who is the movant in the Motion for Summary Judgment, does not bear the burden of proof at trial on the issue of whether medical malpractice was committed. Louisiana Revised Statutes 9:2794(A) provides “that a medical malpractice plaintiff must establish the following elements by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached the standard of care; and (3) that there was a causal connection between the breach and the resulting injury.” See Brown v. Riverland Med. Ctr., 06-1449, p. 4 (La.App. 3 Cir. 3/7/07), 952 So.2d 889, 892, writ denied 07-0740 (La.6/1/07), 957 So.2d 177. Expert testimony is generally required for a medical malpractice plaintiff to establish the applicable standard of care and breach of that standard of care. Sam-aha, 977 So.2d 880. Thus, the defendant is only required to point out that there is an absence of factual support for one or more elements essential to the plaintiffs claim to support that there is no genuine issue of material fact. Id.

The plaintiff argues that the defendant did not produce competent evidence to support the Motion for Summary Judgment and shift the burden of proof to the plaintiff. This argument is without merit. Recall that it is the plaintiff who will be required to bear the burden of proof at trial. In this instance, La.Code Civ.P. 966(C)(2) governs, as it provides that the moving party, here the defendant, bears its initial burden on the motion by pointing out an absence of support for an essential element of the adverse party’s case. See Samaha, 977 So.2d 880.

On the record before us, it is clear that the defendant met its initial burden. The plaintiff contends that the motion should have failed because the defendant failed to offer a certified copy of the medical review panel opinion into the record. In Sam-aha, the supreme court found that the medical review panel opinion is “expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit[;]” however, in that case, they found the doctor “bore his burden of proof on the motion for summary judgment in this matter with the support of the interrogatory responses alone.” Samaha, 977 So.2d at 890-891.

|4In this case, the plaintiffs petition confirms that the medical review panel found “no breach of the standard of care on the part of the healthcare provider.” The defendant confirmed this allegation in her petition. As pleadings, these are proper considerations for summary judgment per La.Code Civ.P. art. 967(C)(2). Furthermore, the defendant introduced interrogatories propounded on the plaintiff in October 2007, asking for the identification of expert witnesses. There is no indication in the record that, as of the November 2008 hearing date, the plaintiff had identified an expert.

The record shows that the plaintiff has only offered the deposition testimony of one of the medical review panel members in which he confirms that the medical review panel’s opinion that the defendant did not breach the applicable standard of care remains his opinion. Even this testimony, which offers no support for the plaintiff’s position, was not introduced into evidence and was only attached to its memorandum in opposition to summary judgment. The plaintiff has not offered any expert alleging that the defendant breached the standard of care. Expert testimony is | .^generally required for a medical malpractice plaintiff to establish the applicable standard of care unless the “negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.” Samaha, 977 So.2d at 884. Without sufficient evidence produced by the plaintiff to establish that she will be able to prove the claim at trial, no genuine issue of material fact exists, and the defendant’s Motion for Summary Judgment was properly granted.

DECREE

For the forgoing reasons, the judgment of the trial court granting the defendant’s Motion for Summary Judgment is affirmed. All costs of these proceedings are assessed against the plaintiff-appellant, Rebecca Djorghi.

AFFIRMED.

      . Although the transcript of the hearing indicates that a certified copy of the opinion was, in fact, introduced at the hearing, the copy of the medical review opinion included in the record before this court is the copy introduced when the defendant filed its motion. It appears to be uncertified.

      . Q: Is that medical review panel Opinion still your opinion today, Doctor?
      A: Yes.
      Q: Doctor, do you have an opinion as to whether any third party, that is, not Ms. Djorghi and not Dr. Glass was responsible for the eventual infection that this lady sustained resulting in treatment at Our Lady of Lourdes for an infection after her breast implant?
      A: I do not think a third party was responsible.

      A: You’re asking me if I don't think it was a third party and I don’t think it was Ms. Djorhi? I don't. I think it just happened. I don’t know that you can really say what or who caused it. I don't think it was a surgical site infection occurring at the time of the surgery. I think that would be very unusual for a surgical site infection to display itself three months postoperatively. She could have had — I mean, the implants can get infected from a variety of reasons. I don’t think we really know what happened in this case.


author: GREMILLION, Judge.

text:
    CHL ENTERPRISES, LLC, d/b/a Loewer Lawn & Cycle v. STATE of Louisiana, DEPARTMENT OF REVENUE.
    No. 09-487.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Antonio Charles Ferachi, Baton Rouge, LA, for Defendant/Appellant: State of Louisiana, Department of Revenue.
    John W. Munsterman, Alexandria, LA, for Plaintiff/Appellee: CHL Enterprises, LLC, d/b/a Loewer Lawn & Cycle.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| j This appeal emanates from the district court’s judicial review of the decision of the Louisiana Board of Tax Appeals (BTA) regarding the findings of an audit of Loewer Lawn & Cycle’s records. That audit found that Loewer failed to collect taxes on items that purchasers improperly claimed were exempt from sales tax. Loewer was assessed sales taxes on those items in the amount of $16,237.20 plus interest totaling $10,115.69. Loewer sought judicial review of the BTA assessment. The district court reversed the BTA assessment. This appeal ensued. For the reasons that follow, we affirm the district court.

FACTS

CHL Enterprises, LLC, sells motorcycles, all-terrain vehicles, power equipment and farm implements under the name “Loewer Power Sports and Equipment,” in Alexandria, Louisiana. Among the brands Loewer sells are Kubota tractors. It also offers Toro and Stihl mowers and other lawn care equipment. Loewer and its competitors are aware of the exemption from state sales taxes codified in La. R.S. 47:305.25 for certain types of equipment. Loewer’s customers who feel their ^purchases qualify for one of these exemptions are provided forms prepared by the Louisiana Department of Revenue (LDR) with which to apply for the exemptions. Loewer generally relied upon the forms prepared by LDR in determining whether a transaction qualified for the exemption. Loewer also relies upon the representation of its customer that the implement is being used for the purposes which qualify it for the exemption.

In 2004, LDR conducted an audit of Loewer’s records for the period of January 1, 1999, through May 31, 2002. The auditor, Mr. Ronnie Mesick, determined that Loewer had failed to collect sales taxes on items that Loewer’s purchasers had claimed were exempt. Following his field audit, Mesick and his supervisor, Mr. Mark Bynog, met with Mr. David Brous-sard, Loewer’s Chief Operating Officer, to discuss Mesick’s findings. In particular, Loewer and the auditors disagreed regarding the exempt status of various implements that Loewer maintained were “attachments” to rubber tired farm tractors. They also disagreed over the characterization of some of the transactions as involving “rubber tired farm tractors.” The third area of disagreement concerned the sale of equipment that clearly did not qualify as rubber tired farm tractors, but that did — according to Loewer’s customers— qualify as “other equipment used in agricultural production of food and fiber.”

Loewer continued to maintain that the exemptions were proper, and took the |smatter up with an audit reviewer, Ms. Peggy Parker. Ms. Parker did amend the original “Notice of Assessment” to recognize as exempt transactions amounting to $2,072.78. Thus, LDR maintained, Loewer owed taxes of $16,237.20, plus interest.

Loewer appealed to the BTA. Its appeal was heard on November 13, 2007. At the hearing, Loewer attempted to introduce into the record the original documentation of the sales at issue. The chair of the BTA asked whether a three-page summary prepared by Loewer’s CPA, Mr. Mark McKay, would suffice in lieu of the box of original documents. No objection was voiced. This summary offers only vague descriptions of the items sold, and is the only documentary evidence of the nature of these transactions.

McKay’s summary broke the items down into twelve categories: (1) attachments for which exemption certificates were filed that were purchased with tractors; (2) attachments not purchased with tractors, but for which exemption certificates were filed; (3) tractors for which exemption certificates were filed; (4) equipment for which exemption certificates were filed; (5) attachments for which no exemption certificates were filed; (6) equipment for which no exemption certificates were filed; (7) sales on which taxes were paid; (8) a sale to a state governmental entity; (9) a sale to an out-of-state customer; (10) sales not reviewed by the auditor; (11) sales not exempt that Loewer admittedly owned and subsequently paid taxes on; and (12) an “unknown” transaction. In its ruling, the BTA also referred to these categories, but we find that for purposes of our decision, it is only necessary to group the transactions into two categories: rubber tired farm tractors and attachments, and other equipment.

LASSIGNMENTS OF ERROR

LDR assigns five errors it contends were committed by the trial court:

(1) Reversing the BTA findings regarding the transactions being characterized as lawn and garden tractors, in light of the strict construction given tax exemptions;

(2) Finding the Category 4 and 6 equipment exempt given the legislature’s suspension of the exemption for such equipment used in the production of food and fiber;

(3) Not applying a heightened standard for estoppel against a government agency;

(4) Finding that Loewer relied upon the exemption certificates issued by LDR to its detriment; and,

(5) Finding that the exemption certificate entitled Loewer to the exemptions.

ANALYSIS

The most basic precept of Louisiana law is that the sources of law are legislation and custom. La.Civ.Code art. 1. In interpreting law, courts in Louisiana are to apply clear and unambiguous laws as written, without resort to the legislature’s intent, unless that application leads to absurd consequences. La.Civ.Code art. 9. Because the issue before us is the interpretation of La. R.S. 47:305.25, our analysis must begin with the determination of whether this statute is clear and unambiguous.

Section 305.25(A) establishes the broad proposition that the first $50,000.00 per item of the sale and use of “farm equipment” is exempt from the taxes imposed by La. R.S. 47:302(A), La. R.S. 47:321(A) and La. R.S. 47:331(A). The legislature defines “farm equipment” as: (1) rubber tired farm tractors, cane harvesters, cane loaders, cotton pickers, combines, haybal-ers, and attachments and sprayers; (2) clippers, cultivators, discs, plows, and spreaders; (3) irrigation wells, drives, motors, and equipment; (4) other farm implements and equipment used for agricultural purposes in the production of food and fiber; and (5) on the farm facilities used to dry or store grain or any materials used to construct such on the farm facilities.

LDR argues that the exemption does not apply if the equipment is not being 15sold to a farmer or if the equipment is not being used in the production of food or fiber. This interpretation of the statute does not comport with its unambiguous language. Certain equipment is specifically exempted: rubber tired farm tractors, cane harvesters, cane loaders, cotton pickers, combines, haybalers, clippers, cultivators, discs, plows, spreaders, irrigation wells and accouterments that operate and drive them, attachments, sprayers and farm facilities used to dry or store grain and the materials used to construct same. The statute also contains an omnibus exemption for “other farm implements and equipment used for agricultural purposes in the production of food and fiber.” LDR also argues that items not specifically listed, such as augers or loaders, are not exempted from the tax despite the fact that they may constitute either attachments to rubber tired farm tractors and the like, or that they may qualify as other farm implements and equipment used for agricultural purposes.

Another time-honored precept of statutory interpretation is that the legislature never adopts superfluous language. It is presumed that the legislature’s choice of language was intended to produce a result. ABL Mgt., Inc. v. Board of Sup’rs of Southern Univ., 00-0798 (La.11/28/00), 773 So.2d 131; Wimberly v. Blue, 08-1535 (La.App. 3 Cir. 5/9/09), 11 So.3d 560.

Under LDR’s interpretation of the statute, it would have been unnecessary for the legislature to have specifically defined farm equipment in the manner it did. All that would have been necessary was for the legislature to have exempted equipment used for agricultural purposes in the production of food and fiber. In other words, LDR’s interpretation of the statute effectively writes out of the statute the other four categories of equipment defined as “farm equipment.” The statute is very | flstraightforward: if an item falls within one of the five categories, it is exempt. There appears to be no ambiguity in the statute. No absurd consequences flow from applying the law as written.

LDR does not seem to consistently apply this standard. In the present matter, it allowed exemptions to customers who were quite clearly identified as commercial nurseries, who arguably are not involved in the production of food and fiber. LDR’s reliance on the “food and fiber” test is particularly perplexing in light of its insistence—correctly, as it turns out—that exemptions (3), (4) and (5) were suspended by the legislature for the period Loewer was audited. See La. R.S. 47:302(N) and (O). The “food and fiber” language only involves the omnibus exemption of La. R.S. 47:305.25(A)(4).

LDR counters that tax statutes are different. When determining whether a tax is imposed, courts are to strictly construe the enabling statute in favor of the taxpayer; conversely, exemptions are strictly construed against the taxpayer. Sherwood Forest Country Club v. Litchfield, 08-194 (La.12/19/08), 998 So.2d 56; McNamara v. Central Marine Serv., Inc., 507 So.2d 207 (La.1987). The burden is on the taxpayer to establish unequivocally and affirmatively that he is entitled to the exemption. Archer Daniels Midland Co. v. Parish Sch. Bd. of the Parish of St. Charles, 01-511 (La.11/28/01), 802 So.2d 1270. Because of these standards of proof, a discussion of the district court’s role in reviewing administrative decisions of bodies such as BTA, and this court’s role in reviewing the decisions of the district court, is necessary.

The Louisiana Administrative Procedures Act defines the scope of the district court’s judicial review of administrative decisions in La. R.S. 49:964. Section (F) provides that the district court’s review is confined to the record. Section (G) 17provides:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

Thus, the role of the district court is to review the record prepared at the administrative proceeding, and determine whether the substantial rights of the appellant have been prejudiced in any one of the six ways prescribed. We have previously stated that BTA acts as a trial court, and its findings of fact are to be accepted when supported by substantial evidence. Daigle Bros. Sand & Gravel, Inc. v. Sec. of Dep’t of Revenue and Taxation, 594 So.2d 935 (La.App. 3 Cir.1992). Such findings are subject to review under the manifest error standard. Id. Because BTA acts as a trial court, due deference is to be given to its determinations of credibility of witnesses. La. R.S. 49:964(G)(6).

|sThe standard of review before this court is that applicable to most ap peals, manifest error. Lirette v. City of Baton Rouge, 05-1929 (La.App. 1 Cir. 10/6/06), 945 So.2d 40, writ denied, 06-2659 (La.1/8/07), 948 So.2d 129. That is, the district court’s findings of fact must have no reasonable support in the record, and the finding must be clearly wrong to be reversed. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993).

The district court reviewed the record of the BTA proceedings and found that the witnesses testified that the attachments were attachments for rubber tired farm tractors. BTA held that they constituted lawn and garden tractors and attachments. Our review of the record reveals unequivocal testimony that the items were rubber tired farm tractors and attachments thereto. Nothing supports the notion that these transactions involved lawn and garden tractors, other than Parker’s testimony as to what her auditor thought the transactions involved. We, therefore, find that the district court’s findings that these constituted rubber tired farm tractors and attachments thereto is supported by the record. Those findings are affirmed.

The items that constitute equipment other than rubber tired farm tractors and attachments are problematic. LDR correctly points out that La. R.S. 47:302(N) and (O) suspended by exclusion the exemptions contained in La. R.S. 47:305.25(A)(3), (4) and (5). The district court found that, while the exemptions had been suspended, Loewer relied to its detriment on the forms for applying for the exemptions prepared by LDR. LDR argues that the district court erred in applying detrimental reliance, because a different standard applies to governmental agencies against which such a theory is being urged. When faced with an unambiguous statute, LDR urged at oral I ¡>argument, estoppel is shut down, regardless of what advice a taxpayer is given by the agency.

In support of this argument, LDR directs our attention to the case of Showboat Star Partnership v. Slaughter, 00-1227 (La.4/3/01), 789 So.2d 554. In Showboat Star, the supreme court established a four-pronged test to determine whether a party may avail itself of estoppel against a public agency: (1) unequivocal advice from an unusually authoritative source; (2) reasonable reliance on that advice; (3) extreme harm resulting from the reliance; and (4) gross injustice occurring in the absence of estoppel. An examination of the Showboat Star facts is useful in understanding how courts view these factors.

During the Louisiana gaming industry’s infancy, representatives of LDR (then known as the Louisiana Department of Revenue and Taxation) and the Internal Revenue Service met with representatives of the gaming industry to educate and assist the industry in dealing with taxation issues. One issue discussed was the sales tax exemptions for materials incorporated into gaming boats. LDR determined that operators were entitled to an exemption for the gaming equipment incorporated into the boats. This was communicated to the operators during one of these meetings. Plaintiffs in the Showboat Star case relied upon these representations and upon the exemption certificates published by LDR in claiming exemption for gaming equipment. Two years later, LDR audited plaintiffs’ operators and determined that they owed a sizeable amount of unpaid sales taxes, on the premise that gaming equipment and other items not secured to the decks of the vessels were not exempt from the sales tax. This represented a clear reversal of LDR’s previous position as communicated during the industry meetings and in the exemption certificates.

| ipThe plaintiffs paid the taxes under protest. They then sued to recover the protested payment. The trial court sided with LDR on the issue of whether the equipment was exempted, but determined that it was estopped from collecting the taxes based upon the representatives’ assertions during the industry meetings. LDR appealed the decision, which was affirmed. Showboat Star Partnership v. Slaughter, 98-2882 (La.App. 1 Cir. 2/18/00), 752 So.2d 390. The supreme court granted writs, Showboat Star, 00-1227 (La.6/16/00), 763 So.2d 612.

The supreme court’s analysis began by noting that the exemption did not apply to equipment that was not a component part of the gaming vessel. Therefore, the tax was due by the wording of the statute. It then examined the estoppel claim. The four-step analysis noted above actually came from the first circuit’s opinion. The supreme court simply noted that plaintiffs sustained no extreme harm from the application of the taxes, nor did extreme injustice result. Citing Arizona jurisprudence, the court held that there was no detriment to plaintiffs in being forced to pay taxes they owed.

This brings us to the application of Showboat Star to this case. With regard to the first element, we note that the exemption certificate (Form R-1060) on which Loewer relied was promulgated by LDR. That certificate stated:

Covered by the exemption is the first $50,000.00 of the sales price of each unit of rubber tired farm tractors, cane harvesters, cane loaders, cotton pickers, combines, haybalers, similar commercial farm implements, and attachments to such implements, including sprayers, clippers, discs, plows, and spreaders; and irrigation wells, drivers, motors and equipment. The parts used in the repair or modification of any of the above are not eligible for exemption.

This certificate was employed by LDR through three iterations that are contained in the record, the last of which was revised in 2002, and still mentioned nothing about the legislature’s suspension of exemptions (3), (4) and (5). Indeed, it appears that 1 nLDR did not inform taxpayers of the suspension of those exemptions until 2006.

We find that a document prepared by the governing agency and promulgated for the purpose of use by the general public constitutes an “unusually authoritative source” on which people can rely, as opposed to advice rendered by an agent or employee of the agency. Loewer was relying upon unequivocal advice from an unusually authoritative source in accepting the exemption certificates from customers.

Loewer’s witnesses testified that they did rely upon the exemption certificates. If the advice was from the agency itself, which we have already noted is unusually authoritative, the reliance cannot be said to be unreasonable. LDR drafted and promulgated as an official document the exemption forms on which Loewer relied. Its position now is that Loewer was unreasonable in relying upon that document. That position is absurd as illustrated by the 2006 revision LDR undertook, which clarifies the exemptions that had been suspended.

Having found that Loewer met the first two conditions for establishing estoppel, we next look to whether extreme harm resulted from Loewer’s reliance, and whether gross injustice must result in an absence of estoppel. Loewer is merely the collector of sales taxes, in contrast to the plaintiffs in the Showboat Star case who were themselves the taxpayers. La. R.S. 47:304 places the onus on the dealer to collect the taxes, the failure of which not only can result in the dealer being liable for those taxes but also subject to fine and/or imprisonment. Loewer’s failure to collect the taxes in reasonable reliance on LDR’s flawed exemption certificate resulted in its liability to LDR for those taxes and interest. There is no harm in requiring a business to pay its own taxes. That business is clearly harmed, however, when it is required to pay someone else’s taxes. We find that Loewer has established the third element |12of estoppel under Showboat Star.

Had the exemption certificate properly informed the dealer and purchaser that the “other equipment” was not exempt, Loewer would have collected those taxes at the point of sale. As it is, Loewer is without recourse against the true taxpayer, as Section 304 only allows the merchant to recover from the purchaser when the sales tax is added at the point of sale. See Baton Rouge Press, Inc. v. Andries, 03-808 (La.App. 3 Cir. 2/4/04), 865 So.2d 950, writ denied, 04-592 (La.6/4/04), 876 So.2d 91. Both extreme harm and gross injustice result from an agency officially misconstruing the exemption. Had Loewer been advised properly, the taxes would have been collected from those whom Loewer was charged with collecting. Nor would Loewer be faced with interest on those taxes in excess of 62 percent.

We are unpersuaded by LDR’s argument that an unambiguous statute precludes the application of estoppel. Were that the case, the supreme court’s application of estoppel analysis would be superfluous.

CONCLUSION

LDR interpreted the exemption contained in La. R.S. 47:305.25 in an overly-restrictive manner. The plain wording of the statute exempts rubber tired farm tractors and attachments from state sales taxes. Loewer did not collect sales taxes on rubber tired farm tractors and attachments because those sales were exempt. LDR promulgated an exemption certificate that represented unequivocal advice from the agency itself that equipment used in the production of food and fiber was exempt. 11sLoewer relied to its detriment on that advice. LDR is now estopped from collecting the sales taxes on such equipment.

AFFIRMED.

      . Louisiana Revise Statute 47:305.25 reads in pertinent part:
      A. The tax imposed by R.S. 47:302(A), R.S. 47:321(A), and R.S. 47:331(A) with respect to the sale and use of farm equipment shall apply only to that portion of the sale price in excess of fifty thousand dollars for each item of farm equipment. For the purpose of this Section, ‘‘farm equipment” includes the following:

        (1) Rubber tired farm tractors, cane harvesters, cane loaders, cotton pickers, combines, haybalers, and attachments and sprayers.
      (2) Clippers, cultivators, discs, plows, and spreaders.
      (3) Irrigation wells, drives, motors, and equipment.
      (4) Other farm implements and equipment used for agricultural purposes in the production of food and fiber.
      (5) On the farm facilities used to dry or store grain or any materials used to construct such on the farm facilities.
      B. This exemption applies only to sales and use taxes imposed by the state of Louisiana and does not apply to such taxes authorized and levied by any school board, municipality, or other local taxing authority, except that in the parish of West Carroll, the parish school board may exempt the equipment as provided in this Section from additional sales and use taxes after approval by a majority of the qualified electors of the parish and the police jury may exempt the equipment as provided in this Section from all sales and use taxes which it is presently levying and collecting and shall exempt such equipment from any additional sales and use tax or taxes which it may hereafter levy and collect.

      . This would be more aptly termed judicial estoppel.

      . We do not use this phrase flippantly. That LDR misinterpreted what is and is not exempt is illustrated not only by its exemption certificate but also by its insistence that rubber tired farm tractors are only exempt when sold to “farmers” who are using them in the production of food and fiber, which is, as noted above, an interpretation of the statute wholly unsupported by the wording of La. R.S. 47:305.25.


author: DECUIR, Judge. GREMILLION, Judge,

text:
    Lynette M. MARTIN v. ERMC, II, et al.
    No. 09-491.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Laurence E. Best, Mark E. Best, Best Koeppel, A.P.L.C., New Orleans, LA, for Defendants/Appellants, American Home Assurance Company ERMC, II, L.P.
    Miles A. Matt, Law Offices of Matt & Allen, L.L.C., Lafayette, LA, for Plaintiff/Appellee, Lynette M. Martin.
    Bruce David Beach, Ungarino & Eckert, LLC, Lafayette, LA, for Defendants/Appellants, American Home Assurance Corn-pany, John R. Landry, CBL & Associates Management, Inc., ERMC, II.
    Robin Lynn Jones, Ungarino & Eckert, Lafayette, LA, for Defendants/Appellants, CBL & Associates Management, Inc., ERMC, II, American Home Assurance Company, John R. Landry.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

hOn September 19, 2006, Lynette Martin was struck by a golf cart as she exited the Mall of Acadiana in Lafayette, Louisiana. The golf cart was being operated by John R. Landry in the course and scope of his employment with ERMC, II, L.P., the facility services contractor for the Mall of Acadiana. Martin immediately reported the injuries which included a bruised right arm, soreness on the right side, and a pinched feeling in the neck and low back.

Dr. Robert Franklin diagnosed cervical and lumbar strain, possible underlying spinal pathology, associated headaches, possible median neuropathy at the right wrist, a contusion to the right forearm, and spasms in the upper back. Dr. Franklin prescribed physical therapy and various medications for inflammation, spasms, and pain. Martin has complained of persistent pain, and evidence was introduced suggesting a greatly reduced level of activity as a result of the accident. Dr. Franklin referred Martin to Dr. Michel E. Heard, an orthopedic surgeon.

Dr. Heard ordered steroid injections which offered no lasting relief. Dr. Heard concluded after twenty-three months of treatment that Martin can expect pain on a permanent basis and a potential for surgery in the future.

After a jury trial, the jury found Landry 75% at fault in causing the accident and awarded damages as follows:

Pain and Suffering $50,000.00
Physical Injury $13,000.00
Past Medical $17,134.00
Future Medical $50,000.00
Loss of Enjoyment $40,000.00
12Past Lost Wages $30,000.00
Future Lost Wages $0

The trial court signed the judgment but later on oral motion by the plaintiff amended it to reflect $30,000.00 in past and future lost wages combined. Defendants lodged this appeal.

EXCESSIVE GENERAL DAMAGES

Appellants contend that the jury’s award of general damages in the amount of $103,000.00 is excessive. We disagree.

The Supreme Court has defined the role of the appellate court when faced with a challenge to a general damage award on appeal:

[T]he 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. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
.... The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact.... Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994) (citations omitted). In determining whether an abuse of discretion has been shown, the relevant evidence must be “viewed in the light which most favorable to the prevailing party.” Id. at 1261.

Applying these standards, we must consider whether the jury’s award of $103,000.00 for general damages constitutes an abuse of discretion. In this case the plaintiffs complaints are largely subjective, which means the jury was required to [Sassess the credibility of the witnesses very carefully to determine the extent of the plaintiffs injuries. While we acknowledge that the award is on the high end of such awards, given the particular circumstances of this case, we decline to overturn the considered award of the jury as an abuse of discretion.

LOST WAGES

Appellants’ final two assignments allege the jury’s award of lost wages and the trial court’s amendment to the judgment with regard to lost wages are erroneous.

After reviewing the record, we find that the jury erred in finding that Martin was entitled to $30,000.00 in past lost wages and $0 in future lost wages. When an appellate court finds that the trial court has committed manifest error of fact, the court must ascertain the facts de novo from the record and render a judgment on the merits. Siverd v. Permanent General Ins. Co., 05-973 (La.2/22/06), 922 So.2d 497, unit denied, 05-0967 (La.4/24/06), 926 So.2d 532.

In this case, reviewing the record de novo, we find that the evidence clearly establishes past lost wages in the amount of $8,240.00 for the one year and eight months prior to trial. The jury’s finding that past lost wages were $30,000.00 is not supported by the record. Furthermore, we find that the jury could have found that Martin was entitled to as much as $98,000.00 in future lost wages. The jury erred in finding that future lost wages were $0. After reviewing the record, and particularly the speculative nature of the plaintiffs future work plans, we find that a $80,000.00 award for past and future lost wages combined is appropriate. This is quantitatively the same result reached by the jury and expressed in the amended judgment of the trial court. Accordingly, we affirm the judgment of the trial court on the grounds stated above.

|4We need not discuss the appellant’s remaining assignment regarding the propriety of the trial court’s amendment under Louisiana Code of Civil Procedure Article 1951, as our discussion above renders it moot. However, we note that the trial court’s actions were in conformity with the clear intent of the jury and the findings of this court.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellants.

AFFIRMED.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, Judge,

dissents in part.

I,The defendants herein assigned three errors. The first was that the jury abused its discretion in awarding general damages in the amount of $103,000. I agree with the majority that, while at the “high end,” this was not an abuse of the jury’s discretion.

The second of the defendant’s assignments of error is that the evidence did not support a past lost wages award of $30,000. This is where I must dissent.

The majority finds as follows, “[W]e find that the evidence clearly establishes past loss wages in the amount of $8,240.00 for the one year and eight months prior to trial. The jury’s finding that past lost wages were $30,000.00 is not supported by the record.” I agree. Thus, the jury’s $30,000.00 award for past loss wages should be reduced to $8,240.00.

The majority continues, “Furthermore, we find that the jury could have found that Martin was entitled to as much as $98,000.00 in future lost wages. The jury erred in finding that future lost wages were $0.”

The majority offers this despite the fact the amount of future lost wages was not presented to the court, as an assignment of error. The Court of Appeal will normally only review issues assigned as errors on appeal. Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La.App. 3 Cir. 8/9/95), 661 So.2d 1027, writ denied, 95-2942 (La.3/29/96), 670 So.2d 1238. Of course that restriction can be lifted when the | ¡/‘interest of justice” clearly requires otherwise. Id. and Uniform Rules — Courts of Appeal, Rule 3-1. Here, however, the majority simply assigns its own error and renders its finding.

The third error assigned by the defendants suggests that the trial court erred in converting the jury’s past lost wages award into a single combined award for both past and future lost wages. The trial court does have a mechanism for amending judgments. That mechanism is provided by La.Code Civ.P. art. 1951. However, the trial court can only do so to change “phraseology” and to fix “errors in calculation.” Id. The record is utterly devoid of any evidence that the trial court’s action was to do one of those two things. Thus, the limitations placed on the trial court by La.Code Civ.P. art. 1951 would be paramount in the majority’s reasoning. However, the majority expressly ignores this dispositive code article by simply indicating that it is “moot.” Again, there is no discussion whatsoever of why it is moot. Rather, there is simply the conclusion that the trial court need not concern itself with the limitations of the code when its actions “are in conformity with the clear intent of the jury.” I disagree.

As a matter of procedure, the trial court lacked authority to amend the judgment. In fact, the trial court cannot alter the substance of a judgment in the absence of a timely application for a new trial or an action for annulity. Succession of James v. Lain, 27,639, 27,640 (La.App. 2 Cir. 12/6/95), 665 So.2d 715. Here, Martin filed no such application; indeed, she sought no modification of the judgment.

Secondly, as a matter of substance, nothing in the law allows the trial court to combine past and future lost wages into one single award. The reason that the trial court may not do so is simple: as this court has previously ruled, “[pjast and future lost wages are separate and distinct damage awards.” Fontenot v. Southwestern Offshore Corp., 00-1727 p. 6 (La.App. 3 Cir. 6/6/01), 787 So.2d 588, 592, writ denied, 01-1913 (La.10/12/01), 799 So.2d 504. These areas of damage carry with them two completely different standards of proof. Specifically, in order to recover for past lost wages, the plaintiff must prove her past lost earnings and the length of time absent from work which is attributable to the injury caused by the defendant. Id. See also Mathews v. Dousay, 96-858 (La.App. 3 Cir. 1/15/97), 689 So.2d 503. By contrast, to recover for future loss of earnings, the plaintiff must show medical evidence that indicates with reasonable certainty that a residual disability causally related to the accident in question exists, which results in the plaintiffs inability to earn wages to the same extent she could have earned had she not been injured. Id. An even more striking difference between past and future lost wages is the fact that past lost wages are susceptible of mathematical calculation from the evidence presented at trial, while future lost wages are not. Id.

When one looks at the distinction between past and future lost wages, it becomes clear that it is no more logical or appropriate to merge those two elements together than it would be to merge any two other elements of damages normally found on a verdict form.

Given the clarity of the completed verdict form that forms the basis for the original judgment, the fact that the law provides that past and future lost wages are completely separate and distinct, and that the trial court lacked the procedural authority to amend the original judgment, I would find that the appellants’ third assignment of error regarding the improper “converting” of the original judgment to be well-founded.

The evidence clearly establishes that the proper amount of past lost wages is $8,240.00, as the majority notes. The jury’s award of $30,000.00 is not supported by 14the record. Whether or not the jury’s line item entry of $0 for future lost wages is supported by the record is immaterial, because no party assigned that as error.

As the trial court pointed out, the total damage award was broken down by the verdict form into seven categories. I would affirm the jury’s verdict in six of those seven categories. With regard to past lost wages, I would reduce the award from $30,000.00 to $8,240.00 as every member of this panel agrees is the highest amount supported by the record.


author: PETERS, J.

text:
    Raymond SAVOIE v. Don PAGE.
    No. 09-0415.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Rehearing Denied Dec. 16, 2009.

      Peter F. Caviness, Attorney at Law, Opelousas, LA, for Plaintiff/Appellant, Raymond Savoie.
    D. Reardon Stanford, Hoyt & Stanford, L.L.C., Lafayette, LA, for Defendant/Ap-pellee, Don Page.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

liThe plaintiff, Raymond Savoie, appeals the trial court’s grant of summary judgment in favor of the defendant, Don Page, dismissing his defamation suit against Mr. Page. In his answer to the appeal, Mr. Page seeks an award of statutory attorney fees. For the following reasons, we affirm in part, reverse in part, render in part, and remand to the trial court for further proceedings.

DISCUSSION OF THE RECORD

This dispute arises over the operation of the Shady Pines Hunting Club, Inc. (Hunting Club). The record establishes that both Mr. Savoie and Mr. Page have been members of the Hunting Club for some twenty to thirty years, but that some time in early 2007, they had a disagreement over how the Hunting Club should be run. This disagreement became so personal that Mr. Savoie filed suit against Mr. Page on August 13, 2007, wherein he asserted that Mr. Page had “made false and defamatory statements concerning [Mr. Savoie] to others.”

The issue now before us arises from Mr. Page’s June 9, 2008 special motion to strike pursuant to La.Code Civ.P. art. 971. In that motion, Mr. Page asserted that his statements were true and/or substantially true, that his statements were in furtherance of his right of free speech under the United States and Louisiana constitutions, and that his statements were made in connection with a public issue or an issue of public interest.

After a September 8, 2008 hearing on the motion, the trial court took the issue under advisement. On September 11, 2008, the trial court issued written reasons for judgment wherein it concluded that Mr. Page failed to meet his burden, under La.Code Civ.P. art. 971, of proving that his statement arose from his right of free speech regarding a public issue. Specifically, the trial court found that “[t]he |2statement by the defendant regarding what the plaintiff said, does not pertain to a public issue. These are private statements between private individuals acting in no official capacity and with no public figure or activity involved.” However, the trial court went further to suggest that it had reviewed Mr. Page’s motion as if it were a motion for summary judgment and concluded that Mr. Page was entitled to summary judgment relief. In its judgment, issued October 9, 2008, the trial court dismissed Mr. Savoie’s claims against Mr. Page, with prejudice, casting Mr. Savoie with all costs of the proceedings.

Mr. Savoie now appeals, asserting two assignments of error:

1. The trial Court was correct in denying Mr. Page’s Special Motion to Strike, but erred in granting a Summary Judgment dismissing Mr. Sa-voie’s lawsuit.
2. The trial Court erred in failing to award Mr. Savoie attorney’s fees pursuant to La.Code of Civ. Proc. Art. 971.

Mr. Page has answered the appeal, arguing that the trial court made two errors:

1. Failing to grant the Special Motion to Strike filed on behalf of Defendant-Appellee, particularly including, but not limited to, failing to find Defendant-Appellee satisfied his burden and/or that |sthe cause of action arises from the exercise of Defendant-Appellee’s rights of free speech in connection with a public issue.
2. Failing to award Defendant-Appel-lee reasonable attorney fees and costs[.]

OPINION

Given the manner in which the trial court rendered its opinion, we begin our analysis by considering Mr. Page’s first assignment of error, in which Mr. Page asserts that the trial court erred in not granting his special motion to strike.

Louisiana Code of Civil Procedure Article 971 provides, in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.

The purpose of the special motion to strike “is to encourage continued participation in matters of public significance and to prevent this participation from being chilled through an abuse of judicial process.” Lamz v. Wells, 05-1497, p. 5 (La.App. 1 Cir. 6/9/06), 988 So.2d 792, 796. “In order to succeed under Article 971, the movant must make a prima facie showing that the matter arises from an act in furtherance of his or her right of free speech or the right of petition and in relation to a public issue.” Hunt v. Town of New Llano, 05-1434, p. 2 (La.App. 3 Cir. 5/3/06), 930 So.2d 251, 254, writ denied, 06-1852 (La.10/27/06), 939 So.2d 1283. If the movant is successful in meeting that burden, the plaintiff may still defeat the motion 14to strike if he or she can “demonstrate a probability of success on his or her own claim.” Id.

Thus, the first question before us is whether Mr. Page established that the claim against him arises from some act of his in furtherance of his right of free speech in connection with a public issue. The consideration of a special motion to strike under La.Code Civ.P. art. 971 involves issues of law, and we are required to conduct a de novo review of the trial court’s application of the law to those issues. Gwandiku v. State Farm Mut. Auto Ins. Co., 07-580 (La.App. 3 Cir. 10/31/07), 972 So.2d 334. In considering the first question before us, we note that La.Code Civ.P. art. 971(F)(1) provides:

As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes, but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Mr. Savoie’s complaint in his petition for damages is that on more than one occasion during June and July of 2007, Mr. Page “made false and defamatory | .^statements concerning [him] to others, in an apparent effort to defame [his] character and reputation and to oust him from Shady Pines Hunting Club, Inc.” Specifically, Mr. Sa-voie accused Mr. Page of stating to others that Mr. Savoie had threatened him and others with physical confrontations in the woods during the upcoming hunting seasons. Mr. Savoie does not specify in his pleadings to whom and where Mr. Page made these allegedly defamatory statements, other than to assert that Mr. Page informed members of the Hunting Club of Mr. Savoie’s alleged threats on June 25, 2007. Mr. Page acknowledges that he reported Mr. Savoie’s threats to the board of the Hunting Club and that the threats were discussed during the June 25, 2007 board meeting.

While the report of threats of physical confrontation to law enforcement or another governmental agency would be a public issue, we cannot construe a similar report made only to individual members of and the board of a private hunting club to be a public issue. See Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669. Because we find that Mr. Page did not meet his burden of proving that his statements were made in connection with a public issue, we hold that the trial court did not err in denying Mr. Page’s special motion to strike under La. Code Civ.P. art. 971. Thus, we find no merit in Mr. Page’s first assignment of error.

We next turn to Mr. Savoie’s first assignment of error, wherein he asserts that the trial court erred in granting summary judgment in favor of Mr. Page. We agree.

The issue before the trial court was limited to consideration of the special motion to strike pursuant to La.Code Civ.P. art. 971. Once the trial court determined that Mr. Page’s statements were not made in connection with a public issue, the inquiry under this statute ceased and the trial court was obligated to reject the motion. |c,We recognize that under La.Code Civ.P. art. 865, “[e]very pleading shall be so construed as to do substantial justice.” However, that rule of law applies generally where a particular pleading has been improperly designated and not where the pleading specifically addresses the relief sought. The issues and burdens imposed under La.Code Civ.P. art. 966 (the summary judgment provision) and those imposed under La.Code Civ.P. art. 971 are entirely different. Thus, the trial court erred in converting Mr. Page’s motion to a summary judgment proceeding and rendering judgment in his favor.

Finally, we address Mr. Savoie’s assertion that, because the trial court found Mr. Page’s special motion to strike to be without merit, he is entitled to an award of attorney fees and costs. We agree. Louisiana Code of Civil Procedure Article 971(B) provides that

In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

(Emphasis added.)

Mr. Savoie was the prevailing party on the special motion to strike. Pursuant to La.Code Civ.P. art. 971(B), we award Mr. Savoie $5,000.00 as attorney fees for work performed at trial as well as on appeal. See Vickers v. Interstate Dodge, Inc., 04-109 (La.App. 3 Cir. 9/29/04), 882 So.2d 1236. Additionally, we assess all trial costs and costs on appeal to Mr. Page.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment rejecting the special motion to strike filed by Don Page under La.Code Civ.P. art. 971, reverse the trial court’s judgment granting summary judgment in favor of Don Page, and remand |7the matter to the trial court for further proceedings. We render judgment awarding Raymond Savoie $5,000.00 in attorney fees pursuant to La.Code Civ.P. art. 971(B). We assess all costs of court, both at the trial court and on appeal, to Don Page.

AFFIRMED IN PART, REVERSED IN PART, RENDERED IN PART, AND REMANDED.

      . At the close of the hearing on September 8, 2008, the trial court stated that it was granting Mr. Page’s special motion to strike. However, in its judgment issued October 9, 2008, the trial court dismissed Mr. Savoie’s claims against Mr. Page, with prejudice, casting Mr. Savoie with all costs of the proceedings. We rely on the judgment, not the trial court's oral statements at the close of the hearing; when the oral reasons conflict with the written judgment, it is the written judgment that governs. Marino v. Marino, 576 So.2d 1196 (La.App. 5 Cir. 1991). Thus, despite the trial court's statements at the close of the hearing, it is clear that the trial court did not grant the special motion to strike. The judgment, signed and rendered October 9, 2008, reads as follows:
      This matter comes before the Court on motion filed by the Defendant, Don Page. Considering the law, evidence submitted, and argument of counsel, judgment is rendered herein as follows:
      IT IS ORDERED, ADJUDGED AND DECREED THAT the claims and demands of Plaintiff, Raymond Savoie, against Defendant, Don Page, are hereby dismissed, with prejudice with Plaintiff cast for all costs of these proceedings.
      JUDGMENT READ, RENDERED AND SIGNED this 9th day of October, 2008, in Lafayette, La.


author: PICKETT, Judge.

text:
    In re MEDICAL REVIEW PANEL Jerome Smith.
    No. 09-421.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Appellants, Shirley and Jerome Smith.
    Monica Ann Frois, Deirdre Claire McGlinchey, McGlinchey Stafford, New Orleans, LA, for Appellee, Bayou Healthcare, LLC.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

|,The plaintiffs, Jerome and Shirley Smith, appeal the trial court’s granting of an ex parte motion filed by the defendants dismissing the plaintiffs’ proceeding against the defendants, Bayou Health Care, L.L.C., d/b/a Crossroads Regional Hospital, and Lexington Insurance Company, pending before a medical review panel. We reverse the judgment of the trial court, re-instate the medical review panel proceedings, and remand the case for further action consistent with this opinion.

FACTS

In this case, the plaintiffs, the Smiths, filed a medical review panel claim against the defendants, Crossroads Regional Hospital and Dr. Jay Piland, in April 2008. The following month, the defendants’ attorneys filed a request with the district court to open a judicial proceeding entitled “In Re: Medical Review Panel Jerome Smith,” allegedly for the sole purpose of allowing the defendants to discover evidence to present to the medical review panel. The district court granted the defendants’ request. Thereafter, the defendants sent the plaintiffs a list of 31 interrogatories and a motion for production of documents, requesting the plaintiffs to supply the defendants with 26 different types of documents (doctors’ reports, photographs, medical records, tax returns, etc.). When the plaintiffs failed to provide the requested discovery within 15 days, the defendants filed a motion to compel. The trial court set a hearing on the motion for September 29, 2008. On that day a “consent” judgment was submitted by the defendants continuing the hearing without date. That judgment, which was signed October 7, 2008, included a provision to dismiss the plaintiffs’ medical review panel action if the discovery was not completed by October 10, 2008, just three days hence.

|2On October 15, 2008, the defendants filed an ex parte motion to dismiss the plaintiffs’ medical review panel claim based upon the “consent” judgment previously signed. Accompanying the motion to dismiss was a judgment to dismiss with prejudice. The motion and judgment were hand carried by the defense from the clerk’s office to the court, which signed the judgment just minutes after it was filed. The plaintiffs had no notice of the events of October 15, 2008, until five days after the judgment of dismissal was signed. That judgment is the subject of this appeal.

The issue before this court is whether the trial court abused its discretion in dismissing the plaintiffs’ medical malpractice action, which was still pending before the medical review panel, without a hearing.

LAW AND DISCUSSION

Louisiana > Revised Statutes 40:1299.47, entitled “Medical review panel,” provides in pertinent part as follows:

A. (l)(a) All malpractice claims against health care providers covered by this Part, ..., shall be reviewed by a medical review panel established as hereinafter provided for in this Section.
B. (l)(a)(i) No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.
D. (1) The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties in written form only.
(2) The evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, interrogatories, affidavits and reports of medical experts, and any other form of evidence allowable by the medical review panel.
|a(3) Depositions of the parties and witnesses may be taken prior to the convening of the panel.
(4) Upon request of any party, or upon request of any two panel members, the clerk of any district court shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection and/or copying.
F. The panel shall have the right and duty to request and procure all necessary information. The panel may consult with medical authorities, provided the names of such authorities are submitted to the parties with a synopsis of their opinions and provided further that the parties may then obtain their testimony by deposition. The panel may examine reports of such other health care providers necessary to fully inform itself regarding the issue to be decided. Both parties shall have full access to any material submitted to the panel.
G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.

If the panel finds that the defendant failed to comply with the appropriate standard of care, then it must decide if the conduct complained of was a factor resulting in the damages alleged, and “[i]f such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.” La. R.S. 40:1299.47(G)(4).

As our colleagues of the second circuit stated in Maxwell v. Soileau, 561 So.2d 1378, 1386 (La.App. 2 Cir.), writs denied, 567 So.2d 1123, 1124 (1990):

The sole duty of the medical review panel is to express its expert opinion. No findings are made by the panel as to damages and the findings of the panel are not binding on the litigants. The panel simply renders an expert opinion and does not have the power to adjudicate the rights of any party. Derouen v. Kolb, 397 So.2d 791 (La.1981).

l/Fhus, according to the foregoing statute and jurisprudence, the defendant in a medical malpractice claim pending before a medical review panel is entitled to discover any evidence which will be considered by the panel in making its determinations, i.e. if the defendant breached the standard of care due the plaintiff and the resultant damages, if any, if the standard of care was breached.

In Trahan v. State ex rel. Dept. of Health and Hosp., 04-743, pp. 2-4 (La.App. 3 Cir. 11/10/04), 886 So.2d 1245, 1248-50, a panel of this court reviewed the law applicable to the case sub judice:

Trial courts have broad discretion in ruling on discovery matters that are presented during the course of litigation, including the scope of discovery. Moak v. Ill. Cent. R.R. Co., 93-783 (La.1/14/94), 631 So.2d 401; Ward v. Tenneco Oil Co., 564 So.2d 814 (La.App. 3 Cir.1990). Such discretion will not be disturbed on appeal absent a clear showing of abuse. Moak, 631 So.2d 401.
In Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, the supreme court addressed the propriety of the dismissal of a plaintiffs claims for failure to comply with discovery, observing that “[tjhere is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery” and that “[t]rial judges must have severe sanctions available to deter litigants from flouting discovery orders.” Id. at 203. The court further noted that dismissal is a “draconian” penalty which should only be applied in “extreme circumstances.” Id.
Comparing the Louisiana rule for sanctioning a party who fails to comply with discovery with the Federal rule, the Horton court identified four factors appellate courts should consider when determining whether a trial court’s dismissal of a plaintiffs claims is an abuse of discretion:
(1) whether the -violation was willful or resulted from inability to comply;
(2) whether less drastic sanctions would be effective;
(8) whether the violations prejudiced the opposing party’s trial preparation; and
| .-(4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.
Id. The court further observed that “[t]he record must support ‘a finding that the failure was due to ... wilfulness, bad faith, or fault’ ” before dismissal of a plaintiffs claims is appropriate. Id. quoting Allen v. Smith, 390 So.2d 1300, 1302 (La.1980).
In In re Wiley, 03-793 (La.App. 3 Cir. 12/23/03), 862 So.2d 1243, this court determined that without sworn testimony no assessment of these factors could be made.... Without evidence concerning these factors, we cannot determine whether the trial court’s dismissal of the Trahans’ claims was error.

The record before us reveals that the only time either party appeared before a judge (and then only through counsel) was when the defendants, ex parte, sought to have their motion to dismiss signed. Neither party ever appeared in open court, and there was never any hearing of any kind. Furthermore, the record reveals that the defendants’ interrogatories and request for production of documents sought information in excess of the facts needed by the panel to make its determinations. Additionally, there is nothing in the record which would indicate that the medical review panel was hindered in its proceedings because of plaintiffs’ failure to promptly respond to the defendants’ requests. Finally, we note that it was the defendants who requested the continuance of the motion to compel set for September 29, 2008.

In sum, we find the trial court’s dismissal of the plaintiffs’ pending medical review panel proceeding an abuse of the trial court’s discretion. It appears that this was a situation where there was a possible mis-communication between counsel. There was no bad faith on the part of the plaintiffs. Plaintiffs’ counsel had only three days from service of the notice to respond to a lengthy interrogatory. We find that a less drastic sanction would be appropriate and that the defendants were not prejudiced in the preparation of their defense.

| Accordingly, for the reasons stated, the judgment of trial court is reversed and set aside. The medical review panel is reinstated, and this proceeding is remanded for further proceeding, consistent with this opinion. All costs of this appeal are assessed against the defendants/appellees, Bayou Health Care, L.L.C., d/b/a Crossroads Regional Hospital, and Lexington Insurance Company.

REVERSED AND SET ASIDE; REMANDED; MEDICAL REVIEW PANEL RE-INSTATED.


text:
    Brock DORE v. S & S COATING SPECIALTIES, INC.
    No. 09-455.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant: Brock Dore.
    Jennifer E. Frederiekson, Stemmans & Alley, PLLC, Baton Rouge, LA, for Defendant/Appellee: S & S Coating Specialties, Inc.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

| jThe claimant filed for modification of a judgment denying workers’ compensation benefits. The defendant filed an exception of res judicata pursuant to La. R.S. 23:1310(E). The workers’ compensation judge sustained the defendant’s exception. The claimant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The claimant, Brock Dore, originally filed a disputed claim for compensation against his employer, S & S Coating Specialties, Inc., alleging he injured his neck and shoulder while working for the employer on December 22, 2003. On October 13, 2006, a hearing was held in which the workers’ compensation judge denied benefits related to the claimant’s alleged disc injury. That ruling was affirmed by this court. See S & S Coating Specialties v. Dore, 07-745 (La.App 3 Cir. 12/5/07), 971 So.2d 491. On September 29, 2007, the claimant filed another disputed claim for compensation seeking indemnity and medical benefits for his December 22, 2003, accident. In his second claim, the claimant alleged that his medical condition had deteriorated since the original ruling, thus necessitating disc surgery. He contends he is entitled to a modification of his previous judgment in accordance with La. R.S. 2S:1310.8(B). The defendant filed a peremptory exception of res judicata alleging that La. R.S. 23:1310.8(E) precludes the plaintiff from bringing an action to modify the previous judgment denying the claimant benefits. At the hearing on December 12, 2008, the workers’ compensation judge sustained the defendant’s exception of res judicata. The claimant now appeals.

Discussion

The claimant contends that the workers’ compensation judge erred in sustaining the exception of res judicata based upon its finding that the original | ¡judgment did not constitute an award upon which a modification judgment may be made. The claimant asserts that the workers’ compensation judge originally found that he was disabled for four days and that it recognized that S & S’s payment of medical bills was proper. He contends these findings constitute an award for the purposes of La. R.S. 23:1310.8(B).

Louisiana Revised Statutes 23:1310.8(B) provides:

Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

Louisiana Revised Statutes 23:1310.8(E) provides, however, that “[a] judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal.”

Further, Louisiana’s res judicata statute, La. R.S. 13:4231, reads:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

| ;.The issue here is whether the workers’ compensation judge erred in sustaining S & S’s exception of res judicata based upon a finding that no original award was granted. The workers’ compensation judge’s reasons for ruling reveal specific findings regarding the alleged disability. The record evidences that the workers’ compensation judge made a distinction between two alleged injuries, specifically, injuries allegedly resulting in disc abnormalities and injuries allegedly resulting in muscle strain. With regards to the disc abnormalities, the workers’ compensation judge stated:

Considering the problems with Dore’s credibility, the WCJ is unwilling to give Dore any benefit of the doubt that his is the unique case where the symptoms are on the opposite side of the protrusions. Therefore the WCJ does not relate Dore’s cervical disc abnormalities to his work related accident.

In regards to muscle strain, the workers’ compensation judge stated:

This leads to the question of whether Dore sustained a right-sided muscle strain as a result of the accident. Dr. Dellanger gave Dore a four-day release the day of the accident. The WCJ believes this is a reasonable period of disability. The depositions of the physicians clearly establish that the remainder of Dore’s complaints could just a[sic] likely be as [a] result of his previous problems and general physical condition. The record does not preponderate that Dore sustained any injury beyond the four-day work release as the result of the work-related accident, either directly or by aggravation of the pre-existing condition. The employer has paid the medical bills associated with Dore’s initial emergency room visit, and therefore, no further benefits are owed.

As determined by the workers’ compensation judge, the claimant failed to carry his burden of proof in the original proceeding to establish that a disc abnormality was caused or aggravated by his work-related accident. In a workers’ compensation case, a claimant must prove not only that an accident occurred, but that the accident was causally related to the disability claim. Baker v. Conagra Broiler Co., 93-1230 (La.App. 3 Cir. 5/4/94), 640 So.2d 494, writ denied, 94-1435 (La.9/23/94), 642 So.2d 1289.

In this case, the workers’ compensation judge determined that while the claimant may have exhibited disc abnormalities, the abnormalities were not related to his work accident. This determination was affirmed by this court. See S & S Coating Specialties, 971 So.2d 491. Thus, the workers’ compensation judge made no award of benefits relating to Dore’s alleged disc abnormalities. At the hearing on the peremptory exception, the workers’ compensation judge clarified that the original ruling was not an award, stating:

So I don’t think there is any change of condition as anticipated by the statute and I do find that there was a judgment denying benefits and that the matter is therefore res judicata.

The record supports the determination that no award was initially made for the alleged disability, and, thus, a modification of that ruling to allow a disc-related surgery was barred by res judicata. See La. R.S. 23:1310.8(E).

The claimant argues that this case is similar to Jackson v. Iberia Parish Government, 98-1810 (La.4/16/99), 732 So.2d 517, wherein the supreme court determined that res judicata did not preclude a suit to modify a prior judgment even if that judgment determined that claimant’s disability terminated before trial and the judgment was satisfied. The present case differs from Jackson. In Jackson, the claimant was seeking a modification of the original judgment claiming his condition has worsened, an original condition determined by the hearing officer to constitute a compensable injury. In this case, however, the original ruling found no work-related nexus to any disc abnormality. The language of La. R.S. 23:1310.8(B) clearly requires 15a prior award of compensation before a hearing officer has the authority to modify that award. Matthews v. Farley Indus., 95-1387 (La.2/28/96), 668 So.2d 1144.

This assignment of error lacks merit.

DECREE

The ruling granting defendant’s exception of res judicata is affirmed. Costs of this proceeding are assessed to the claimant-appellant.

AFFIRMED.