author: HOLDRIDGE, J.

text:
    STATE of Louisiana v. Carlos CESPEDES
    2017 KA 1087
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: DECEMBER 29, 2017
    M. Bofill Duhé, District Attorney, Walter J. Senette, Jr., Assistant District Attorney, Franklin, LA, Attorneys for Appellee, State of Louisiana
    Cynthia K. Meyer, Louisiana Appellate Project, New Orleans, LA, Attorney for Defendant/Appellant, Carlos Cespedes
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
   HOLDRIDGE, J.

The defendant, Carlos Cespedes, was charged by bill of information with two counts of attempted second degree murder, violations of Louisiana Revised Statutes 14:30.1 and 14:27 (counts one and two); unauthorized entry of an inhabited dwelling, a violation of Louisiana Revised Statutes 14:62.3 (count three); theft of a motor vehicle valued at $1,500 or more, a violation of Louisiana Revised Statutes 14:67.26C(1) (prior to revision by 2017 La. Acts No. 281, § 1) (count four); and violation of a protective order, a violation of Louisiana Revised Statutes 14:79A(1)(a) (count five). The defendant entered a plea of not guilty to all counts. After a preliminary hearing, the district court found no probable cause for count five. Following a jury trial, the defendant was found guilty as charged on counts one, three, and four, and guilty of the responsive offense of attempted manslaughter, a violation of Louisiana Revised Statutes 14:31 and 14:27, on count two. The district court sentenced the defendant to thirty years at hard labor without the benefit of parole, probation, or suspension of sentence on count one; ten years at hard labor on count two; five years at hard labor on count three; and eight years at hard labor on count four. The court ordered that the sentences run concurrently. The defendant filed a motion to reconsider sentences, which the district court denied. The defendant now appeals, alleging three assignments of error. For the following reasons, we affirm the defendant's convictions and sentences.

FACTS

On November 14, 2014, around 8:30 p.m., Morgan City Police Department Officer Jobe Gagliano responded to a report of shots being fired outside an apartment on Seventh Street in Morgan City. Upon arrival, Officer Gagliano spoke with the victims, Josefina Segura and Subraj Singh, who were terrified. Segura advised that the offender was her ex-boyfriend, the defendant. Singh advised that after the incident, the defendant fled the scene in Singh's vehicle, without his consent, which he had left running in the driveway.

Morgan City Police Department Detective Travis Trigg also responded to the scene and learned that the defendant entered Segura's residence without authorization from Segura while she was not home. When Segura and Singh, who was her boss, arrived home, they found the defendant in the kitchen. The defendant pointed a gun at Segura and then at Singh. He fired a shot in Singh's direction, and Segura and Singh ran out of the apartment. The defendant ran behind them and fired a second shot at Singh. He then followed Segura, cornered her, and fired a third shot before fleeing in Singh's vehicle. Detectives took photographs of the apartment and a pair of shoes found in the kitchen of the apartment, which Segura identified as belonging to the defendant. Detectives also collected a handwritten note from the kitchen table, which was written in Spanish and signed by the defendant. The note was subsequently translated:

Josefina, forgive me for entering the house the way I did. But the truth is I would have died of cold out there in the streets. I know you don't want to see me, but please don't accuse me for this. You're the only thing I had and I don't have a place to go. I'm waiting for you to understand and accept what my situation is. Without money, no house, without a place to go. The police, they don't leave me alone. They don't give me peace. And I don't have money to pay. I don't know what to do now. In my life I had everything in you, and I lost it. And I lost everything in the blink of an eye. I'm asking you to understand my situation. You, more than anyone, understand. I wanting that you don't take charges against me, or put charges against me. Thank you and forgive me. For everything. Heart.

Segura advised that she did not grant the defendant access to the apartment and that, other than her landlord, she was the only person with a key to the apartment at the time. Detectives located a broken window in the bathroom, which they believed was the defendant's point of entrance. According to Segura, prior to that night, she did not have any broken windows and the door was not damaged. They also observed marks of forced entry on the front door. Marks consistent with a bullet ricocheting were found on a neighbor's vehicle in the carport area of the neighbor's house. Also found in that area were bullet fragments consistent with a .22 caliber weapon.

Singh testified that he owns a gas station in Morgan City where Segura is employed. On the date of the incident, he drove Segura home from work because she did not have transportation. He explained that he left his vehicle running and walked Segura to her door in order to make sure the apartment was safe. When Segura walked into her kitchen, she said, "Carlos, what you doing here?" Singh testified that he then saw the defendant point a gun, which he described as a silver revolver, at her. When the defendant saw Singh, he shot at him. Singh immediately ran downstairs, ran across the street, and called the police. He heard another shot being fired as he ran downstairs and a third once he was across the street. Singh explained that the defendant left the scene in his vehicle, which he described as a 2009 Honda Accord valued at approximately $14,000. The following morning, the defendant called the gas station and cursed at Singh and told him that he was "not finished yet."

Segura also testified at trial and explained that the defendant was her ex-boyfriend. Prior to the date of the incident, she had not been home for four days. She had been staying in a hotel near the gas station because she was afraid to go home after ending the relationship with the defendant approximately six months prior. She explained that she had always lived at the apartment alone and that only she and her landlord had a key. Upon arriving home, she opened her door with her key and began to walk inside. When she walked inside of the kitchen and turned on the light, she saw the defendant who was pointing a silver revolver at her. The defendant fired his gun at Singh, and she and Singh ran downstairs. She heard a second shot as she ran. Remembering that her neighbors had a surveillance system, she attempted to stay in front of the cameras so "at least somebody [was] going to know who killed [her]." Segura explained that the defendant ran after Singh, but returned to her and fired his gun at her twice as she covered her face with her purse. She then threw her purse on the gun and jumped on the defendant's back. The defendant then ran away from her and left in Singh's vehicle. After the incident, the defendant called the gas station and told her that he was going to "finish what he start[ed]." She provided officers with a list of all of the telephone numbers from which the defendant had called her.

Amico Aloisio testified that he lived next to Segura's apartment, and they shared a driveway. On the night of the incident, he heard a vehicle pull up. Shortly thereafter, he heard gunshots. He watched video from his surveillance cameras and noticed that someone who appeared to be Segura and a man were underneath the carport and appeared to be having an argument. He heard another gunshot and then saw the man get inside of a vehicle and back out of the driveway. A video of the surveillance was played for the jury.

Detectives obtained the defendant's cellular telephone number and records in order to locate him. The records corroborated Singh's statement that after the incident, the defendant called him at his place of business. The defendant was ultimately located in New Orleans and taken into custody.

MOTION FOR MISTRIAL

In his first assignment of error, the defendant argues that the district court erred in denying his request for a mistrial. Specifically, he complains that Detective Trigg's testimony that law enforcement obtained the defendant's cellular telephone number "from Ms. Segura or from prior police records" was prejudicial when coupled with the fact that references were made during trial to harassing telephone calls made by the defendant.

During the questioning of Detective Trigg, the following colloquy occurred between the witness and the prosecutor:

Q: After you conducted the collection of evidence and taking photographs at the scene, what did you do next, Detective?
A: After processing the scene, I proceeded to the Morgan City Police Department to file an exigent circumstances request for [the defendant's] cell phone number.
Q: And was that cell phone number provided to you at some point?
A: Yes.
Q: From whom?
A: I believe it came from Ms. Segura or from prior police records.

Defense counsel asked to approach the bench and stated, "I'd like to object to the last statement the officer made about prior probation records. The defendant has not taken the stand. He has already said it. I'm going to have to object to the statement when the officer said prior police records." The State responded, "He said he either got it from Ms. Segura or prior police records. He didn't say prior arrest record. I don't think it was a question that was posed and I don't think in the way it was answered it rises to the level-I'm definitely not going anymore down that trail, Your Honor." The following colloquy then occurred:

[District Court]: You're making an objection?
[Defense Counsel]: Yes, sir. It's out now. You have to admonish the jury or something, Judge.
[District Court]: What?
[Defense Counsel]: I ask that said that [sic] you do an admonishment to the jury or something. He said it. It's out.
[The State]: All he said is prior police records. I think admonishing him-

At that point, the colloquy at the bench concluded, and the court retired the jury. Defense counsel made the following objection for the record:

Judge, for the record, I'd like to object to the comment the officer made concerning the defendant's prior police records. I think that the defendant has a right to remain silent. He can't be compelled to testify. By the officer making that statement, what he's actually doing is he's violating that right, Your Honor.

The district court responded, "Well, I don't know if he's violated the right of the defendant not to testify. What he has done is interject that the defendant may have been arrested previously." The State cautioned that an admonishment may bring more attention to the Detective's response and have an adverse effect on the defense. Defense counsel responded, "The problem with that is we don't know what's in the mind of the jurors. We have no clue what they're thinking. They heard. It's there. That would be fine for us as lawyers and officers of the court, but we don't know what they think. They're lay people." The court asked defense counsel, "So, you're just objecting? You want an admonishment? What do you want?" Defense counsel then moved for a mistrial.

In ruling, the court noted that Detective Trigg did not make reference to another crime or arrest, just that he had the defendant's number in police records. The court denied the motion for mistrial and offered to admonish the jury. When asked what type of admonishment he wanted, defense counsel responded, "I don't think I want anything at all." The jury then returned to the courtroom. When testimony resumed after the ruling on the motion, Detective Trigg explained that he obtained the defendant's cell phone number in order to locate him by tracking his global positioning system location.

Louisiana Code of Criminal Procedure article 771 provides, in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
* * *
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial under the provisions of Article 771 is at the discretion of the district court and should be granted only where prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. Moreover, unsolicited and unresponsive testimony is not chargeable against the State to provide a ground for mandatory reversal of a conviction. Nor is a statement chargeable to the State solely because it was in direct response to questioning by the prosecutor. Although a prosecutor might have more precisely formulated the question that provoked the disputed response, where the remark is not deliberately obtained by the prosecutor to prejudice the rights of the defendant, it is not the basis for a mistrial. See State v. Anderson, 2000-1737 (La. App. 1st Cir. 3/28/01), 784 So.2d 666, 682, writ denied, 2001-1558 (La. 4/19/02), 813 So.2d 421 ; State v. Tran, 98-2812 (La. App. 1st Cir. 11/5/99), 743 So.2d 1275, 1280, writ denied, 99-3380 (La. 5/26/00), 762 So.2d 1101.

A reference by a police officer to prior contact with a defendant is not a reference to other crimes allegedly committed by the defendant. See State v. Washington, 430 So.2d 641, 648 (La. 1983) ; State v. Taylor, 430 So.2d 686, 694 (La. App. 2nd Cir.), writ denied, 438 So.2d 575 (La. 1983). In the instant case, the district court correctly concluded that the reference by Detective Trigg to obtaining the defendant's cellular telephone numbers from either Segura or "prior police records" was not a reference to other crimes committed by or arrests of the defendant. Thus, the district court correctly denied the motion for mistrial. Moreover, in the absence of a request for an admonition by defense counsel, the court did not err in not admonishing the jury to disregard the ambiguous remark of Detective Trigg. See State v. Jack, 554 So.2d 1292, 1296 (La. App. 1st Cir. 1989), writ denied, 560 So.2d 20 (La. 1990). Accordingly, this assignment of error is without merit.

JURY REQUEST

In his second assignment of error, the defendant argues that the district court erred in refusing to allow the jurors to review the surveillance video that had been shown at trial when requested during their deliberations. Specifically, the defendant contends that because the verdicts on counts one and two were non-unanimous, there is "a very real possibility that had the trial judge not misstated the law to the jurors and allowed the jurors to view the videotape, other jurors could have voted that the State failed to carry their burden of proving that [the defendant] had specific intent to kill when he fired the gun."

After the jury retired for deliberations, it requested to see the surveillance video footage that was played during trial. The district court instructed the jury that the law prohibited them from viewing the exhibit.

Louisiana Code of Criminal Procedure article 793 provides:

A. Except as provided in Paragraph B of this Article, a juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.
B. A juror shall be permitted to take notes when agreement to granting such permission has been made between the defendant and the state in open court but not within the presence of the jury. The court shall provide the needed writing implements. Jurors may, but need not, take notes and such notes may be used during the jury's deliberations but shall not be preserved for review on appeal. The trial judge shall ensure the confidentiality of the notes during the course of trial and the jury's deliberation and shall cause the notes to be destroyed immediately upon return of the verdict.
C. The lack of consent by either the defendant or the state to allow a juror to take notes during a trial shall not be communicated to the jury.

Under the plain language of Article 793, a videotape/audiotape recording of a crime as it occurs is neither written evidence nor testimony. See State v. Adams, 550 So.2d 595, 599 (La. 1989) ("The general reason for the prohibition is a fear that jurors might give undue weight to the limited portion of the verbal testimony thus brought into the room with them.") (internal quotation marks and citation omitted) (emphasis added). Nor is the tape a recorded confession or inculpatory statement made by the defendant after the commission of a crime. See Adams, 550 So.2d at 598-99 (conviction of first degree murder reversed because jury reviewed audiotape and transcript of the defendant's confession during deliberations). See State v. Brooks, 2001-0785 (La. 1/14/03), 838 So.2d 725, 727-28 (per curiam).

In State v. Davis, 92-1623 (La. 5/23/94), 637 So.2d 1012, 1025, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994), the Louisiana Supreme Court stated:

A videotape, which is like a photograph, is neither testimony nor written evidence and is not excluded by [ Article 793 ]. A photograph is a reproduction of a physical object or scene. It is not "written"
evidence of "testimony" within the meaning of [ Article 793 ], which prohibits the use of written material during deliberations. Hence, a jury's request to see a videotape after it retired to deliberate ... is not an abuse of the court's statutory discretion." See State v. Overton, 337 So.2d 1058 (La. 1976).

Because viewing video surveillance is not precluded by Article 793, the district court should have allowed the jury to review the video per its request. However, the defendant failed to object to the district court's ruling. The failure to raise a contemporaneous objection to a ruling of the court constitutes a waiver of that objection. La. Code of Crim. P. art. 841 ; State v. Calvert, 2007-1910 (La. App. 1st Cir. 6/6/08), 2008 WL 2332323, *3 (unpublished), writ denied, 2008-1602 (La. 4/17/09), 6 So.3d 784. Moreover, the defendant has failed to show he suffered any prejudice from the district court's ruling because the jury had the opportunity to view the surveillance video during the trial. We have carefully reviewed the surveillance video and do not find that it contains any exculpatory evidence. The video clearly shows the offender, identified by both victims as the defendant, pointing a gun at each of the victims as they attempted to run from him. The video is also corroborative of the testimony of Segura, Singh, and Aloisio. Accordingly, this assignment of error is without merit.

NON-UNANIMOUS JURY VERDICTS

In his last assignment of error, the defendant argues that the verdicts in counts one and two should be declared invalid because they were non-unanimous. Specifically, the defendant contends that the non-unanimous verdicts on those two counts violated his rights to due process and equal protection.

It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the district court below. A party must raise the unconstitutionality in the district court, the unconstitutionality must be specially pleaded, and the grounds outlining the basis of unconstitutionality must be particularized. See State v. Hatton, 2007-2377 (La. 7/1/08), 985 So.2d 709, 718-19. In the instant case, the defendant failed to raise his challenge to Louisiana Constitution Article I, § 17A in the district court. Accordingly, the issue is not properly before this court.

Nevertheless, we address this oft-repeated issue to press this court's position that this argument regarding non-unanimous verdicts is untenable. The crime of attempted second degree murder is punishable by imprisonment at hard labor for not less than ten nor more than fifty years without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:30.1 & 14:27. Louisiana Constitution article I, § 17A and Louisiana Code of Criminal Procedure article 782A provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 2 406 U.S. 404, 413-14, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La. 1982) ; State v. Shanks, 97-1885 (La. App. 1st Cir. 6/29/98), 715 So.2d 157, 164-65.

The defendant suggests that since subsequent legal developments call Apodaca into serious question, the non-unanimous verdicts on counts one and two were in violation of his due process and equal protection rights. In support of this assertion, the defendant cites the decision of McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The defendant's reliance on this jurisprudence is misplaced. The McDonald Court, while holding that the Second Amendment right to keep and bear arms is fully applicable to the states through the Fourteenth Amendment, did nothing to alter the well-established jurisprudence holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials. See McDonald, 561 U.S. at 765-66, 130 S.Ct. at 3035 n. 14. The McDonald Court specifically stated that, although the Sixth Amendment requires unanimous jury verdicts in federal criminal trials, it does not require unanimous jury verdicts in state criminal trials. See McDonald, 561 U.S. at 765-66, 130 S.Ct. at 3035 n. 14 ; and State v. Bishop, 2010-1840 (La. App. 1st Cir. 6/10/11), 68 So.3d 1197, 1205, writ denied, 2011-1530 (La. 12/16/11), 76 So.3d 1203. The defendant's argument has been repeatedly rejected by this court. See State v. Smith, 2006-0820 (La. App. 1st Cir. 12/28/06), 952 So.2d 1, 15-16, writ denied, 2007-0211 (La. 9/28/07), 964 So.2d 352 ; and State v. Caples, 2005-2517 (La. App. 1st Cir. 6/9/06), 938 So.2d 147, 156-57, writ denied, 2006-2466 (La. 4/27/07), 955 So.2d 684.

Thus, while Apodaca was a plurality rather than a majority decision, the United States Supreme Court, as well as other courts, has cited or discussed the opinion various times since its issuance and, on each of these occasions, it is apparent that its holding as to non-unanimous jury verdicts represents well-settled law. State v. Bertrand, 2008-2215 (La. 3/17/09), 6 So.3d 738, 742. Thus, Louisiana Constitution article I, § 17A and Louisiana Code of Criminal Procedure article 782A are not unconstitutional and, therefore, not in violation of the defendant's constitutional rights. See State v. Hammond, 2012-1559 (La. App. 1st Cir. 3/25/13), 115 So.3d 513, 514-15, writ denied, 2013-0887 (La. 11/8/13), 125 So.3d 442, cert. denied, --- U.S. ----, 134 S.Ct. 1939, 188 L.Ed.2d 965 (2014).

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the defendant's convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      The victim named in count one is Josefina Segura. The victim named in count two is Subraj Singh.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF BATON ROUGE and Parish of East Baton Rouge v. R.G. CLAITOR'S REALTY, et al
    2017 CA 0827
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered DECEMBER 29, 2017
    Leo J. D'Aubin, A.P Manint, William R. Aaron, Maimuna Magee, Baton Rouge, LA, Attorneys for Plaintiff/Appellee City of Baton Rouge/Parish of East Baton Rouge
    Daniel A. Claitor, Lindsay C. Rabalais, Baton Rouge, LA, Attorneys for Defendant/Appellants R.G. Claitor's Realty
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
   HOLDRIDGE, J.

In this expropriation proceeding, R.G. Claitor's Realty (Claitor's) appeals a judgment denying its motion to set aside the dismissal of its demand for additional compensation against The City of Baton Rouge and Parish of East Baton Rouge (City/Parish). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 29, 2009, the City/Parish filed a lawsuit against Claitor's seeking to expropriate a parcel of property owned by Claitor's in East Baton Rouge Parish. The City/Parish deposited the sum of $247,625.00 as just compensation for the property into the registry of the court. An order of expropriation was entered on November 3, 2009, entitling Claitor's to withdraw $247,625.00 from the registry of the court subject to certain conditions. On December 18, 2009, Claitor's filed an answer to the petition in which it alleged that the amount paid into the registry of the court by the City/Parish did not represent just compensation for the full extent of its loss as the result of the expropriation.

On January 6, 2010, Claitor's filed a petition to withdraw funds in the registry of the court. On that day, the trial court issued an order requiring the City/Parish to pay Claitor's $247,625.00 without prejudice to either parties' rights to contest and litigate the issue of just compensation. On January 26, 2010, Claitor's filed a partial release authorizing the Baton Rouge Parish Clerk of Court to cancel any mortgages on the subject property. On January 29, 2010, a mortgage certificate was filed into the record in the proceedings.

On August 1, 2016, the City/Parish filed a motion for dismissal for abandonment under La. R.S. 48:452.1. Louisiana Revised Statute 48:452.1 provides for a specific period of abandonment of an additional compensation claim in an expropriation proceeding. It states: "An owner's claim for an increase in the compensation is perfected when he timely files his answer...and is thereafter abandoned when he fails to take any step in the prosecution of that claim for a period of three years." In support of its motion, the City/Parish presented an affidavit of its attorney who attested that to his knowledge and belief, no step had been timely taken in the prosecution of the claim for an increase in compensation for a period of three years after the answer had been filed.

On August 4, 2016, the trial court entered a final judgment fixing just compensation in the amount deposited in the registry of the court, awarding that sum to Claitor's as just compensation, and dismissing, with prejudice, any claim for any increase in compensation. Claitor's filed a motion to set aside the dismissal on September 22, 2016, asserting that its attorney, Daniel Claitor, is an elected member of the Louisiana Senate and that his participation in legislative sessions suspended the accumulation of time for the purposes of abandonment of its claim for additional compensation pursuant to La. R.S. 13:4163. Louisiana Revised Statute 13:4163 sets forth the procedural requirements for invoking a peremptory legislative continuance or extension of various proceedings, including civil cases. Claitor's submitted that it propounded discovery to the City/Parish on November 6, 2012, and since that time, there had been a total of 336 days during which the legislative sessions were convened, in all of which Senator Claitor participated. According to Claitor's calculations, its demand for additional compensation would not be abandoned until three years had passed from its November 6, 2012 discovery request, plus the 336 days in which time was suspended under La. R.S. 13:4163 for the days Senator Claitor was in legislative session. Under Claitor's calculation, the matter would not be deemed abandoned until October 7, 2016. Therefore, Claitor's urged, the City/Parish's motion for a dismissal for abandonment, filed prior to that date on August 1, 2016, was premature. Claitor's supplemented its motion to set aside the dismissal with a judgment of another division of the 19th Judicial District Court dated December 12, 2016. In that case, a different trial judge granted the motion of the Claitor Children to set aside a judgment of dismissal on the basis of abandonment rendered in favor of the City/Parish upon finding that La. R.S. 13:4163 applied to the running of time for purposes of abandonment and that the matter had not been abandonment at the time of the court's signing of the judgment of abandonment.

On January 31, 2017, the trial court entered a "partial final judgment" denying Claitor's motion to set aside the dismissal of its claim and certifying the judgment as a final judgment. Claitor's appealed the January 31, 2017 judgment, asserting that the accrual of time for abandonment pursuant to La. R.S. 48:452.1 was suspended during the state's legislative sessions, in which its attorney participated, pursuant to La. R.S. 13:4163.

DISCUSSION

The version of Louisiana Revised Statute 13:4163 in effect at the time this matter was pending provided, in pertinent part:

A. (1) A member of the legislature...shall have peremptory grounds for continuance or extension of a criminal case, civil case, or administrative proceeding as provided below. The continuance or extension shall be sought by written motion specifically alleging these grounds.
* * *
B. The peremptory grounds for continuance or extension is available to and for the benefit of a member or legislative employee and may only be asserted or waived by a member or employee.
C. (1) Such peremptory grounds are available for the continuance of any type of proceeding and the extension of any type of deadline pertaining to a criminal case, civil case, or administrative proceeding, if the presence, participation, or involvement of a member or employee is required in any capacity, including any pretrial or post-trial legal proceeding, during:
(a) Any time between fifteen days prior to the original call to order and fifteen days following the adjournment sine die of any session of the legislature.
(b) Any time between fifteen days prior to convening and fifteen days following adjournment sine die of any constitutional convention.
(c) Any time other than those provided in Subparagraph (a) or (b) of this Paragraph when such person is engaged in activities, including travel, in connection with or ordered by: (i) the legislature; (ii) any legislative committee or subcommittee appointed by the president of the Senate or the speaker of the House of Representatives; (iii) any committee or commission appointed by the governor or other person authorized to make such appointments; or (iv) any constitutional convention or commission.
(2) Such peremptory grounds are available to any member or employee enrolled as counsel of record when his participation is required. The availability of other counsel to assume the duties or responsibilities of counsel invoking the continuance or extension does not negate the peremptory nature of his motion.
D. A motion for legislative continuance or extension filed by a legislative employee shall be accompanied by an affidavit, verifying such employment or service, executed by the presiding officer or the clerk or secretary of the respective house.
E. (1)(a) If the grounds for a legislative continuance or extension are founded upon the convening of a regular legislative session or a constitutional convention, the motion for legislative continuance or extension shall be timely if filed no later than five calendar days prior to the hearing or proceeding to be continued.
(b) If the grounds for a legislative continuance or extension are founded upon any provision of Subparagraph (C)(1)(c) of this Section or upon the issuance of a call for an extraordinary session of the legislature, the motion for legislative continuance or extension shall be timely if filed no later than five calendar days prior to the hearing or proceeding to be continued or no later than two days following the
issuance of the notice of the meeting or of the call for the extraordinary legislative session, which ever occurs last. An affidavit of the clerk of the House of Representatives or the secretary of the Senate verifying the issuance and date of the issuance of the notice or of the call shall be attached to the motion.
(2) Within seventy-two hours of the filing of a motion for a legislative continuance or extension, the court or agency shall grant the continuance or extension ex parte as follows:
(a) If the grounds for the motion are pursuant to Subparagraph (C)(1)(a) or (b) of this Section, the continuance or extension shall be granted for a period of not less than sixty days from the date of adjournment sine die of the session of the legislature or of the constitutional convention.
(b) If the grounds for the motion are pursuant to Subparagraph (C)(1)(c) of this Section, the continuance or extension shall be granted for the day or days the member or employee is engaged in such activities.
* * *
G. Any action taken against a person, including any sanction imposed on an attorney, who has filed a motion for legislative continuance or extension and which results from the failure of such person or attorney to appear or comply with an order of the court or agency or any deadline shall be considered an absolute nullity and shall be set aside by the court or agency upon the filing of a motion by the aggrieved person or attorney.
* * *
I. For sufficient cause shown, the court may consider a motion for legislative continuance or extension at any time prior to the hearing or proceeding.

Louisiana Revised Statute 48:452.1 provides that a claim for additional compensation is abandoned when the owner fails to take any step in the prosecution of that claim for a period of three years. The provision shall be operative without formal order, but on the ex parte motion of the state entity, the trial court "shall render judgment fixing just compensation in the amount deposited in the registry of the court and awarding that sum to the defendant and dismissing with prejudice any claim for any increase in compensation." Louisiana Revised Statute 48:454 sets forth that except as provided in this part, these suits are tried in accordance with the provisions of the Code of Civil Procedure and general expropriation laws.

The parties agree that the last step in the prosecution of Claitor's demand for additional compensation occurred on November 6, 2012, when Claitor's propounded discovery to the City/Parish. Pursuant to La. R.S. 48:452.1, Claitor's claim for an increase in compensation was deemed abandoned November 6, 2015, three years after the last step in the prosecution of Claitor's additional compensation claim.

Claitor's argues that as an elected member of the Louisiana Senate, Senator Claitor's duties as a senator constituted peremptory cause for extension of time under La. R.S. 13:4163. According to Claitor's, La. R.S. 13:4163 applies to the accrual of time toward abandonment in matters, such as this one, in which he is enrolled. Claitor's posits that the abandonment period for its additional compensation claim was necessarily extended by the number of days that Senator Claitor was in legislative session (336 days since 2009). Therefore, Claitor's argues, its claim should not have been considered abandoned when the City/Parish prematurely filed its motion for dismissal on the basis of abandonment.

The City/Parish objects to this court's consideration of any facts regarding Senator Claitor's service in the legislature and the length of the various legislative sessions as there was no evidence submitted at the hearing on Claitor's motion to set aside the dismissal by way of testimony or documents. We agree that Claitor's argument includes facts that are not in evidence, and therefore, Claitor's argument lacks proper evidentiary support. Claitor's offered no testimonial or documentary evidence to support its claim that it is entitled to a 336-day suspension or interruption of the abandonment period on its additional compensation claim for those days on which legislative sessions were convened and in which Senator Claitor allegedly participated.

Even if we were to take judicial notice of the legislative sessions relied on by Claitor's, La. R.S. 13:4163(A) provides that the legislative continuance or extension "shall be sought by written motion specifically alleging" the grounds for the continuance. (Emphasis added) Moreover, Subsection E sets forth time limitations for the filing of the motion for a legislative continuance or extension. There is no evidence that Senator Claitor filed a written motion seeking to invoke the legislative continuance prior to the expiration of the three-year abandonment period set forth in La. R.S. 48:452.1. While the relied upon statute provides a peremptory ground for a continuance if a party or his attorney is a member of the legislature and the presence, participation, or involvement of the legislator is required in any capacity, the statute does not automatically suspend the tolling of the abandonment period as Claitor's suggests. Instead, it very clearly sets forth the procedural requirements for asserting the peremptory legislative continuance, none of which were followed in this case.

The last step in the prosecution of Claitor's additional compensation claim was taken on November 6, 2012. Claitor's failed to demonstrate that the three-year abandonment period was interrupted or suspended. Therefore, Claitor's claim for additional compensation was abandoned by the operation of law on November 6, 2015. Accordingly, the trial court correctly entered judgment denying Claitor's motion to set aside the dismissal of its additional compensation claim.

CONCLUSION

For the foregoing reasons, the judgment appealed is affirmed. All costs of this appeal are assessed to appellant, R.G. Claitor's Realty.

AFFIRMED.

      The City/Parish sought supervisory review of the ruling with this court. This court did not consider the writ application as it was untimely filed. City of Baton Rouge/East Baton Rouge Parish v. Claitor Children, LLC , 2017-0917 (La. App. 1 Cir. 11/21/2017), 2017 WL 5614916.

      Although the trial court designated the judgment denying Claitor's motion to set aside the dismissal as a "partial final judgment," the judgment rendered after a contradictory hearing on the motion to set aside the dismissal was a final, appealable judgment. See La. C.C.P. art. 561 ; Adams v. Cytec Industries, Inc. , 99-2563 (La. App. 4 Cir. 6/14/2000), 767 So.2d 135, 137.

      In 2017, by virtue of La. Acts No. 363, effective June 23, 2017, the Legislature amended La. R.S. 13:4163(E)(1)(b) to delete the requirement that an affidavit be attached to the motion. Act 363 also changed the word "may" to "shall" in Paragraph I and further added a second subsection to Paragraph I to set forth that the motion for a legislative continuance may be filed by electronic means such as facsimile transmission or electronic mail, or any other means authorized by law, provided that the mover shall provide all opposing counsel or parties with a copy of the motion, simultaneously with the transmission of the motion to the court. La. R.S. 13:4163(I)(2).

      The statute provides for a continuance for any member of the legislator whose presence, participation, or involvement is required in any capacity. It is questionable whether La. R.S. 13:4163 even applies to issues of abandonment or prescription. However, we do not need to address this issue given the requirements of the statute were not followed in this case.

      In Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010 (La. 5/15/01), 785 So.2d 779, 787, our supreme court explained that abandonment is a prescription-based concept. The court stated that abandonment is historically and theoretically a form of liberative prescription and has been construed as subject to prescription-based exceptions. There are only two categories of causes outside the record that can prevent the accrual of the three-year period: (1) a plaintiff-oriented exception based on contra non valentam, that applies when the failure to prosecute is cause by circumstances beyond the plaintiff's control, and (2) a defense-oriented exception based on acknowledgement, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Clark, 785 So.2d at 784-785. Neither of these exceptions are applicable in this case.


text:
    John C. RENTROP and his wife, Dawn Rentrop v. ARCH INSURANCE COMPANY, Progressive Waste Solutions of LA, Inc. d/b/a SWDI, L.L.C. and Jermaine V. Harding
    2017 CA 0635
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: DECEMBER 29, 2017
    R. Scott Ramsey, Jr., Morgan City, LA, Attorney for Plaintiffs/Appellees, John C. Rentrop and Dawn Rentrop
    John J. Rabalais, Joshua B. Couvillion, Covington, LA, Attorneys for Intervenor, St. Mary Parish School Board
    W. Evan Plauche, James H. Johnson, Metairie, LA, Attorneys for Defendants/Appellants, Arch Insurance Company, Progressive Waste Solutions of LA, Inc., d/b/a SWDI, L.L.C. and Jermaine V. Harding
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
   HOLDRIDGE, J.

This personal injury suit arises out of an automobile accident. Defendants appeal a trial court judgment rendered in accordance with a jury verdict, awarding the plaintiffs $1,852,500.00 in damages. The defendants also appeal a judgment denying its Motion for a Judgment Notwithstanding the Verdict or alternatively, a Motion for New Trial. For the following reasons, we amend in part and affirm as amended.

FACTUAL AND PROCEDURAL HISTORY

On October 3, 2012, John C. Rentrop was driving his 1998 GMC Bluebird school bus traveling West on La. Highway 182 near Patterson, Louisiana. Mr. Rentrop had just begun his route and the school bus was full with children. It was Mr. Rentrop's policy for children not to sit in the last four rows of the bus for safety reasons. As Mr. Rentrop's bus came to a stop to let a child off, with the bus lights on and stop signs out, he was struck from behind by a 2007 Mack MR 668S garbage truck driven by Jermaine V. Harding. Mr. Harding failed to yield to the traffic ahead of him resulting in the collision. No children were injured as a result of the accident. Mr. Harding's garbage truck was owned and operated by his employer, Progressive Waste Solutions of Louisiana, Inc. d/b/a SWDI, L.L.C., and insured by Arch Insurance Company. As a result of the accident, both the school bus and the garbage truck were declared total losses.

Following the accident, Mr. Rentrop was taken by ambulance to Teche Regional Medical Center. Mr. Rentrop complained of neck and back pain, but was discharged the same day. On October 8, 2012, Mr. Rentrop saw Dr. Lianter Albert who prescribed him a pain reliever and a muscle relaxer. Mr. Rentrop attended thirty-one sessions of physical therapy and received steroid injections, but his pain still did not recede. Although physical therapy made Mr. Rentrop more active, his pain worsened. Dr. Albert referred Mr. Rentrop to Dr. David Weir, a neurologist, for nerve conduction studies. Dr. Weir examined Mr. Rentrop and determined that he most likely needed surgical intervention because physical therapy did not have lasting benefits. Dr. Weir referred Mr. Rentrop to orthopaedic surgeon, Dr. George Raymond Williams in May of 2013 to determine if surgery was necessary for his neck and back. Dr. Williams examined Mr. Rentrop and determined that he had cervical degenerative disc disease, spondylosis, and a herniated disc. Therefore, Dr. Williams recommended surgery due to Mr. Rentop's severe cervical pain. Mr. Rentrop had a cervical discectomy and fusion in July 2013. Following surgery, Mr. Rentrop's pain in his neck began to improve and his daily headaches receded.

On July 18, 2013, Mr. Rentrop and his wife, Dawn Rentrop, filed a petition for damages against Arch Insurance, Progressive Waste Solutions, and Mr. Harding for the injuries he sustained in the accident. On August 30, 2013, St. Mary Parish School Board, Mr. Rentrop's employer, intervened in the matter, seeking reimbursement for all the workers' compensation indemnity and medical benefits it paid to Mr. Rentrop. On April 4, 2014, the parties jointly stipulated that Mr. Harding's negligence was the sole cause of the accident. After multiple continuances were granted, this matter was set for trial on September 12, 2016.

At trial, several witnesses testified as to Mr. Rentrop's medical condition including Mr. Rentrop and his wife. Mr. Rentrop testified that he had worked as a bus driver for over thirty-one years making approximately $30,000.00 a year, and had not worked as a bus driver since the accident. Mr. Rentrop explained to the jury the history of his medical condition, stating that the cervical discectomy and fusion resolved his arm pain and his neck pain decreased; however, he still had pain in his lower back. Mr. Rentrop testified that in December of 2014, Dr. Williams performed a lumbar discectomy and fusion to treat his back pain. Mr. Rentrop testified that the lumbar surgery helped alleviate his lower back pain.

To further corroborate Mr. Rentrop's testimony, the video deposition of Dr. Williams was played for the jury at trial. Dr. Williams stated in his deposition that when he saw Mr. Rentrop for the first time, he was in severe pain, reporting a "10 out of 10." Dr. Williams stated that as of the date of trial, Mr. Rentrop had met his maximum medical improvement for his neck; however, his back was "not quite solid as of yet."

The defendants presented medical expert, Dr. Walter Stanley Foster, an orthopedic surgeon, to testify regarding his independent medical examination of Mr. Rentrop. Dr. Foster examined Mr. Rentrop after both of his surgeries and reported that he was doing well and that there were no complications. Dr. Foster testified that he believed both surgeries were necessary and that as of the date of trial, Mr. Rentrop should have been at maximum medical improvement for both his neck and back. Dr. Foster further testified that he believed that all of Mr. Rentrop's treatment was related to the accident that occurred on October 3, 2012.

After a three-day jury trial, the jury returned a verdict awarding damages as follows:

JOHN RENTROP A. Physical pain and suffering, past, present and future $450,000.00 B. Mental pain and anguish, past, present and future $250,000.00 C. Disability and disfigurement $125,000.00 D. Inconvenience, loss of gratification of/or intellectual $200,000.00 and/or physical enjoyment of life and loss of lifestyle E. Medical expenses, past, present and future $400,000.00 F. Loss of income, past, present and future $177,500.00 DAWN RENTROP A. Loss of consortium, love and affection, service $250,000.00 and society of her husband

On October 11, 2016, the trial court signed a judgment in accordance with the jury verdict. On October 24, 2016, the defendants filed a Motion for Judgment Notwithstanding the Verdict (JNOV) or alternatively, a Motion for New Trial (MFNT). These motions were denied in a judgment signed on December 22, 2016. The notice of the signing of the judgment was sent to the parties on January 3, 2017. Thereafter, the defendants suspensively appealed.

APPLICABLE LAW

The defendants pleaded a JNOV alternatively with a MFNT. A JNOV should be granted only if the trial court, after considering the evidence in the light most favorable to the party opposed to the motion, finds it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on that issue. Broussard v. Stack, 95-2508 (La. App. 1 Cir. 9/27/96), 680 So.2d 771, 779-780. If there is evidence opposed to the motion that is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Davis v. Wal-Mart Stores, Inc., 2000-0445 (La. 11/28/00), 774 So.2d 84, 89. In making this determination, the court should not weigh the evidence, pass on the credibility of witnesses, or substitute its judgment of the facts for that of the jury. Broussard, 680 So.2d at 780. The standard to be applied by the appellate courts in reviewing the denial of a JNOV is whether the trial court's findings in rendering the JNOV were manifestly erroneous. Id.

In contrast to a JNOV, the MFNT requires a less stringent test than for a JNOV, as such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Davis, 774 So.2d at 93. In considering a MFNT, the trial judge is free to evaluate the evidence without favoring either party; he may draw his own inferences and conclusions and may evaluate the credibility of the witnesses to determine if the jury has erred in giving too much credence to an unreliable witness. Broussard, 680 So.2d at 781. The trial court's discretion in ruling on a MFNT is great, and its decision will not be disturbed on appeal absent an abuse of that discretion. Davis, 774 So.2d at 93. However, the fact that a determination on a MFNT involves judicial discretion does not imply that the trial court can freely interfere with any verdict with which it disagrees. Id. Fact-finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury's responsibility. Id. A MFNT solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury's factual determinations and must be viewed in that light. Thus, the jury's verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Id.

DISCUSSION

Improper Closing Argument

The defendants argued that the plaintiffs' counsel displayed improper behavior during closing argument, warranting a JNOV, or in the alternative a MFNT. The defendants argued that the misconduct of the plaintiffs' counsel produced a prejudicial effect and "went beyond the bounds of permissible and ethical advocacy." Specifically, the defendants argue that the following statement by the plaintiffs' counsel was overly dramatic and influenced the jury verdict:

I've got to say one thing personally. I've enjoyed this trial. Thank you. I started practicing law forty-three years ago. I've had a lot of cases over the years. This is it. This is my last one this afternoon. My forty-three year old career is over with. It's been the finest and great. I just ask you to do what's right here. We've always, though the forty-three years of work, tried to go ahead and do what was right. We tried to do what was fair. We tried not to mislead people. We're not trying to do that here. We're trying to get a fair result for my client. You know, it's hard to walk away from a career that lasts that long. I just wanted to say that. Thank you so much for you attentiveness as a jury. I'm sorry. Thanks.

The defendants contend that the plaintiffs' counsel's statement had an immediate effect on at least one of the jurors who allegedly began crying during counsel's closing statement. The defendants objected to the plaintiffs' counsels' statement once the jury was removed from the courtroom.

The plaintiffs counter that counsel's statement was not intentional and did not have any effect on the jury verdict. The plaintiffs further argue that regardless of whether or not the plaintiffs' counsel's statement had some effect on the jury verdict, the trial court stated during jury instruction that the jury was to disregard all arguments and comments made by the attorneys in closing arguments because of their non-evidentiary nature. Additionally, the plaintiffs argue that because the defendants did not object to counsels' statement at the time it was made, and instead waited to object after the jurors retired from the courtroom, evidences that counsels' statement had no prejudicial effect on the jury verdict.

The test of whether argument of counsel is prejudicial or inflammatory is whether such comment is unreasonable or unfair in the eyes of the law. Breitenbach v. Stroud, 2006-0918 (La. App. 1 Cir. 2/9/07), 959 So.2d 926, 931. This test is balanced against the well-settled jurisprudence that counsel has great latitude in argument before a jury. This latitude is subject to regulation and control by the court who has a duty to confine argument within the proper bounds. Id. Thus, the determination of whether actual prejudice has occurred lies within the sound discretion of the trial court, and this decision will not be overturned on appeal absent an abuse of that discretion. See State v. Wessinger, 98-1234 (La. 5/28/99), 736 So.2d 162, 183, cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999).

We find no merit to the defendants' argument. While counsel's statement may have been slightly inappropriate, it was not overly prejudicial or inflammatory. To thank a jury for their service in closing arguments is a common practice by all attorneys in a jury trial. Furthermore, allowing an attorney with forty-three years of experience to thank a jury for their service and their participation is not so inappropriate as to influence a jury verdict.

Moreover, the allegedly prejudicial inappropriate remarks of the plaintiffs' counsel were subject to corrective measures. The trial court admonished the jury at the start of trial when it instructed the jury to disregard any statements of counsel in opening and closing arguments because "[they] are not evidence and they are not the instructions on the law" and therefore should not be considered when reaching a jury verdict. The trial court has broad discretion in controlling the scope of counsels' arguments, and the trial court was not thoroughly convinced that plaintiffs' counsel's statement influenced the jury and contributed to the verdict. See Ogletree v. Willis-Knighton Memorial Hospital, Inc., 530 So.2d 1175, 1181 (La. App. 2 Cir. 1988), writ denied, 532 So.2d 133 (La. 1988). The trial court is in a better position than an appellate court to determine the possible prejudicial effects resulting from counsel's argument before a jury. Thus, the trial court's refusal to grant the defendants MFNT or JNOV should be accorded great weight. Id.

Based on our thorough review of the record, we find that even in the event that argument of counsel may have been inappropriate, the instructions given by the trial court before trial were more than sufficient to counter any purported sympathies by the plaintiffs' counsel's closing statement. Crediting the good sense and fairmindedness of the jury, we cannot say that the jury was unduly prejudiced by the plaintiffs' counsel's remarks. We further note that because the defendants declined to poll the jurors, there is nothing in the record to prove that the allegedly crying juror was influenced by the plaintiffs' counsel's remarks. Accordingly, we find that the trial court did not abuse its discretion in denying the defendants JNOV, or in the alternative MFNT, and this assignment of error lacks merit.

Loss of Consortium

The defendants also assign as error the jury's award of $250,000.00 to Mrs. Rentrop for loss of consortium. The defendants urge that this award is excessive in light of the testimony and facts of the instant matter.

In reviewing an award for loss of consortium, it is necessary to evaluate the elements that comprise a spouse's loss of consortium claim. The compensable elements include loss of love and affection, loss of companionship, loss of material services, loss of support, impairment of sexual relations, loss of aid and assistance, and loss of felicity. Proof of any one of these components is sufficient for an award of consortium. A loss of consortium award is a fact-specific determination to be decided on a case-by-case basis and is disturbed only if there is a clear abuse of discretion. Lemoine v. Mike Munna, L.L.C., 2013-2187 (La. App. 1 Cir. 6/6/14), 148 So.3d 205, 214.

Ever since the accident on October 3, 2012, Mrs. Rentrop's life has been substantially impacted by her husband's injuries that resulted from the accident. The plaintiffs have been married for thirty-nine years and raised two children and have seven grandchildren. Mrs. Rentrop testified that before the accident, the couple was always outdoors, fishing and boating. Mr. Rentrop had always been a very active person. However, following the accident, Mr. Rentrop has been confined to his home.

Mrs. Rentrop testified regarding her employment stating that she was a pharmacy technician at Rite Aid for ten years and was at another pharmacy ten years before that. She stated that five months after Mr. Rentrop's accident, she had to quit her job to take care of her husband and has been with him every day since then attending all doctor appointments with Mr. Rentrop. She stated that since the accident, Mr. Rentrop has been unable to help out around their home like before. Mrs. Rentrop explained to the jury that before the accident, Mr. Rentrop would do household chores, such as cleaning and cooking. Since the accident, he has not been able to do any of these things because "after a while it just got to be too much."

Mrs. Rentrop further explained to the jury that since the accident, she has lost support from her husband financially. Mr. Rentrop had to close down his automotive business that he owned. Mr. Rentrop also had not returned to work as a bus driver since the accident because he was not released to return to work by his doctor.

Additionally, Mrs. Rentrop testified that since the accident, her and her husband's relationship has been strained. The following colloquy occurred between Mrs. Rentrop and counsel during trial:

A. When he gets depressed because I'm outside doing something that he feels like he should be able to do, then he gets mad. Then, of course, he gets mad at me. We don't talk. I can't say something back to him because I understand the feelings that he's having and I can't do anything about it. So we just don't talk. There's days that we will sit there and maybe say six words to each other, and it's good morning, good night, what do you want for lunch. I mean, I just can't imagine. We used to talk. We used to ride, take rides down to Bums Point just to ... talk about the kids and we'd talk about what we want to do. It's just not good right now. I love him. It's just not good right now.
Q. Are things improving at all? Are they getting better? Have they pretty much reached a plateau.
A. I think it's pretty much reached a plateau
Q. You're still not working, are you?
A. No, sir.
Q. Do you have any plans on going back to work?
A. I don't see how I can.
Q. Why?
A. I've taken over his responsibilities with his mom since his dad's passed away, so I'm cutting her grass. She needs to go to the grocery store. I have my mother that's alone, so I also cut her grass. So I cut my grass. I just can't imagine what more I could take on. I can't do much more.
* * * *
Q. Now, y'all have been married a long time. I'm sure like any typical married couple personal relationships become kind of secondary. I say personal relationships. Physical relationships become secondary over time. Has that changed since the accident?
A. Yes, sir.
Q. Do you and your husband have any intimate moments since this accident?
A. No, sir.

The record reveals that Mr. Rentrop's activities have become limited due to his pain and have stopped the couple from being able to do the outdoor activities that they loved doing together. The couple had to forego their future retirement plans of buying a boat and traveling around the country. Mrs. Rentrop further testified that the accident caused a significant change in their lifestyle, including their loss of love and affection. Mrs. Rentrop testified that she now had to do majority of the household chores because Mr. Rentrop is unable to do very much besides watch television because of his pain. Moreover, because Mr. Rentrop no longer works as a school bus driver and his automotive shop had to be shut down, Mrs. Rentrop had lost support from her partner.

In light of the evidence in the record, the jury's award of $250,000.00 was not an abuse of discretion. Mrs. Rentrop's testimony proved that the accident affected their marriage and that they have experienced a loss of love and affection, loss of companionship, and a loss of support. Accordingly, we find that the trial's court's award is supported by the evidence of record and this assignment of error lacks merit. See Hall v. Brookshire Bros., Ltd., 2002-2404 (La. 6/27/03), 848 So.2d 559, 569 (wherein this court awarded a husband $200,000.00 for loss of consortium after his wife sustained disability due to a pharmacist and physicians malpractice in dispensing drugs and must now rely on her husband daily for assistance); see also Moore v. Safeway, Inc., 95-1552 (La. App. 1 Cir. 11/22/96), 700 So.2d 831, 860-861, writs denied, 97-2921 and 97-3000 (La. 2/6/98), 709 So.2d 744 (wherein this court affirmed a jury award of $200,000.00 for loss of consortium to a wife after her husband suffered a severe head injury rendering him deaf in his right ear, partially dead in his left ear, and unable to attend to his personal needs); see also Watkins v. Lake Charles Memorial Hospital, 2004-355 (La. App. 3 Cir. 12/15/04), 896 So.2d 130, 136-137, writ denied, 2005-0145 (La. 4/8/05), 898 So.2d 1279 (wherein a mother whose child suffered a stroke prior to birth, causing brain damage, was awarded $250,000.00 in loss of consortium.)

Loss of Income

The defendants next assign as error the jury's award of $177,500.00 for past, present, and future loss of income. The defendants allege that this award was unjustified based on the evidence presented at trial. Specifically, the defendants argue that the award was unjustified because their vocational rehabilitation expert, Dr. Larry Stokes, testified that he evaluated Mr. Rentrop and concluded that he was able to perform several jobs within the physical limitations set by his doctor. The defendants further noted that Mr. Rentrop was able to continue his job as a city councilman with his injuries earning an income of $6,000.00 a year.

The plaintiffs counter that when trial began on September 12, 2016, forty-seven months had passed since the accident. From the time of trial until the date that Mr. Rentrop would turn sixty-five years old, when he intended to retire, was a period of twenty-four months. The plaintiffs argue that because Mr. Rentrop worked as a school bus driver for St. Mary Parish School Board for over thirty-one years making approximately $2,500.00 a month, this amount multiplied by seventy-one months, totals $177,500.00. Therefore, the plaintiffs urge that the amount awarded by the jury is justified.

A plaintiff seeking damages for lost wages bears the burden of proving lost earnings, as well as the duration of time missed from work due to the accident. Tate v. Kenny, 2014-0265 (La. App. 1 Cir. 12/23/15), 186 So.3d 119, 129. The jury has broad discretion in assessing awards for lost wages, but there must be a factual basis in the record for the award. Id. Where there is no basis for a precise mathematical calculation of a lost wage claim, the trier of fact can award a reasonable amount of damages without abusing its discretion. Id. Factors to consider in fixing awards for loss of earning capacity include: age, life expectancy, work life expectancy, appropriate discount rate, the annual wage rate increase, prospects for rehabilitation, probable future earning capacity, loss of earning ability, and the inflation factor or decreasing purchasing power of the applicable currency. Lemings v. Sanasac, 2016-0052 (La. App. 1 Cir. 12/22/16), 209 So.3d 396, 399.

The record reflects that at the time of the trial, Mr. Rentrop was sixty-three years old and was only two years from retirement. Since the accident, Mr. Rentrop has been unable to work as a school bus driver and had to close his automotive business. Dr. Williams stated in his deposition that Mr. Rentrop's pain level was aggravated by increased daily activities. Dr. Williams further stated that he was doubtful that Mr. Rentrop would return to work after reaching maximum medical improvement in his back. Although contradictory testimony was offered at trial, the trier of fact is free to accept or reject the testimony expressed by any expert, in whole or in part. Ryan v. Zurich American Ins. Co., 2007-2312 (La. 7/1/08), 988 So.2d 214, 222. After reviewing the record, including Mr. Rentrop's work history and the testimony of Dr. Williams, we conclude that the jury did not abuse its discretion in awarding $177,500.00 for past, present, and future loss of income, as there is a factual basis in the record for such an award. This assignment lacks merit.

General Damages

The plaintiffs assign as error the $1,025,000.00 general damage award to Mr. Rentrop. The defendants argue that this amount is excessive in light of the facts of the instant matter.

General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Schwartzberg v. Guillory, 2016-0753 (La. App. 1 Cir. 2/17/17), 213 So.3d 1266, 1271. The primary objective of general damages is to restore the party in as near a fashion as possible to the state he was in at the time immediately preceding injury. Id. The trier of fact is accorded much discretion in fixing general damage awards. La. C.C. art. 2324.1 ; Id. The discretion vested in the trier of fact is "great," even vast, so that an appellate court should rarely disturb an award of general damages. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award but, rather, to review the exercise of discretion by the trier of fact. Id. Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the trier of fact abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Id. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should modify the award. Id.

The record reveals that prior to the accident, Mr. Rentrop was an active fifty-nine-year-old man, frequently enjoying outdoor activities and planning to retire at age sixty-five and travel the country with his wife. Mr. Rentrop testified that he had no pain in his back or neck prior to the accident. Mr. Rentrop submitted his medical records into evidence, which proved that he attended thirty-one physical therapy sessions prior to his two surgeries. Mr. Rentrop testified that although the two surgeries helped alleviate his pain, it is still not resolved. Mr. Rentrop testified that since the accident, he is unable to walk at a normal pace and has to walk with a cane because he has problems balancing. Mr. Rentrop further testified that his relationship with his family has changed since the accident, as he is no longer able to play with his grandchildren and his relationship with his wife has been affected as a result of his injuries sustained in the accident. Specifically, Mr. Rentrop stated at trial that he has "no desire, no drive, no stamina, no fortitude" since the accident.

Considering the record as a whole, including the medical evidence and testimony presented at trial, because Mr. Rentrop still has complaints of pain four years after the accident, we cannot say that the award constitutes an abuse of the vast discretion accorded to the trier of fact. See Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The jury was in a superior position to observe and review the demeanor of the witnesses and evaluate their credibility, and we must give great weight to their factual conclusions. See Crisler v. Paige One, Inc., 42,563 (La. App. 2 Cir. 1/9/08), 974 So.2d 125, 132. Thus, this assignment of error lacks merit.

Medical Expenses, Past, Present, and Future

The defendants assign as error the jury's award of $400,000.00 in medical expenses because they allege there was no evidence in the record to justify such an award. Specifically, the defendants argue that the record contains no testimony warranting that more probably than not, any future medical expenses would be required for Mr. Rentrop. The defendants rely on Basco v. Liberty Mut. Ins. Co., 2005-0143 (La. App. 3 Cir. 8/17/05), 909 So.2d 660, 668-69, which states that in meeting the burden of proof on the issue of future medical expenses, "the plaintiff must show that, more probably than not, these expenses will be incurred and must present medical testimony that they are indicated and the probable cost of these expenses."

The plaintiffs counter that from the testimony presented at trial, it was more probable than not that Mr. Rentrop would have to undergo another surgery. However, the plaintiffs do not cite to anywhere in the record where this was stated. The plaintiffs further argue that the jury's award was proper because of Dr. William's video deposition, when opposing counsel brought up a past medical bill which was over $400,000.00. However, the record provides that only $150,000.00 in past medical expenses were admitted into the record.

In reviewing special damages, such as medical expenses, there is a two-step process. See Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So.3d 1104, 1118. There must be no reasonable basis for the jury's conclusions and the finding must be clearly wrong. Id. Therefore, we must review the evidence in the record and determine if the jury abused its discretion in finding that the special damage award of $400,000.00 in this matter will more probably than not be incurred by Mr. Rentrop.

Dr. Williams, Mr. Rentrop's treating physician, testified that no future surgeries were planned for Mr. Rentrop for his neck or back. Dr. Williams further stated that he had not sent Mr. Rentrop to a pain management doctor because with his progress he was hopeful that he could get off of his current medications. Dr. Foster corroborated Dr. Williams's testimony, stating that he did not anticipate any future surgeries for Mr. Rentrop and no surgeries had been recommended. Both doctors testified that Mr. Rentrop was doing well after both surgeries and his recovery was better than expected.

After reviewing the record in its entirety, it does not appear that Mr. Rentrop would more probably than not need surgery in the future. Future medical expenses must be established with some degree of certainty. Gaspard v. Southern Farm Bureau Cas. Ins. Co., 2013-0800 (La. App. 1 Cir. 9/24/14), 155 So.3d 24, 35-36. Additionally, there was no testimony presented at trial regarding a cost or exact value of the necessary present or future expenses for Mr. Rentrop. Thus, the plaintiffs have failed to meet their burden of proving that medical expenses will be necessary in the future. The only evidence in the record establishing an award of medical expenses to the plaintiffs was for past medical expenses totaling $150,000.00. For this reason, we amend the jury's award of past, present, and future medical expenses, reducing the award of $400,000.00 to $150,000.00.

Challenge for Cause

Lastly, the defendants assign as error the trial court's denial of its challenge for cause of prospective jurors James Woodward and Dennis Taylor who had previously been represented by the plaintiffs' counsel. For this reason, the defendants argue that both jurors could not be fair and impartial.

Louisiana Code of Civil Procedure Article 1765(2) provides that a juror may be challenged for cause "[w]hen the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial." Article 1765(3) further provides that a juror may also be challenged for cause "[w]hen the relations whether by ... employment, friendship, or enmity between the juror and any party or his attorney are such that it must be reasonably believed that they would influence the juror in coming to a verdict." A trial court has great discretion in ruling on challenges for cause and the appellate court should not disturb its ruling unless the voir dire as a whole indicates an abuse of discretion. Bannerman v. Bishop, 28,382 (La. App. 2 Cir. 7/2/96), 688 So.2d 570, 572, writ denied, 96-2755 (La. 1/10/97), 685 So.2d 146. A prospective juror's friendship, acquaintance, or previous employment of an attorney on an unrelated matter does not necessitate the granting of a challenge for cause if the juror makes it clear that such a relationship would not affect his or her verdict. Raymond v. Government Employees Ins. Co., 2009-1327 (La. App. 3 Cir. 6/2/10), 40 So.3d 1179, 1184, writ denied, 2010-1569 (La. 10/8/10), 46 So.3d 1268.

We first note that Mr. Woodward became ill during trial and was dismissed and replaced by an alternate juror. Therefore, we need not address the arguments regarding him. Accordingly, the sole issue presented is whether the trial court erred in denying the defendant's challenge for cause of Mr. Taylor. During voir dire, Mr. Taylor stated that the plaintiffs' counsel had represented him and his wife; however, he could remain fair and impartial.

After reviewing the record as a whole, we have determined that there is no evidence in the record showing that the prior relationship between Mr. Taylor and the plaintiffs' counsel affected the jury verdict. Based on Mr. Taylor's response, this court cannot say that the trial court erred or abused its discretion in finding that Mr. Taylor could not be impartial in making a decision. A juror's relationship is only sufficient to disqualify him if it is reasonable to conclude that the relationship would influence his decision on the verdict. See State v. Lowdins, 2017-157 (La. App. 3 Cir. 10/4/17), 229 So.3d 547. Thus, we cannot say the trial court abused its discretion.

CONCLUSION

For these reasons, we affirm the trial court's judgment rendered in accordance with the jury's verdict, as well as its denial of the motion for JNOV or, alternatively, a MFNT. However, we amend the final judgment and reduce the jury's award of past, present, and future medical expenses of $400,000.00 to $150,000.00. Appeal costs are assessed equally against the defendants, Arch Insurance Company, Progressive Waste Solutions of LA, Inc., d/b/a SWDI, L.L.C., and Jermaine V. Harding, and the plaintiffs, John and Dawn Rentrop.

AMENDED IN PART; AFFIRMED IN PART AS AMENDED.

      Dr. Williams believed that Mr. Rentrop had degenerative disc disease and spondylosis prior to the accident.

      St. Mary Parish School Board adopted and incorporated in its entirety the brief filed by the plaintiffs. As such, reference to the plaintiffs include St. Mary Parish School Board's argument.

      After the accident, Mr. Rentrop continued his job as a city council member for the city of Patterson earning $6,000.00 a year.

      This court notes that the defendants appealed the December 22, 2016 judgment denying its motion for JNOV or MFNT. The denial of a motion for JNOV or MFNT is an interlocutory and non-appealable judgment. La. C.C.P. art. 1914. However, an appellate court may consider interlocutory judgments, such as the denial of a MFNT/JNOV, as part of an unrestricted appeal from a final judgment. Because the defendants' challenge of the trial court's denial of its MFNT/JNOV is part of the appeal from the final judgment, we may consider the issue on appeal. See GE Commercial Finance Business Property Corp. v. Louisiana Hospital Center, L.L.C., 2010-1838 (La. App. 1 Cir. 6/10/11), 69 So.3d 649, 653 n.4.

      Louisiana Code of Civil Procedure article 1811(A)(2) provides that a MFNT may be joined with a JNOV request, or a new trial may be prayed for in the alternative.

      Special damages are those which have a "ready market value," such that the amount of damages theoretically may be determined with relative certainty, including medical expenses and lost wages. Kaiser v. Hardin, 2006-2092 (La. 4/11/07), 953 So.2d 802, 810.

      There was no objection about Mr. Rentrop's past medical expenses totaling $150,000.00.

      Voir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Stacy, 96-0221 (La. 10/15/96), 680 So.2d 1175, 1178.