author: CHATELAIN , Judge.

text:
    STATE of Louisiana v. Megan E. MORALES -aka- Megan Elizabeth Morales
    17-131
    Court of Appeal of Louisiana, Third Circuit.
    May 17, 2017

      Paula C. Marx, Louisiana Appellate Project, P. 0. Box 80006, Lafayette, LA 70598-0Q06, (337). 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Megan E. Morales
    . Asa A. Skinner, District. Attorney, 30th Judicial District Court, .Terry W. Lam-bright, First Assistant District Attorney, P. O. Box 1188, Leesville, LA 71446-1188, (337) 239-2008, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain, Judges.
   CHATELAIN , Judge.

I,The,defendant, Megan E. Morales, appeals her sentence for identity theft, a violation of La.R,S. 14:67.16, For the following reasons, we affirm the decision of the trial court as amended and remand the case to the trial court with instructions.

PROCEDURAL HISTORY

On December 1,2015, the defendant was charged by a bill of information for identity theft for the use of Jactieline Clark Wilson’s (Wilson) personal information for a Verizon cell phone account valued at $3,739. The defendant entered a guilty plea on September 13, 2016, and a :presentence investigation report was ordered.

On November 16, 2016, the trial court sentenced the defendant to five years at hard labor and fined $1,500 plus court costs. On November 22, 2016, the defendant filed a motion to reconsider sentence which the trial court denied the next day because “no specific facts [were] alleged and [it] gave reasons on record.” The defendant timely appealed.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record,, we find that there are three errors .patent concerning the defendant’s sentence.

First, the trial court ordered the defendant to pay a fine and court costs, or in default of payment, to sejwe an additional twelve months in the-parish jail.' Court-appointed counsel represented the defendant in the- proceedings in the trial court, and the Louisiana Appellate Project represented the defendant on appeal. This has [2beeri found to be presumptive evidence of indigence. State v. Holloway, 10-74 (La. App. 3 Cir. 10/6/10), 47 So.3d 56.

In State v. Major, 03-249, pp. 2-3 (La. App. 3 Cir. 3/2/05), 898 So.2d 548, 550-51 (alteration in original), this court explained:

It is well-settled that “[a]n indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).” State v. Zabaleta, 96-2449, p. 1 (La. 3/7/97), 689 So.2d 1369. The need for incarceration raises an issue when fines or costs are not paid, because La. Code Crim.P. art. 884 requires that, when a trial court imposes a fíne or costs, it must also impose a specified term of imprisonment in the event Defendant defaults on payment of the fine or costs. Because an indigent person may not be incarcerated for failure to pay a fine, the supreme court has vacated “the portion of ... [a] sentence which provides for a jail term in the event of default of payment of a fine ..,.” Zabaleta, 689 So.2d 1369.

Accordingly, we vacate the portion of the defendant’s sentence which required her to serve twelve months in the parish jail in default of payment of the fine and court costs.

Second, because the trial court imposed the fíne and court costs as part of the defendant’s principal sentence, and not as a condition of probation, they are payable immediately. La.Code Crim.P. art. 888. Therefore, we amend the defendant’s sentence deleting the provision allowing for a payment plan for the $1,500 fíne and court costs imposed and instruct the trial court to make an entry in the minutes reflecting these amendments. State v. Bradley, 11-445 (La.App. 3 Cir. 11/2/11), 2011 WL 5191811 (unpublished opinion).

Third, the trial court properly set forth a payment plan for the restitution and fees imposed as conditions of probation, but failed to do so for the $150, to be paid to the. Department of Corrections for the preparation of the presentence investigation report. “When the fines and costs are imposed as a condition of .probation, but the trial court is silent as to the mode of payment or the trial court ^attempts to establish a payment plan, this court has required a specific payment plan be established.” State v. Wagner, 07-127, p. 7 (La. App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208.

Therefore, we remand this case to thé trial court for the establishment of a payment plan for the $150 to be paid to' the Department of Corrections imposed as a condition of probation, noting that either the trial court or the Department of Probation and Parole, with approval of the trial court, may determine the plan.

OPINION

The defendant challenges her sentence as excessive, and she combines the.interrelated assignments of error which are as follows:

I. The sentencing judge failed to individualize this sentence to this offender and offense; the sentencing judge failed to articulate for the record sufficient reasons to justify the sentence and further failed to adequately consider mitigating factors in this case.
II. Megan Morales used a cell phone given to her by her now ex-husband, who activated the phone in his mother’s name without her authorization, Considering Ms. Morales’ limited role and the fact that this “identity theft” was limited to a single Verizon account in the amount of $3,739, the sentence is harsh and excessive to the degree that it is cruel and unusual punishment. •

The applicable penalty in this case is' set forth in La.R.S. 14:67.16(C)(1)(a) and provides:

Whoever commits the crime of identity theft when credit, money, goods, services, or any thing else of value is obtained, possessed, or transferred,,which amounts to a value of one thousand dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than ten thousand dollars, or both.

The maximum sentence the defendant could have received was ten years at hard labor and a $10,000 fine. In the present case, the trial court sentenced the defendant to a mid-range sentence of five years at hard labor, three years suspended with five years of supervised probation, and a fine of $1,500.

14First Assignment of Error

The defendant makes a threefold argument in her brief to this court: (1) the trial court did not individualize her sentence; (2) it failed to articulate sufficient reasons to justify the sentence; and (3) it did not consider mitigating factors.

The State contends portions of the defendant’s assignments of errors are not properly before this court pursuant to La. Code Crim.P. art. 881.1(E). The State explains that in her motion to reconsider sentence, the defendant did not allege the trial court failed to individualize her sentence, and she did not allege the trial court failed to articulate sufficient reasons on the record to justify the sentence.

Louisiana Code of Criminal Procedure Article 881.1(E) provides:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Additionally, in State v. Williams, 15-808, p. 4 (La.App. 3 Cir. 3/2/16), 186 So.3d 333, 336 (citations omitted), this court discussed La.Code Crim.P. art. 881.1(E) and held:

Where a defendant files a motion to reconsider sentence but does not raise a specific issue therein, such as the trial court’s failure to consider the Article 894.1 factors, that issue is not properly before the appellate court for review. However, in the interest of justice, the appellate court may review the defendant’s sentence for bare excessiveness.

In State v. Soriano, 15-1006 (La.App. 3 Cir. 6/1/16), 192 So.3d 899, the court set forth the applicable law for reviewing an excessive sentence claim. This court wrote in pertinent part:

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In State v. Smith, 02-719, p. 4 (La. App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court elaborated on that analysis, stating:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La. 7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, 958.

Id. at 901-02 (alteration in original).

In her motion to reconsider sentence filed in the trial court, the defendant wrote in pertinent part:

The sentence imposed is excessive as applied to this defendant, in violation of Louisiana Constitution Article 1, Section 20, because the sentence imposed is grossly disproportionate to the seriousness of the offense, makes no measurable contribution to acceptable goals of punishment, and is nothing more that [sic] the purposeless imposition of pain and suffering.
3.
The sentence imposed, although within the statutory limits, is a manifest abuse of discretion.
4.
The trial court failed to adequately consider applicable mitigating circumstances in determining the appropriate sentence to be imposed.

No hearing was held. In denying the motion, the trial court wrote in pertinent part: “No specific facts are alleged and Court gave reasons on record.”

Although the defendant did not specifically allege in her motion to reconsider that the trial court failed to individualize her sentence or failed to articulate sufficient reasons on the record to justify the sentence, in the interest of justice, we will review the defendant’s sentence for bare excessiveness.

The defendant argues the trial court erred in imposing such a harsh sentence based upon “its personal feelings about the ‘serious crime’ of identity theft[.]” (Footnote omitted.) The State does not respond to this claim in its brief to this court.

At sentencing, the trial court discussed how the outstanding balance on the Verizon account in Wilson’s name appeared on her credit report and prevented Wilson from getting a loan to buy a house. The trial court also stated that Wilson’s “life has been severely limited and hindered” by the defendant’s actions. The trial court went on to state in pertinent part:

|7[I]t’s not a case where it’s just a onetime shot where there’s economic harm. The economic harm continues today because you’ve ruined her credit, and that can’t be stopped immediately.... [S]he has to build her credit back up slowly. So, the harm is continuing. That’s the problem I have. It wasn’t just one incident, it’s an ongoing thing. She’s suffering for it today, too, and will suffer in the future for however long it takes to get her credit rating back up. And people like you don’t think about that when things—when people get accounts in other people’s names or take credit cards out and things of that kind. They don’t understand that, hey, look, I’m not just taking a credit card and opening it up in their name and—and they may or may not have to pay the bill. If the bill doesn’t get paid, it affects that person’s credit rating for a very, very long time, and it affects their ability to get credit. They can’t operate on credit cards. They can’t operate on loans. They have to operate on cash, whatever they have. Credit is not in their future for a long, long times and that’s the damage that’s caused by things like this.

’ The trial court went on to state that the defendant was going to receive probation, but not immediately “because of the harm that [she has] caused to [Wilson].” The trial court indicated that Wilson'will be “suffering for a long time,” and there is “no reason why [the defendant] -should walk out of this free and not have- to do any time because of the harm [she has] caused.”

The trial court next discussed the defendant’s criminal record, stating that while this was- her “first offense as far as the categories” that she is in, she previously pleaded guilty to the attempted possession of a methamphetamine for which she received two-and-a-half years of-probation. The trial court -stated she. was technically “classified as a first offender[,]” but that she had “active bench warrants out from Natchitoches Parish Sheriffs Office, from Bossier City Court, and from Avoyelles Parish Sheriffs Office.” The trial court indicated that it felt that the defendant was “not coming in with clean hands[,]” and was, therefore, not “a truly first offender^]” When the trial court combined the fact that it did not consider the defendant’s actions

as a pure first offense. ... with the fact that Ms. Wilson has suffered and is continuing to suffer as far as her credit goes ... you know, if you watch T.V., .., some of these programs where, they document 18that, these people’s lives are completely—one day they were doing well, the next day their credit report is a wreck. They can’t get loans. They can’t buy cars on credit. They can’t buy homes. They can’t get a credit card. It’s, you know, whatever your paycheck is, that’s what you got to live on. Credit is not in your life for a long period of time.

The trial court found that- the “damage goes on[,]” and “there was nothing that was done by [Wilson] to motivate or prompt this or cause this to happen.”

Although the trial court explained its view of the negative impact of identity fraud, the trial court’s imposition of the mid-range - sentence is supported, by the factors set forth in Soriano, 192 So.3d 899. Thus, this court finds that the trial court did not abuse its discretion, and the defendant’s assertions that the trial court failed to individualize and articulate sufficient reasons for her sentence lack merit.

However, the defendant properly preserved for appellate review her assertion that the trial court failed to adequately consider mitigating circumstances. In her brief to this court, the defendant specifically claims the trial court-, failed to consider her limited role and that the identity theft was limited to a single occurrence. She explains in pertinent part:

Megan Morales accepted responsibility for her limited role in her ex-husbands’ [sic] theft of his mother’s identifying information used to activate a cell phone with Verizon. Ms. Morales did not activate the phone; she did not know it was stolen, but she admitted she did not ask her now ex-husband about it. He gave the phone to her. to use, and she paid it for four years until she moved and no longer had service. Ms, Morales expressed genuine remorse for her actions, indicating she would never want to hurt [Wilson] and would never have used the phone if she thought it would get her in trouble. ,

(Citations omitted.) The defendant further notes she accepted responsibility for her role, she has a college degree, she was previously employed as a finance manager, and she has one child.

The State argues that the trial court,was “well aware of the facts and circumstances prior to appropriately sentencing this defendant.” The State points to the fact that the trial court considered the presentence investigation report, the 19defendant’s personal and criminal history, and the fact that the defendant expressed remorse at harming Wilson prior to sentencing as further proof of the trial court’s consideration of the mitigating factors in this case. The State concludes in its brief: “A reading of the record clearly indicates the Trial Judge considered mitigating circumstances along with aggravating circumstances, as required by La.C.Cr.P. Art. 894.1 and case law.”

The defendant’s claim that the trial court failed to adequately consider mitigating factors is clearly contradicted by the record. Additionally, the trial court noted in its denial of the motion to reconsider sentence, the defendant offers no facts to support her assigned error. Therefore, we find the defendant’s claim that the trial court failed to adequately consider mitigating factors in this case also lacks merit.

Second Assignment of Error

Next, the defendant asserts her sentence ⅛ excessive. She contends the sentence is shocking and serves no useful purpose but imposition of needfess pain and suffering. The defendant contends she should be given a probated sentence. She points out her risk to society is “minuscule, if any.” She argues the cost to society of incarcerating her is great. The defendant concludes, writing in pertinent part:

Thus, the court’s conclusion that [Wilson’s] credit will continue to suffer as a result of the unauthorized Verizon account is unsupported. The court failed to particularize the sentence to this offender and this offense, and an unconstitutional sentence! has been imposed. A probated sentence in the low range is indicated for this first offender who used a cell phone activated by her ex-husband with his mother’s stolen identifying information. Megan Morales failed to ask her now ex-husband, how he got the phone. The court abused its discretion in harshly sentencing Megan Morales whose role in the offense was veiy limited.

|1flThe State counters that the defendant’s sentence is not excessive. The State argues the defendant received- a significant benefit from the plea, .explaining: “three (3) felony bail jumping charges that exposed her to two (2) years hard labor each were dismissed.”

Although the defendant cites no cases in support of her argument she should have received a lesser sentence, the State draws our attention to two cases in support of the sentence imposed. In State v. Wide, 09-1112 (La.App. 3 Cir. 4/14/10), 35 So.3d 1176, the defendant pleaded guilty to identity theft over $1,000, a violation of La.R.S. 14:67.16. In, exchange, the state agreed to not file a multiple offender bill. At-the sentencing hearing, the defendant admitted he attempted to use the false identification of the victim to withdraw $4,400 from the victim’s savings account. The trial court sentenced him to ten years at hard labor, the maximum sentence. On appeal, the defendant asserted his sentence was excessive. This court affirmed the sentence writing in pertinent part:

When sentencing the defendant in the present case, the trial court observed, after reviewing the presentence investigation report, “I can’t let you stay out on the streets. You get in trouble every time you turn around.” As reflected in the record, the defendant was on parole for manslaughter when he attempted to use a stolen bank card to withdraw $4400 from [the victim’s] bank account. If not for the State’s agreement not to prosecute him as a habitual offender in exchange for his guilty plea, the defendant’s potential sentence would have been imprisonment with or without hard labor for not less than five years and not more than twenty years. La.R.S. 15:529.1(A)(1)(a); La.R.S. 14:67.16(0(1). Accordingly, the defendant substantially benefitted by the State’s agreement not to prosecute him as a habitual offender in exchange for his guilty plea, cutting his potential sentence in half. Under these circumstances, we cannot say the defendant’s sentence is excessive.

Id. at 1178.

The State also cites State v. Gaspard, 09-1516 (La.App. 3 Cir. 10/13/10), 49 So.3d 971, in which this court affirmed ten year sentences for each count of identity theft for a first-time offender. The court noted the multiple offenses resulted in severe economic hardships to the victims.

After considering the factors set forth in Soriano, 192 So.3d 899, this court finds the trial court did not abuse its discretion when it imposed a mid-range sentence. Therefore, the defendant’s assignment of error lacks merit.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction. Additionally, we delete the portion of the defendant’s sentence requiring she serve twelve months in the parish jail in default of payment of the fine and court costs; amend the defendant’s sentence, deleting the provision allowing for a payment plan for the $1,500 fine and court costs; and instruct the trial court to make an entry in the minutes reflecting these amendments. This case is remanded to the trial court for the establishment of a payment plan for the $150 to be paid to the Department of Corrections imposed as a condition of probation, noting that the plan may either be determined by the trial court or by the Department of Probation and Parole with approval by the trial court. The defendant’s sentence is affirmed in all other respects.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

       Honorable David E, Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . We note that Wilson’s name is spelled various ways in the record and the order of her surnames are mixed several times as well, but for consistency this court will refer to her as "Wilson” only.


source: Caselaw Access Project

license: Public Domain

text:
    Kevin BARBER v. Derick JEFFERSON, et al.
    17-72
    Court of Appeal of Louisiana, Third Circuit.
    May 17, 2017

      Elton Herron, 37218 Audubon Park Avenue, Geismar, LA 70734, (504) 723-8782, COUNSEL FOR PLAINTIFF/APPELLANT: Kevin Barber
    Edmond D. Jordan, Jordan Law Group, LLC, P.O. Box 490, Brusly, LA 70719, (225) 590-5957, COUNSEL FOR PLAINTIFF/APPELLANT: Kevin Barber
    Fred Schroeder, Craig E. Frosch, Ronald S. Bryant, Usry, Weeks & Matthews, APLC, 1615 Poydras Street, Suite 1250, New Orleans, LA 70112, (504) 592-4600, COUNSEL FOR DEFENDANT/APPEL-LEE: Randy Maxwell, Sheriff
    Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain, Judges.
   CHATELAIN , Judge.

hThe plaintiff, Kevin Barber (Barber), appeals the trial court’s judgment denying his Motion for Reconsideration of Dismissal for Abandonment. For the following reasons, we affirm the decision of the trial court.

PROCEDURAL HISTORY

On July 23, 2010, Barber was the passenger in a vehicle which was involved in a high-speed chase. The vehicle was driven by Derrick Jefferson (Jefferson) and owned by Ed Woods (Woods). Barber alleges that the chase began when a Con-cordia Parish Sheriffs Office (CPSO) vehicle driven by Officer Dennis Mulvihill (Mulvihill), “for no apparent reason,” began pursuing the vehicle in which he was a passenger.. According to Barber, Jefferson attempted to elude Mulvihill by speeding and driving “in a wild, erratic and unsafe manner.” Barber claimed that he pleaded with Jefferson to let him out of the vehicle. The “chase ended with Jefferson violently crashing the vehicle, causing Barber to be ejected from the vehicle with severe injuries.”

On July 22, 2011, Barber filed a Petition for Damages naming as defendants: Jefferson; Woods; Mulvihill; CPSO Sheriff Randy Maxwell (Sheriff Maxwell); Safeway Insurance Company (Safeway), Woods’s automobile liability insurer; and XYZ Insurance Company (XYZ), CPSO’s liability insurer. Although Barber’s petition requested service of the petition and citation on the defendants, service was not attempted on any of the defendants at that time. On December 21, 2012, Barber’s counsel again requested that service be made on the defendants. Service |aof process on Mulvihill was attempted on that same day at the CPSO but was unsuccessful because he was “[n]o longer employed” there. On January 2, 2013, service was attempted on Sheriff. Maxwell at the CPSO, .but the petition and citation were actually served on Sheriff Kenneth Hed-rick (Sheriff Hedrick) as he was the current CPSO Sheriff. Jefferson was served on December 26, 2012; Safeway and Woods were served the next day. There is no proof of service for XYZ in the record.

On January 15, 2013, counsel for Sheriff Maxwell filed an Exception of Insufficiency of Service of Process, asserting that service on Sheriff Hedrick was invalid, and Sheriff Maxwell would need to “be served via either personal or domiciliary service.” Counsel then requested that the service on Sheriff Maxwell “be declared invalid and stricken from the record.” A Rule to Show Cause was then scheduled for February 11,2013, on the exception.

On January 28, 2013, Sheriff Maxwell filed a Motion to Continue Hearing on the rule to show cause, which the trial court signed’on January 31, 2013, continuing it until February 25, 2013. Barber asserts that both parties discussed the insufficiency of the service of process and concluded that it could be cured by amending his petition to substitute Sheriff Hedrick for Sheriff Maxwell. Both ^parties assert that they then requested the February 25, 2013, hearing be continued without date, which the trial court did.

On March 2, 2016, Sheriff Maxwell filed an Ex Parte Motion to Dismiss Suit on Grounds of Abandonment, alleging in the codally required affidavit that the last step in the prosecution in this case occurred on January 28, 2013; therefore; under La. Code Civ.P. art. 561, the suit was abandoned. On March 14, 2016, the trial court signed the order granting Sheriff Maxwell’s motion to dismiss. Barber’s counsel was served with the order granting the motion to dismiss on March 28, 2016.

On April 20, 2016, Barber filed a Motion for Reconsideration of Dismissal for Abandonment. After Sheriff Maxwell filed an opposition to Barber’s motion to reconsider and after various hearing delays,.Barber’s motion to reconsider was heard before the trial court; only Sheriff Maxwell’s counsel was present in court that day. After confirming service of the reset hearing on Barber’s motion to reconsider, the trial court signed the judgment, dismissing Barber’s motion to reconsider on July 11, 2016, It is from this judgment that Barber timely appeals.

On appeal, Barber raises two assignments of error: (1) the trial court erred when it granted Sheriff Maxwell’s Motion to Dismiss on Grounds of Abandonment because his Exception of Insufficiency of Service of Process was a mere technical form of pleading that violated the language and spirit of La.Code Civ.P. art. 5051, and Louisiana jurisprudence on La. Code Civ.P. art. 561 disfavoring dismissal Lbased on mere technicalities; and (2) the trial court erred when it granted Sheriff Maxwell’s Motion to Dismiss on Grounds of Abandonment, because the continuance of the February 25, 2013 Rule to Show Cause hearing without date was based on an understanding between counsel for both parties that Sheriff Maxwell’s Exception of Insufficiency of Service of Process would be made moot by Barber’s act of simply naming the current Sheriff in his petition, notwithstanding the fact that the current Sheriff of Concordia Parish was the individual upon whom service of process had actually been effectuated.

ABANDONMENT: PROCEDURE FOR APPEAL

This court discussed the appropriate procedure for appealing an ex parte motion to dismiss for abandonment of an action in Scarborough v. Duke, 514 So.2d 489, 490 (La.App. 3 Cir. 1987), where it stated:

The jurisprudence has held that the remedy available to a party suffering such an ex parte dismissal is to motion the trial court to conduct a hearing on a rule to show cause why the judgment of dismissal should not be vacated and set aside. After an adverse judgment is rendered on the rule to show cause, the trial court thus affirming the dismissal, the party suffering dismissal is then to appeal the judgment of the rule to show cause.

In the present case, upon receipt of the notice of the signing of the ex parte motion to dismiss, Barber filed a motion to reconsider, requesting the trial court hold a rule to show cause to reconsider its dismissal of this action on grounds of abandonment. It has been well recognized jur-isprudentially that the Louisiana Code of Civil | ^Procedure does not provide for a motion to reconsider. Succession of Bijeaux v. Broyles, 07-1342 (La.App. 3 Cir. 12/5/07), 970 So.2d 1252; see also Pouncy v. Winn-Dixie La., Inc., 14-496 (La.App. 5 Cir. 9/24/14), 150 So.3d 909; Jennings v. J. Ray McDermott Holdings, Inc., 99-3161 (La.App. 4 Cir. 4/5/00), 760 So.2d 462. Nev ertheless, La.Code Civ.P. art. 865 provides that “[e]very pleading shall be so construed as to do substantial justice.” Louisiana Code of Civil Procedure Article 5051 further provides that “[t]he articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” Moreover, “[t]he caption of the pleading does not control. Rather, the court is obligated to determine the substance of the pleading.” Pouncy, 150 So.3d at 911 (citations omitted).

Considering the liberality accorded pleadings and after carefully scrutinizing the motion in question, we will treat Barber’s timely motion for reconsideration of dismissal as a motion to set aside the trial court’s March 28, 2016 order of dismissal. Therefore, Barber’s appeal from the July 11, 2016 judgment, in which the trial court ultimately affirmed its March 14, 2016 judgment, granting the motion to dismiss, is an appeal of the judgment of the rule to show cause.

OVERVIEW: MOTION TO ABANDON AN ACTION

“An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]” La.Code Civ.P. art. 561(A)(1). An action is abandoned “without formal order,” but if a party files an ex parte motion “which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.” La.Code Civ.P. art. 561(A)(3).

This court set forth the standard of review for abandonment issues in Lyons v. Dohman, 07-53, p. 4 (La.App. 3 Cir. 5/30/07), 958 So.2d 771, 774 (citations omitted) when it held that:

| ,/Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. On the other hand, whether a particular act, if proven, precludes abandonment is a question of law which we review by simply determining whether the trial court’s interpretative decision is correct.

ABANDONMENT ON THE MERITS

In his first assignment of error, Barber argues that the trial court erred in granting the motion to dismiss, because Sheriff Maxwell’s Exception of Insufficiency of Service of Process was a “mere technical form of pleading that violated the language and spirit” of La.Code Civ.P. art. 5051. Barber also argues that the jurisprudence interprets La.Code Civ.P. art. 561 “disfavorfs] dismissal based on mere technicalities.” Barber asserts that the trial court granted the ex parte motion to dismiss based on Sheriff Maxwell’s exception, which was used “as a technical maneuver to avoid answering Plaintiffs petition (particularly in light of the fact that the Sheriff of Concordia Parish was indeed the proper party to be served).” Barber repeatedly asserts in his brief that had Sheriff Maxwell been served when the petition was filed, like he requested, proper service would have been made. It was only this delay in service, according to Barber, that resulted in the wrong sheriff being named in his petition.

Barber cites four cases as support of his argument—all maintaining the proposition that abandonment is a harsh remedy that is not appropriate for mere technicalities, and any doubt should be resolved in favor of finding the case not abandoned. Felo v. Ochsner Med. Ctr.-Westbank, LLC, 15-459 (La.App. 5 Cir. 12/23/15), 182 So.3d 417, writ denied, 16-232 (La. 4/8/16), 191 So.3d 584; Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779; Hidalgo v. Catfish Queen P’ship in Commendam, 06-1531 (La.App. 1 Cir. 5/4/07), 961 So.2d 434; Hutchison v. Seariver Mar., Inc., 09-410 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, writ denied, 09-2216 (La. 12/18/09), 23 So.3d 946.

After carefully reviewing these cases, it is readily apparent that they are distinguishable from the present case. All of this jurisprudence involves instances where the appellate court was called upon to determine whether a party’s actions constituted a step in the prosecution of the case sufficient to defeat a motion for dismissal of an action for abandonment. Unlike those cases, Barber points to no action in the present case that would have constituted a step in the prosecution or defense of this case. To the contrary, the record is clear that three years elapsed with no action having been taken in the prosecution or the defense of the suit. Accordingly, this assignment of error lacks merit.

In his second assignment of error, Barber asserts that the Sheriff of Concordia Parish had been effectively served, and that plaintiffs counsel relied in good faith on an agreement to indefinitely continue the February 25, 2013 Rule to Show Cause on Sheriff Maxwell’s declinatory exception of insufficiency of citation and service of process.

Barber’s reliance on the indefinite continuation of the rule to show cause as a reason that may have prevented the tolling of the three-year abandonment period is misplaced. In Hutchison, 22 So.3d at 994, the appellate court held that “[a] joint motion to continue without date or indefinitely is not considered a step in the prosecution of a case, since by its very nature, an indefinite continuance is not intended to hasten the matter to judgment.” See also Bourg v. Entergy La., L.L.C., 12-829 (La.App. 5 Cir. 4/10/13), 115 So.3d 45, writ denied, 13-1064 (La. 6/21/13), 118 So.3d 421 (holding that a motion to continue a hearing was not a cognizable I «step preventing abandonment because a continuance does not hasten a case toward judgment). For these reasons, we find this assignment of error, too, lacks merit.

DISPOSITION

For the foregoing reasons, we affirm the decision of the trial court which denied Barber’s motion to set aside the trial court’s-order that dismissed this action for abandonment. Costs of this appeal are assessed to Kevin Barber.

AFFIRMED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Although not clear from the record, it appears that Barber and Jefferson were the only ' passengers in the vehicle at. the time of the chase.

      . Barber’s petition requested that service on XYZ be held.

      . The record contains no explanation for the delay. Sheriff Maxwell asserts that the petition was misplaced, and Barber simply refers to the delay as inexplicable.

      . The record neither shows when Sheriff Maxwell retired nor when Sheriff Hedrick assumed office.

      . As provided in La.R,S, 13:5102(B)(1) a sheriff is considered a political subdivision. Further, as provided in La.R.S. 13:5107(B) service of citation and process may be made either on a designated agent, if one is provided; or on the agency head. Because of the posture of the present case, we are not called upon to • assess the validity of the service of process.

      . Even though this curative substitution may have been discussed, the record is void of any pleading to substitute Sheriff Hedrick for Sheriff Maxwell and have the former served with citation and process in accordance with La.R.S. 13;5102(B).

      . There is no order in the record signed by the trial court continuing the hearing without date. Additionally, the parties’ briefs make it seem that the request was made on February 25, 2013, at the hearing, but the minutes from that hearing, if it took place, are not in the record,

      . As stated, in part, in La.Code Civ.P. art. 561(A)(4), "A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff’s service of the order of dismissal.”

      . Louisiana Code of Civil Procedure Article 561(A)(5) states: “An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriff's service of the order of dismissal. Ah appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.” .

      . In Clement v. American Motorists Insurance Co., 98-504, p. 4 (La.App. 3 Cir. 2/3/99), 735 So.2d 670, 672, writ denied, 99-603 (La. 4/23/99), 742 So.2d 886, this court said that "a motion to reconsider is like a motion for new trial.” See also Succession of Bijeaux, 970 So.2d 1252; Pouncy, 150 So.3d 909. Unlike the classification of the denial of a motion for a new trial as an interlocutory judgment, see Dietz v. Superior Oil Co., 13-657 (La.App. 3 Cir. 12/11/13), 129 So.3d 836, La.Code Civ.P. art. 561 classifies the denial of an order seeking to set aside the dismissal of an action for abandonment as a judgment subject to appeal.

      . There is nothing in the record that indicates when Sheriff Hedrick was elected or took office. Accordingly, we cannot determine whether the delay in service is the sole cause of the wrong CPSO sheriff being served.

      . The jurisprudence has addressed the question of whether a cause outside the record may prevent the accrual of the necessary years required for abandonment upon which to base an ex parte dismissal. In Clark v. State Farm Mutual Automobile Insurance Co., 00-3010 (La. 5/15/01), 785 So.2d 779, 784-85 (footnote omitted), the supreme court stated:
      Only two categories of causes outside the record are permitted; namely, those causes falling within the two jurisprudential exceptions to the abandonment rule. Those two exceptions are: (1) a plaintiff-oriented exception, based on contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiffs control; and (2) a defense-oriented exception, based on acknowledgment;, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned.
      With regard to the defense-oriented exception, the conduct or actions of the defendant which are inconsistent with the intent to treat a case as abandoned and which result in the waiver of the right to assert abandonment may occur either before or after the abandonment period has accrued and serves to recommence the abandonment period running anew. See Id. at 787-89. Neither of these jurisprudential exceptions to the abandonment rule is applicable in the present- case.


author: CHEHARDY, C.J.

text:
    Bridget Arlie GREENE v. Mark Gerard LOVISA, The Southern Association of State Departments of Agriculture, Inc., the State of Louisiana and the Department of Agriculture Ivan and Desiree Huerta v. Mark Gerard Lovisa and State of Louisiana Through the Department of Agriculture and Forestry
    NO. 16-CA-660
    16-CA-661
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, BRIDGET ARLIE, GREENE, Robert J. Caluda
    COUNSEL FOR DEFENDANT/APPELLANT, MARK GERARD LOVISA AND THE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF AGRICULTURE AND FORESTRY, Valerie E. Fontenot, Jeffrey M. Landry, Gerald Hampton, Jr., Thomas M. Brahney
    Panel composed of Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst
   CHEHARDY, C.J.

hln this personal injury action arising out of an automobile collision, defendants, the State of Louisiana and Mark Gerard Lovisa, appeal the district court’s March 3, 2016 judgment granting a directed verdict on the issue of liability in favor of plaintiff, Bridget Arlie Greene, and the court’s May 26, 2016 judgment awarding damages. For the reasons that follow, we reverse the May 3, 2016 judgment, vacate the May 25, 2016 judgment, and remand the matter for a new trial.

PROCEDURAL HISTORY

On January 11, 2013, Bridget Arlie Greene was driving on Clearview Parkway in Jefferson Parish when she was rear-ended by a pickup truck owned by the Louisiana Department of Agriculture and Forestry and driven by Mark Gerard Lovi-sa, a department employee. In turn, Ms. Greene’s vehicle rear-ended the vehicle in front of her driven by Ivan Huerta. Both Ms. Greene and Mr. Huerta sustained injuries.

On May 6, 2013, Ms. Greene filed a petition seeking damages for her injuries against Mr. Lovisa and the State of Louisiana through its Department of Agriculture and Forestry (“the State”). On June 3, 2013, Mr. and Mrs. Huerta likewise filed a petition against these defendants seeking damages for injuries sustained as a result of the collision. These two suits were consolidated in October 2013.

The matter proceeded to a jury trial on February 29, 2016. After the close of evidence on March 3, 2016, both Ms. Greene and defendants orally moved for directed verdicts on the issue of liability. After a brief recess, the court granted |2Ms. Greene’s motion and denied defendants’ in open court. Defense counsel objected.

The issue of damages proceeded to the jury. The jury was tasked with resolving two questions. First, “Was the negligence of Mark Gerard Lovisa a proximate cause of Bridget Arlie Greene’s injuries?” The jury answered yes. And second, “[I]n terms of dollars, how much in damages, if any, did Bridget Arlie Greene suffer as a result of this accident?” The jury was instructed to “state what sum of money, if any, would reasonably and fairly compensate Bridget Greene for each category of damages listed below.” The jury made the following findings: Past and future physical pain and suffering, $400,000; past and future mental pain and suffering, $400,000; past medical expenses, $520,875.66; future medical expenses, $310,000; loss of past earnings, $55,828; future earning capacity, $626,642; and loss of enjoyment of life, $200,000. This totaled $2,613,345.66.

In the written judgment that followed on March 24, 2016, the court, pursuant to La. R.S. 13:5106(B)(1), reduced the jury’s award for the three categories of past and future physical pain and suffering, past and future mental pain and suffering, and loss of enjoyment of life from $1,000,000 to the statutory maximum of $500,000. This reduced the total award to $2,013,345.66, which the court adopted as its judgment. The court also ordered the award of future medical expenses ($310,000) to be paid from the Future Medical Care Fund in accordance with La.’ R.S. 39:1533.2, with medical care and related benefits to be paid directly to the provider as they are incurred pursuant to La. R.S. 13:5106(B)(3)(c), And the court assessed costs against defendants, to be determined in accordance with La. R.S. 13:5112(B).

On April 1, 2016, Ms. Greene filed a motion for new trial and/or judgment notwithstanding the verdict, seeking an award of judicial interest from date of judicial demand. That same date, defendants also filed a motion for new trial, | ¡¡arguing the court’s judgment of March 24, 2016 was contrary to the law and evidence. Following a hearing on these motions, the court rendered judgment on May 25, 2016, in which the court granted in part Ms. Greene’s motion for new trial/JNOV to amend the judgment to award judicial interest pursuant to La. R.S. 13:5112, denied defendants’ motion for new trial, and assessed costs in the amount of $21,192.65. Also on May 25, 2016, the court issued its amended judgment in which the court deducted the amount of the award of future medical expenses ($310,000) from the jury’s award, as previously amended, to yield a total award of $1,703,345.66. The court further ordered legal interest to accrue at 6% per annum from the date- service is requested following judicial demand until the judgment is signed, plus legal interest accruing at the rate fixed by La. R.S. 13:4202 from the date of the judgment until paid, plus costs assessed in the amount of $21,192.65.

FACTS

Mark Gerard Lovisa has been employed by the Louisiana Department of Agriculture and Forestry as a weights and measures inspector since 2010. In this position, which requires a lot of travel, Mr. Lovisa estimates that he spends at least half of every day in his state vehicle, a 2007 Dodge Ram 2500 pickup truck. Mr. Lovisa was driving this vehicle when the collision occurred on January 11, 2013; and it was not disputed that he was employed by the State and was acting within the course and scope of his employment at the time of the collision.

According to Mr. Lovisa, the streets were wet from a rainstorm earlier that day. He was driving southbound on Clear-view Parkway in the left lane and was approaching a red light at the intersection with Veterans Boulevard. He “was keeping a good distance” from the Nissan Pathfinder directly in front of him. As the traffic slowed at the red light, the Pathfinder slowed, and so did Mr. Lovisa. At |4the time he began to brake, he approximated he was traveling 35 miles per hour, “maybe less,” and was “maybe five or. six truck lengths,” behind the Pathfinder. When he observed the Pathfinder come to a complete stop, Mr. Lovisa estimated he had decelerated to about 10 or 15 miles per hour. At this moment, Ms, Greene merged into the lane about one-and-a-half to two truck lengths in front of Mr, Lovisa and two to three truck lengths behind the Pathfinder. ,Mr. Lovisa “slammed” on his brakes and skidded into the back of Ms. Greene’s vehicle, a 2012 Suzuki. SX4. He explained “a few seconds” lapsed between her entering the lane and the collision.

Ms. Greene described the collision- differently. She testified that she was driving southbound on Clearview Parkway in the right lane when she realized she needed to get into, the left lane to make a left turn onto Veterans Boulevard. She flipped on her left blinker and looked to her left, where she saw Mr. Lovisa in the left lane. She made eye contact with him, waved at him, and pointed to the left lane, asking if he she could merge into the lane. She saw him nod his head affirmatively. Mr. Lovisa denied that he made eye contact with Ms. Greene or that he gestured for her to merge into his lane. But, according to Ms. Greene, Mr. Lovisa stopped to permit her to merge. She did, traveled three or four blocks, heard the squealing of tires, and was impacted from behind by Mr. Lovisa. This forced her into the rear of Mr. Huerta. She experienced whiplash from both impacts, though the initial one was more forceful. She immediately felt pain in her collarbone from the impact against her seat belt. She also had pain in her 'wrist and neck, and was experiencing shortness of breath. An ambulance was called and transported her to the emergency room at East Jefferson General Hospital. Ms. Greene testified -that Mr. Lovisa apologized for rear-ending her, but Mr. Lovisa denied this,

| i;Mr. Huerta testified that he was stopped at the red light when he heard squealing and a collision before he was impacted from behind, He experienced whiplash and sustained injuries to his neck and lower back,

Ms. Greene’s fiancé, Michael Perdue, arrived at the scene. After checking on her, he spoke with Mr. Lovisa, who described "the collision to him. According to Mr. Perdue, Mr.- Lovisa stated that he waved Ms. Greene into his lane, but that when he slowed to come to a stop at the red light, he skidded on the wet roadway into the rear of her vehicle.

Deputy Zlatko Brujie with the Jefferson Parish Sheriffs Office also responded to the scene of the collision. At the time of trial, Deputy Brujie was retired after a 38-year career in law enforcement, 28 years of which he spent in the traffic division, investigating motor vehicle collisions. Deputy Brujie estimated that he had investigated roughly 16,000 collisions in his career, He was tendered and accepted as an expert in the field of motor vehicle collision investigation.

In his investigation of this scene, Deputy Brujie spoke with each of . the three drivers. His report reflected that Mr. Lovisa advised the officer that “he was southbound on Clearview Pkwy in left lane and as he had observed that traffic ahead of him had suddenly slowed, down he had applied his brakes but his vehicle... slid on wet roadway and before he was able to take any other evasive .action he had crashed into rear of [Ms. Greene’s vehicle].”

Deputy Brujic’s report reflected" that Ms. Greene advised him that “she was southbound on Clearview Pkwy in left lane and as she had started to slow down preparing to stop due to traffic ahead of her she was crashed into rear of her vehicle by [Mr. Lovisa’s vehicle] which impact had pushed her forward into rear of [Mr. Huerta’s] stopped vehicle.” And the deputy’s report reflected that Mr. Huerta advised him that “he was southbound on Clearview Pkwy in left lane ^stopped due to traffic ahead of him when he had heard squealing tires, loud noise and then he was crashed into rear of his vehicle.” .

Deputy Brujic testified that neither Mr. Lovisa nor Ms. Greene informed him that she had merged into the lane immediately before the collision. He further explained that it is not likely for the tires ' of a braking vehicle that is travelling 10 or 15 miles per hour to squeal. The fact that Ms. Greene and Mr. Huerta heard squealing tires suggested to Deputy Brujic that Mr. Lovisa was inattentive, his vehicle was overloaded, or he was travelling at a speed higher than 10 or 15 miles per hour.

Deputy Brujic cited Mr. Lovisa for careless operation of a motor vehicle, a violation of La. R.S. 32:58. On January 30, 2013, the Jefferson Parish District Attorney charged him with this misdemeanor offense in the First Parish Court of Jefferson (Case No. F1937582); and on August 2,2013, Mr. Lovisa entered a plea of guilty to this charge pursuant to La. C.Cr.P. art. 894.

ASSIGNMENTS OF ERROR

On appeal, the State and Mr. Lovisa raise five assignments of error:

(1) The trial court erred in granting Ms. Greene’s motion, for directed verdict on the issue of liability because: (a) a .reasonable person could reach a contrary result and (b) the presumption of fault for a rear-end collision is rebuttable on proof of a lane change immediately preceding the collision.
(2) The trial court erred in not allowing . the jury to hear evidence of Ms. Greene’s prior injury in another automobile crash after Ms. Greene’s counsel opened the door to the admission of this evidence on direct examination by specifically asking Ms. Greene if she had been involved in an automobile accident before the accident sued upon herein.
(3) The trial court erred in allowing Dr. Larry Stokes to testify regarding a change in Ms. Greene’s condition after properly excluding Dr. Stokes’ supplemental report addressing the same subject matter as it was untimely and prejudicial to the defendants’ case.
(4) The trial court, after erroneously allowing Dr. Stokes to testify about a change in Ms. Greene’s condition without subsequent examination, then compounded its error by prohibiting defendants’ expert. Dr. Robert, from testifying regarding his opinion of Ms. Greene’s condition after his examination of her.
b(5) The trial court erred in denying the defendants’ motion for new trial stating that the court’s judgment was not contrary to the law • and evidence at trial, specifically regarding the amounts awarded for future medical expenses.

DISCUSSION

Assignment of Error One

In defendants’ first assignment of error, they argue that the district court erred in granting Ms. Greene’s motion for directed verdict on-the issue of liability.- Because we find merit to this argument, we. pretermit discussion, of, defendants’ remaining assigned errors.

A motion for a directed verdict is a procedural device available in jury trials for purposes of judicial economy. Baudy v. Travelers Indem. Co. of Conn., 13-832 (La. App. 5 Cir. 04/09/14), 140 So.3d 125, 131. The motion should be granted when, after considering all of the evidence in the light and with all reasonable inferences most favorable to the movant’s opponent, it is clear that the facts and inferences point so overwhelmingly in favor of granting the verdict, that reasonable jurors could not arrive at a contrary result. Id. On the other hand, the motion should be denied and the case submitted to the jury, if evidence is produced in opposition to the motion that has such quality and weight that reasonable and fair-minded men, exercising impartial judgment, might reach different conclusions. Id.

Louisiana courts have recognized that conflicting testimony and credibility determinations generally should not be resolved by means of a directed verdict. See Reilly v. Dynamic Expl., Inc., 571 So.2d 140, 144 (La. 1990) (“Questions of credibility should not be resolved by a directed verdict.”); Romano v. Lomasney, 423 So.2d 787, 790 (La. App. 4 Cir. 1982) (“[W]hen witnesses give conflicting testimony, the Trial Judge is prohibited from rendering a directed verdict based on his evaluation of their credibility [. ] ”)

IsFor example, the Louisiana Third Circuit reversed a directed verdict in favor of defendants in a personal injury case arising out of an automobile collision when conflicting testimony had been offered at trial regarding the collision. See Hebert v. BellSouth Telecomms., Inc., 01-00223 (La. App. 3 Cir. 6/6/01), 787 So.2d 614. In its assessment of this conflicting testimony on appeal, the Third Circuit found the evidence supporting the defendants’ version of the collision did not so overwhelmingly point to one conclusion that reasonable jurors could not have reached a verdict in favor of the plaintiff. Id. at 618. Because “reasonable persons could disagree as to whether the defendants should bear any liability,” the court determined “that the trial court erred when it improperly took the duty of determining credibility away from the jury.” Id. at 619.

Similarly, in another automobile collision case, the Third Circuit reversed the district court’s ruling granting a directed verdict in favor of the plaintiff against one of the defendants when conflicting testimony at trial led the appellate court to conclude that reasonable jurors could have reached a contrary result. See Lewis v. State Farm Mut. Auto. Ins., 499 So.2d 656, 658 (La. App. 3 Cir. 1986).

In determining whether or not a motion for a directed verdict should be granted, the trial court has much discretion. Baudy v. Travelers Indem. Co. of Conn., 13-832 (La. App. 5 Cir. 4/09/14), 140 So.3d 125, 131. On appeal, the standard of review is whether, viewing the evidence submitted, reasonable jurors could not reach a contrary result. Id. Moreover, the propriety of a directed verdict must be evaluated in light of the substantive law governing the claims. Id.

Under the substantive law governing this case, liability is allocated pursuant to a pair of rebuttable legal presumptions. In a rear-end collision, there is a well-established presumption that the following motorist breached the standard of care set forth in La. R.S. 32:81 and was negligent. Prejeant v. Gray Ins. Co., 15-87 (La.App. 5 Cir. 9/23/15), 176 So.3d 704, 709. However, this presumption is rebutted [awith proof that the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid. Id. For instance, a driver who changes lanes without first determining that the move can be completed safely and then is struck from the rear by a following car cannot rely on the rear-end collision presumption to shift the burden to the following driver. Id. Indeed, the law places a greater burden of care on a motorist changing lanes than on a motorist proceeding at a lawful rate of speed in a marked lane. Id. When there is a lane change immediately preceding a collision, the burden is on the motorist changing lanes to show that she first ascertained that the movement was being made safely. Id. (citing La. R.S. 32:79(1)).

The two key eyewitnesses to the collision, Mr. Lovisa and Ms. Greene, offered conflicting testimony as to how it occurred. Mr. Lovisa testified that Ms. Greene without warning merged into his lane about one-and-a-half to two truck lengths in front of him. Traveling at approximately 10 to 15 miles per hour, he “slammed” on his brakes and skidded on the wet roadway into the rear of Ms. Greene’s vehicle. He estimated that “a few seconds” lapsed between her entering the lane and the collision.

Ms. Greene described a different version of events. She testified that she used her left blinker and got permission from Mr. Lovisa to merge into the lane ahead of him. Mr. Lovisa denied this. She then traveled three or four blocks before she heard the squealing of tires and was impacted in the rear by Mr. Lovisa. The squealing of tires was also corroborated by the testimony of Mr. Huerta and the police report.

In reconciling these conflicting accounts, the court determined the evidence overwhelmingly supported Ms. Greene’s account such that reasonable jurors could not have reached a contrary result, ie., that Ms. Greene was either fully or | ^comparatively at fault by negligently creating a hazard which Mr. Lovisa could not reasonably avoid. The court offered the following reasons for its conclusion:

Both parties made a motion for a directed verdict. I took the time to review the party’s testimony as it concerns the cross motions. And initially, at first glance, the competing motions would have suggested to me that there was, in fact, facts in dispute.
However, the Court reviewed all of Mr. Lovisa’s testimony that I took pretty good notes on. His own testimony was that there were five to six truck lengths between him and Mr. Huerta’s vehicle at the time that Miss Greene changed lanes. However, it was uncontroverted by all parties and Mr. Huerta and the police officer that at impact Miss Greene’s vehicle was immediately behind Mr. Huerta’s vehicle, which means according to Mr. Lovisa’s testimony, she had to have already traveled several car lengths in Mr. Lovisa’s lane prior to impact.
That being said, the only logical conclusion is that she had, in fact, entered the lane safely. That coupled with Mr. Lovisa’s admission and Mr. Huerta’s testimony about brakes squealing further support that conclusion.
If.. .the Court was to even consider that Miss Greene had cut him off, then Mr. Lovisa would have impacted Miss Greene’s vehicle not directly behind Mr. Huerta’s vehicle, but, in fact, some distance prior to that, which was not at all what Mr. Lovisa’s testimony at trial was. There was no evidence that was presented to the Court that his vehicle was physically incapable of stopping in the truck lengths that he described or at the rate of speed that he described.
And so, therefore, the Court has to treat Mr. Lovisa’s statements and testimony to this Court as judicial admissions against his own interest regarding liability because the facts as he described them could only result in the determination that Miss Greene entered the lane safely for several ear lengths prior to impact, which means she did, in fact, enter the lane safely. And when traffic stopped, Mr. Lovisa did not.
And so, therefore, I am going to grant the motion for directed verdict as to that issue and I am going to deny the defense’s motion for a directed, verdict.

The crux of the court’s reasoning here is that because Mr. Lovisa’s testimony supports the inference that Ms. Greene traveled several car lengths prior to impact, the “only logical conclusion” is that she had entered the lane safely. That certainly is a logical conclusion, but upon our review of the record, we are not convinced it is the only logical conclusion.

Like Hebert and Lewis above, the evidence here includes conflicting testimony, resolution of which requires the evaluation of credibility. And in. In evaluating credibility when confronted with conflicting testimony, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Thus, in resolving the conflict between Ms. Greene’s assertion that she obtained permission from Mr. Lovisa to merge into his lane and Mr. Lovisa’s assertion that she did not, a reasonable person could accept as credible Mr. Lovisa’s testimony and reject Ms. Greene’s, or vice versa.

In turn, these evaluations of credibility greatly influence the factual inferences drawn from the testimony, where the nuances in a witness’s demeanor and tone of voice bear so heavily upon the listener’s understanding and belief in what is said. See Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Here, Ms. Greene’s and Mr. Lovisa’s testimonies are not comprised of hard and fast figures, but consist of approximated ranges of speed, distance, time, and other factors. And from such imprecise variables, reasonable persons may draw a range of different factual inferences.

•Given the variety of reasonable conclusions supported by the array of figures and conflicting testimony offered at trial, we find the evidence leaves considerable room for reasonable persons to disagree as to how the collision occurred. Sorting through this evidence and making determinations of credibility are tasks uniquely suited for the collective judgment of a jury. In this case, though, by granting the directed verdict, the judge substituted her singular judgment for the jury’s and pronounced hers as the “only logical” conclusion supported by the evidence. This usurpation of the jury’s .fact-finding role- is reflected in the court’s reasoning quoted above. In our view, this does not demonstrate that the evidence was so overwhelming that reasonable persons could not reach a contrary result. Rather, this is a quintessential illustration of the assessing, weighing, and inference-drawing that is the process of fact-finding. The only problem is that the. fact finder was not permitted to undertake this process.

|1gAfter considering all of the evidence in the light and with all reasonable inferences most favorable to the State and Mr. Lovir sa, we do not find that the facts and inferences point so overwhelmingly to a verdict in favor of Ms. Greene that reasonable jurors could not have found that Ms. Greene was either fully or comparatively at fault. Accordingly, we conclude that the district court erred in granting Ms. Greene’s motion for a directed verdict.

Ordinarily, when an appellate court finds legal error in a judgment and the record is complete, the practice has been for the appellate court to conduct an independent review and fender judgment on the merits. But- when the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial. Matranga v. Par. Anesthesia of Jefferson, LLC, 14-448 (La.App. 5 Cir. 5/14/15), 170 So.3d 1077, 1099, writ denied, 15-1143 (La. 9/18/15), 178 So.3d 148; Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La. 1980); Gonzales v. Xerox Corporation, 254 La. 182, 320 So.2d 163, 165-66 (1975).

The error we find here is structural, in that the jury, not the court, should have determined the issue of liability, contingent as it is upon resolution of conflicting testimony and- credibility determinations. Because a panel, of three judges is in no better position to evaluate the credibility of witnesses and resolve conflicts in the evidence, .we conclude that rendering judgment on the record does not cure -the structural defect and that this case must be remanded for a new trial.

Motion to Strike

In response to defendants’ reply brief filed in this Court, Ms. Greene moved to strike an issue raised for the first time therein. This Court referred the motion to the merits. In light of our ruling herein, Ms. Greene’s motion to strike is denied as moot.

J^DECREE

For the foregoing reasons, we reverse the district court’s March 3, 2016 judgment granting Bridget Arlie Greene’s motion for a directed verdict on the issue óf liability, vacate the court’s .May 25, 2016 judgment awarding damages, and remand this matter for a new trial. Ms. Greene’s motion to strike is denied as moot.

REVERSED; VACATED; REMANDED

      . Ms. Greene initially named as a defendant The Southern Association of State Departments of Agriculture, but later dismissed this party without prejudice in June 2013.

      . Mrs. Huerta raised a loss of consortium claim.

      . The Huertas dismissed their claims with prejudice on May 19, 2016 after reaching a settlement agreement with defendants.

      . Because we find reversible error on the issue of liability, the medical evidence adduced at trial is not included in this opinion.

      . Ms. Greene and Mr, Perdue subsequently married in 2014.


author: CHAISSON, J.

text:
    Kristina DILLENKOFER, Individually, and on Behalf of her Minor Children, Andrew Bledsoe, Aaron Dillenkoffer, and Giovanni Rodriguez v. MARRERO DAY CARE CENTER, INC. and ABC Insurance Company
    NO. 16-CA-713
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, KRISTINA DILLENKOFFER, ET AL, James M. Garner, Debra J. Fisch-man, Dan A. Robin, Jr.
    COUNSEL FOR DEFENDANT/AP-PELLEE, MARRERO DAY CARE CENTER, INC., ET AL, Candace LeBlanc
    Panel composed of Susan M. Chehardy, Robert A. Chaisson, and Robert M. Murphy
   CHAISSON, J.

|, Kristina Dillenkoffer, individually and on behalf of her minor children, Andrew Bledsoe, Aaron Dillenkoffer, and Giovanni Rodriguez, appeals a judgment from the trial court that granted a motion for summary judgment filed by Marrero Day Care Center, Inc., dismissing her claims with prejudice. For the following reasons, we reverse the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

This case arises from an accident on February 24, 2014, at the Marrero Day Care Center (“the Center”) located in Marrero, Louisiana. On that day, Ms. Dil-lenkoffer went to the day care center to pick up her minor son, Andrew Bledsoe. As Ms. Dillenkoffer was exiting the front of the building, she fell down the entrance stairway to the building. At the time of the fall, Ms. Dillenkoffer was 32 weeks pregnant, carrying her 18-month-old son Aaron on her right hip and talking on her cellular phone. She suffered injuries including a fractured tibia and fibula. Her son, Aaron, suffered a broken clavicle and a bruised head. There were no witnesses to the incident, but help arrived almost immediately afterwards. Ms. Dillenkoffer and her children were taken to the hospital by ambulance.

On October 6, 2014, Ms. Dillenkoffer filed a petition for damages against the Center wherein she alleged that it is responsible under all applicable Louisiana Code articles for the damage caused by its failure to warn of a dangerous condition, allowing a hazardous and dangerous condition to exist on its premises, and allowing for a defective stairway. Her alleged damages include lost earnings, physical pain, and medical expenses, as well as loss of consortium claims for the children. In its answer to the petition, the Center acknowledged that an accident occurred, but denied the existence of any unreasonably dangerous hazard or condition and affirmatively averred that the sole and proximate cause of the accident was Ms. Dillen-koffer’s own negligence by tripping and falling of her own | ^accord, failing to utilize the provided handrail, and walking and talking on a cellular phone while holding a baby.

Following discovery, a motion for summary judgment was filed by the Center in which it argued that, based on the deposition testimony of Ms. Dillenkoffer and the report of her expert witness that examined the stairway, she could not meet her burden of proof. In particular, the Center argued that Ms. Dillenkoffer could not prove that: (1) the property was defective; (2) a defective condition caused the fall; or (3) the Center knew or should have known of an unreasonably dangerous defective condition. Therefore, the Center argued, it was entitled to summary judgment as a matter of law. In opposition to this motion, Ms. Dillenkoffer argued that there were genuine issues of material fact as to whether the front stairs presented numerous unreasonably dangerous conditions that substantially contributed to and in fact caused her to fall.

After a hearing on the motion, the trial court entered a judgment granting the motion for summary judgment and dismissing Ms. Dillenkoffer’s claims with prejudice. This timely appeal follows.

On appeal, Ms. Dillenkoffer argues that the trial court erred in granting the motion for summary judgment because the expert witness report identifies several defects in the stairway that caused Ms. Dillenkoffer’s fall, thereby creating genuine issues of material fact that preclude granting a motion for summary judgment.

DISCUSSION

In Pouncy v. Winn-Dixie La., Inc., 15-189 (La.App. 5 Cir. 10/28/15), 178 So.3d 603, 605, this Court explained the review of the denial or grant of summary judgments as follows:

, A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action.
Is A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show 'that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit; An issue is genuine if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue.
Under La. C.C.P. art 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence- of factual- support for one or more elements essential to the adverse party’s claim, action, or defense. The nonmoving party must then produce factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted.
Appellate courts review a judgment granting or denying a motion for summary judgment de novo, Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. (Internal citations omitted).

Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Melerine v. Jefferson Par. Sch. Bd., 16-469 (La.App. 5 Cir. 2/8/17), 210 So.3d 929. Two theories of liability are available in Louisiana to a plaintiff claiming injury caused by a thing’s condition. Bourquard v. Winn Dixie La., Inc., 04-1150 (La.App. 5 Cir. 3/1/05), 900 So.2d 131, 135. The first theory is negligence, under Articles 2315 and 2316 of the Louisiana Civil Code, and the second theory is strict liability under Article 2317 of the Louisiana Civil Code. Id. Under both theories, the plaintiff has the burden of proving that the thing’s condition presented an unreasonable risk of harm, or was defective, and that this condition was a cause-in-fact of the plaintiffs injuries. Id, Both theories employ a duty-risk analysis on a case by case basis. Id. The plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, that the 14defendant owed a duty of care to the plaintiff, that the requisite duty was breached by the defendant, and that the risk of the harm was within the scope of the protection afforded by the duty breached. Id.

In support of its motion for summary judgment, the Center argued that Ms. Dil-lenkoffer could not meet her evidentiary burden of proving what caused her to fall because during her deposition testimony, she testified that.she was unable to recall exactly what caused her to fall. In response, Ms. Dillenkoffer does not dispute that she is unable to. state exactly what caused her to fall. She contends, however, that trip-and-fall victims are often unaware of the exact mechanics of their falls, and that expert reports can provide sufficient support to establish the existence of a genuine issue of material fact.

In support of her opposition to the motion for summary judgment, Ms. Dillen-koffer introduced a fourteen-page expert report of Mitchell A. Wood, a licensed architect and engineer, that includes photographs of the stairway, notes from a site visit, as well as references to various safety codes and violations thereof. The Center argues that although Mr. Wood identifies various alleged defects in the stairway that potentially caused Ms. Dillenkoffer to fall, he never expressly states an opinion that any of those alleged defects actually caused her to fall. The Center contends that, in the absence of an opinion as to causation, Mr. Wood’s report is- not sufficient to create a genuine issue of material fact as to causation, where Ms. Dillenkof-fer herself is unable to offer any explanation as to the cause of her fall.

Upon a careful reading of Mr. Wood’s report, we disagree with the Center’s assessment regarding the issue of causation. In his report, Mr. Wood makes the following statements: “[m]y opinion is related to causes and elements involved with plaintiff Kristina Dillenkoffer’s fall,” .,. “[o]ur initial judgment of the cause of Ms. Dillen-koffer’s accident appears quite simple,” and “[i]n this report, my | ^opinion as to the cause of the plaintiffs accident is primarily focused on [safety and building code guidelines and violations].” By use of these phrases, it appears that Mr. Wood included in his report an opinion as to the cause of Ms. Dillenkoffer’s fall, and that his opinion as to the cause of her fall was the alleged defects in the stairway as identified in his report. While we recognize that Mr. Wood’s report could benefit from the use of more precise language, we nonetheless conclude that it offers an opinion as to causation sufficient to create a genuine issue of material fact, such that summary judgment was not appropriate in this matter.

Further, even if we were to’ conclude that Mr. Wood’s report does not contain a sufficiently clear opinion as to which specific alleged defect (or which combination of defects that he identifies), caused Ms. Dillenkoffer to initially trip, we would nonetheless reverse the grant of summary judgment in this matter. Mr. Wood’s report identifies the lack of a handrail on the left side of the stairs as a defect in the stairway. While the lack of a handrail on the left side is not relevant to the issue of what caused Ms. Dillenkoffer to initially trip, it is relevant to the issue of whether this alleged defect prevented her from .recovering from, the'initial trip. In her deposition, Ms. Dillenkoffer clearly testified that “I’m trying to prevent myself from falling,” ... “I knew there was nothing on this side [referring to the left side],” and “I knew I was trying to find something to grab.” Although the Center speculates that a handrail on the left side would have made no difference because Ms. Dillenkoffer may have had her cellular phone in her left hand', Ms. Dillenkoffer clearly testified that after her. initial trip, she dropped her cellular phone in order to‘ prevent herself from falling. Therefore, we find that Mr, Wood’s identification of the lack, of a left handrail as a defect, combined with Ms. Dillenkoffer’s testimony regarding her attempt to recover after .her initial trip, is evidence sufficient to raise a genuine issue of material fact as to whether this | ^alleged defect contributed to Ms. Dillenkoffer’s and her son’s injuries,'even though it was not what caused her to initially trip.

Upon our de novo review, we conclude that genuine issues of material fact remain regarding the issue of causation, and that summary judgment was therefore not appropriate in this matter. We therefore reverse the trial court’s grant of summary judgment and remand this matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED


author: PICKETT, Judge.

text:
    Rhonda TIMBERLAKE v. CHRISTUS HEALTH CENTRAL LOUISIANA d/b/a Christus St. Frances Cabrini Hospital
    16-973
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2017
    Rehearing Denied July 18, 2017

      John C. Turnage, Mayer, Smith & Roberts, L.L.P., 1550 Creswell Avenue, Shreveport, LA 71101, (318) 222-2135, COUNSEL FOR DEFENDANT-APPELLANT: Christus Health Central Louisiana d/b/a Christus St. Frances. Cabrini Hospital
    Maria A. Losavio Losavio, Law Office, LLC, 1821 MacArthur Drive, Alexandria, LA 71315, (318) 767-9033, COUNSEL FOR PLAINTIFF-APPELLEE: Rhonda Timberlake
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   PICKETT, Judge.

liAn employer appeals a judgment granting its former employee’s requests for surgery, penalties, and attorney fees for the employer’s failure to approve the requested surgery and to timely pay one week of indemnity benefits. For the following reasons, we affirm in part, reverse in part, and award additional attorney fees for work performed by the employee’s attorney on appeal.

FACTS

On March 30, 2010, Rhonda Timberlake, a registered nurse employed at Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital (Cabrini) in the intensive care unit, claimed that she injured her left wrist and forearm while repositioning a patient. Cabrini is self-insured; it contracts with F. A. Richard & Associates, Inc. (FARA), a third-party administrator, to manage its claims. Previously, the parties appeared before this court to address issues pertaining to supplemental earnings benefits, temporary total disability benefits, penalties, and attorney fees. See Timberlake v. Christus Health Cent. La., 13-166 (La.App. 3 Cir. 10/30/13), 124 So.3d 1201.

Rhonda continued seeking medical treatment for issues associated with her injury, and on May 17, 2016, the parties tried the following issues to the workers’ compensation judge (WCJ) pursuant to an LDOL-WC-1008 filed by Rhonda: 1) did the Medical Director err in denying Rhonda’s request for surgery; 2) was Cabrini’s late payment of indemnity benefits excusable; and 3) was Rhonda entitled to awards for penalties and attorney fees? The WCJ granted Rhonda the relief she sought, and Cabrini filed this appeal.

The following events led Rhonda to file her LDOL-WC-1008. Beginning in March 2011, Rhonda was treated by Dr. Robert Morrow, an orthopedic surgeon, |2who specializes in hands and upper extremities. See Timberlake, 124 So.3d 1201. Dr. Morrow performed three surgeries on Rhonda’s left upper extremity. He retired in 2015, and the record indicates that Rhonda’s, last appointment with him was in March 2015. Rhonda has also been treated by pain management doctors and psychologists for pain-related issues.

On June 8, 2015, Rhonda underwent an independent medical examination (IME) performed by Dr. Gary Porubsky, an orthopedic surgeon, who also specializes in hands and upper extremities. Dr. Porub-sky opined in his report that Rhonda had reached maximum medical improvement and should be able to perform light/sedentary work; however, he recommended that a functional capacity examination be performed to determine exactly what work she could perform.

In October 2015, Rhonda began seeing Dr. Darrell Henderson, a plastic surgeon. Like Drs. Morrow and Porubsky, Dr. Henderson specializes in treating hands and upper extremities. After examining Rhonda, performing x-rays, and reviewing her medical history, Dr. Henderson recommended that she undergo a left radical carpal fusion, Watson distal ulnar re-contouring' and insertion of EBI, which is a partial fusion of the wrist. On October 16, 2015, Dr. Henderson submitted a LDOL-WC-1010, seeking authorization for the partial fusion. Cabrini then ordered a utilization review (UR).

On October 22, 2015, the physician who performed the UR recommended certification of the surgery. In his report, the physician noted that the surgery was not covered in Louisiana’s Medical Treatment Guidelines and then addressed the surgery request by performing an extensive review of medical treatment guidelines adopted by other, states, as contemplated by La.R.S. 23:1203.1(D)(5), that apply to the procedures recommended by Dr. Henderson. The physician also cited pertinent | ^medical review articles that discussed the efficacy of the recommended procedures. That same day, FARA approved the surgery with modifications recommended by the UR physician, and Dr. Henderson was notified of the approval. On October 27, 2015, the UR physician reversed his initial recommendation and recommended that the surgery not be approved. FARA notified Dr. Henderson the surgery was denied. No explanation was given at that time for the reversal.

After being asked for an explanation for his reversal, the UR physician explained that he reversed his opinion and withdrew his initial recommendation for certification of the surgery because he initially considered his review as presenting' a “tie” situation between the treating physician arid the IME physician. He reviewed the medical evidence again and concluded that he had not given enough weight to the IME’s opinion. The physician then stated that the IME’s opinion shifted, his determination from a tie to the conclusion that the weight of the evidence warranted non-certification.

Rhonda filed an LDOL-WC-1009, seeking the Medical Director’s approval of the surgery. Ori February 26, 2016, the Medical Director denied the surgery, stating that the requested surgery required a variance from Medical Treatment Guidelines, but the variance was not addressed by Dr. Henderson’s request and that no medical literature regarding the surgery was included with the request. Rhonda filed an LDOL-WC-1008.

Following his review of the matter, the WCJ issued thorough Reasons for Ruling in which he concluded that the Medical Director erred in denying Dr. Henderson’s request for approval of his recommended surgery. The WCJ specifically addressed the Medical Director’s finding that documentation required for the requested variance was not included with Dr. Henderson’s request, noting pthat the cited documentation and medical literature was outlined and discussed in the UR physician’s initial report. Furthermore, the WCJ observed that although the UR physician stated he did not give proper weight to Dr. Porubsky’s opinion, he did not explain why his previous assessment under the cited guidelines and medical literature was incorrect or irrational. The WCJ also noted that Dr. Porubsky’s IME of Rhonda occurred before Dr. Henderson recommended surgery; therefore, his report did not address the recommended surgery.

Addressing Rhonda’s claim for -penalties and attorney fees for Cabrini’s failure to approve the recommended surgery, the WCJ observed that Cabrini made no showing that the disability guidelines cited by the UR physician do not meet the five criteria outlined in La.R.S. 23:1203.1(D) for the Louisiana Treatment Schedule and concluded that Cabrini had no “reasonable basis” for denying the surgery because it “failed in [its] duty to properly investigate” the request for surgery and “discounted competent medical evidence from the UR [physician].” He awarded a $2,000.00 penalty for Cabrini’s failure to approve the surgery and $9,000.00 in attorney fees for Rhonda’s prosecution of her claim.

Rhonda also alleged that Cabrini failed to pay timely her indemnity benefits owed for the week of September 30 through October 6, 2015, when it issued her one check for the period September 30 through October 13, 2015, and that it terminated her benefits. FARA’s claims representative handling this matter countered Rhonda’s claim that her benefits were terminated, and a joint stipulation resolved the issue.

Cabrini contends-that Rhonda’s indemnity benefits were paid bi-weekly, that the check representing the benefits in question was received three days after it was due, that the maximum penalty due Rhonda was $150.00 which represents the |fi$50.00 per day penalty, provided in La.R.S. 23:1201(F), and that it included payment of the penalty with the late check.

The WCJ reviewed the documentation submitted in conjunction with the claim and determined that the payment at issue was six days late, not three days late. He awarded a penalty of $50.00 per day for six days for the late payment and $500.00 in attorney fees.

ASSIGNMENTS OF ERROR

Cabrini filed a suspensive appeal and assigns two errors with the WCJ’s judgment:

1. The Trial Court erred in finding that there was clear and convincing medical evidence to show that Rhonda [ ] was entitled to the surgery recommended by Dr. Darrell Henderson;
2, The Trial Court erred in finding that [it] was arbitrary and capricious and .awarding [Rhonda] penalties, attorney[ ] fees[,] and costs.

DISCUSSION

Appellate courts review workers’ compensation matters pursuant to- the manifest error or clearly .wrong standard of review. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992), This standard of review precludes an appellate court from setting aside a trial court’s finding of fact in the absence of a manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, DOTD, 617 So.2d 880 (La.1993). In applying the manifest error-clearly wrong standard, the appellate court must determine not whether-the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id.

| Surgery

The Medical Director’s decision can only be overturned when clear and convincing evidence shows that the decision was not in accordance with the provisions of La. R.S. 23:1203.1. La.R.S. 23:1203.1(K). To prove a matter by clear and convincing evidence requires a showing that “the existence of the disputed fact is highly probable; that is, much more probable than its nonexistence.” Johnson v. Temple-Inland, 95-948, p. 7 (La.App. 3 Cir. 1/31/96), 670 So.2d 388, 392, writ denied, 96-544 (La. 4/19/96), 671 So.2d 919.

The UR physician performed his review of the request for surgery based on Rhonda’s complaints and her medical records. He noted that “Louisiana Guidelines do not address this request[,]” then addressed the issue of a variance as contemplated by La.R.S. 23:1203.1(1). The UR physician identified and discussed other disability guidelines that address the procedures Dr. Henderson requested approval to perform. He also cited and discussed current medical literature on the procedures. The UR physician determined that the requested surgery fell within the parameters of other treatment guidelines and current medical literature. He made no indication in his review that he gave more weight to Dr. Henderson’s opinion or Dr. Porubsky’s opinion.

The Medical Director denied Dr. Henderson’s request for approval of his proposed surgery, stating the request “require[d] a variance” from the medical treatment guidelines, but “current medical literature [did not] - accompany the request.” Based on the extensive findings set forth in the UR, the WCJ concluded that the Medical Director’s reason for denying Dr. Henderson’s request did not exist when he denied the request. Having carefully reviewed the record, we cannot say the WCJ committed manifest error in concluding that Rhonda proved by clear Land convincing evidence that the Medical Director’s denial of her request for surgery was unsubstantiated.

Cabrini argues the WCJ erred because the UR physician reversed his initial opinion to recommend denial of the surgery request after reconsidering the medical evidence and because the IME opinion was court ordered; therefore, it must be given more weight than Dr. Henderson’s opinion. The WCJ correctly noted that, an IME is not ordered by the court but by the director of the Office of Workers’ Compensation. La.R.S. 23:1123. As argued by Cabrini, an IME’s medical opinions and conclusions constitute “prima facie evidence of the facts therein,” La.R.S. 23:1123, and jurisprudence has held that an IME’s opinion must be given “significant weight.” Kinard v. New Iberia Wastewater Treatment Facility, 12-1393, p. 3 (La.App. 3 Cir. 4/3/13), 116 So.3d 5, 8 (quoting Richardson v. Lil' River Harvesting, 09-1090, p. 2 (La.App. 3 Cir. 3/10/10), 33 So.3d 418, 419). Nonetheless, an IME’s opinions are “not conclusive, and - the [WCJ] must evaluate all of the evidence presented in making a decision as to a claimant’s medical condition.” Id. For these reasons, we find no error with the WCJ’s reversal of the Medical Director’s denial of Rhonda’s surgery.

We do, however, find error with the WCJ’s assessment of a $2,000.00 penalty and award of $9,000.00 in attorney fees to Rhonda. Cabrini argues the WCJ erred in awarding Rhonda a penalty and attorney fees for its failure to approve the surgery. It contends that it’s denial of the surgery request was not arbitrary and capricious because the UR physician ultimately recommended non-certification of the request, the Medical Director denied the request, and the IME physician had determined Rhonda did not need additional treatment.

IsRhonda counters that the WCJ did not err in awarding attorney fees, urging that the UR physician is Cabrini’s agent and that Cabrini had him change his opinion. The only evidence on this issue is the UR physician’s explanation letter in which he states that he was asked to reconsider his recommendation and that when he reviewed the evidence again, he concluded that he had not given sufficient weight to the IME opinion which changed his opinion. There is no evidence that the UR physician changed his opinion at the instruction of Cabrini as suggested by Rhonda’s counsel.

The WCJ found no valid basis for the UR physician’s change of opinion because the physician did not discuss Dr. Henderson’s findings or Dr. Porubsky’s opinions and did not identify any substantive reasons for his change of opinion with regard to the evidence-based guidelines and medical literature that he cited in his initial report. The WCJ also found it important that Dr. Porubsky’s IME and opinions pre-dated Rhonda’s appointment with Dr. Henderson; therefore, Dr. Porub-sky had not considered Dr. Henderson’s recommendation and reasons when issuing his opinion.

When considering a claim for penalties and attorney fees, “a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890. If the employer presents a “serious defense” in “good faith,” penalties and attorney fees should not be awarded. Savoy v. Cecil Perry Improvement, Co., 96-889, p. 17 (La.App. 3 Cir. 2/5/97), 691 So.2d 692, 702.

| sHaving considered the record, we find the WCJ committed manifest error in awarding Rhonda penalties and attorney fees for Cabrini’s refusal to approve the surgery. Cabrini’s refusal was based on the UR physician’s amended recommendation, the Medical Director’s denial of Rhonda’s request to approve the surgery, and Dr. Porubsky’s IME report. As noted above, there is no evidence the UR physician changed his opinion at Cabrini’s direction. Furthermore, while Dr. Porub-sky’s opinion pre-dated Dr. Henderson’s examination of Rhonda and recommendation for the requested surgery, it was not the sole basis for Cabrini’s refusal. Accordingly, we reverse the WCJ’s awards of a $2,000.00 penalty and $9,000.00 in attorney fees.

Indemnity Beneñts

Cabrini next argues that the WCJ erred in finding that Rhonda’s indemnity benefits for the period September 23 through 29, 2015, were paid late and that no valid excuse existed for that delay. Cabrini argues that Rhonda’s indemnity benefits were paid bi-weekly and that the check at issue was only three days late.

The WCJ reviewed FARA’s check register and found Rhonda’s indemnity benefits were paid weekly, except for the week in question. His review shows that on October 12, 2015, one check for the indemnity benefits owed for the week of September 30 through October 6, 2015 and the week of October 7 through 13, 2015, was issued to Rhonda. The check register also shows that Rhonda’s benefits were paid weekly, not bi-weekly. For these reasons, we find no manifest error, with the WCJ’s conclusion that Rhonda’s indemnity benefits for the week of September 30 through October 6, 2015, were paid six days late, not three days late, as Cabrini argues. Accordingly, the WCJ did not err in finding that the benefits were paid late and that Cabrini’s payment of a $150.00 penalty to Rhonda with the | míate benefits was insufficient. For these reasons, the WCJ was also correct in awarding Rhonda an additional penalty' of $150.00 and $500.00 in attorney fees for Cabrini’s failure to timely pay her indemnity benefits for the week of September 30 through October 6,2015.

Attorney Fees on Appeal

Rhonda answered Cabrini’s appeal, seeking an award of additional attorney fees for worked performed by her attorney defending the WCJ’s judgment on appeal. We award $5,500.00 for the work performed by Rhonda’s attorney on appeal with regard to the WCJ’s findings that Rhonda is entitled to have surgery and Oabrini’s late payment of indemnity benefits,

DISPOSITION

The judgment in favor of Rhonda Tim-berlake against Christus Health Central Louisiana d/b/a 'Christus St. Frances 'Cabrini Hospital is affirmed with regard to the surgery request and the award of an additional $150.00 penalty and $500.00 in attorney fees associated with the late payment of indemnity benefits. The WCJ’s awards of a $2,000.00 penalty and $9,000.00 in attorney fees for Cabrini’s refusal to approve the surgery request are reversed. Attorney fees in the amount of $5,500.00 are awarded to Rhonda Timberlake for work performed on appeal by her attorney. All costs totaling $1,030.25 are assessed against Christus Health Central Louisiana d/b/a Christus St. Frances.Cabrini.Hospital.

AFFIRMED IN PART;. REVERSED IN PART; AND RENDERED.