author: KEATY, Judge.

text:
    Jamarcus THOMAS v. Louina Denis THOMAS
    17-295
    Court of Appeal of Louisiana, Third Circuit.
    11/22/2017

      Jamarcus Thomas, In Proper Person, 1241 Crochet Street, Opelousas, Louisiana 70570, (337) 501-8933, Plaintiff/Appellant
    William C. Vidrine, Vidrine & Vidrine, 711 West Pinhook Road, Lafayette, Louisiana 70503, (337) 233-5195, Counsel for Defendant/Appellee: Louina Denis
    Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

11A father, in proper person, appeals a judgment con.cerning the custody, child support, and visitation of his minor son. For the following reasons, we amend and render.

FACTS AND PROCEDURAL HISTORY

This matter has been pending since February 12, 2016, when Jamarcus Thomas, through counsel, filed a petition for divorce from Louina Denis, whom he married on October 9, 2015. In an amended petition, Mr. Thomas requested the issuance of a Temporary Restraining Order (TRO) to prevent Ms. Denis from coming near his home; or place of business. According to the pleadings filed by Mr. Thomas, no children had been born of the marriage before the parties separated in January 2016. In an answer and reconventional demand, Ms. Denis, asserted that she was “currently pregnant and due to give birth on July 2, 2016.” She sought, and was granted, a TRO on April 27, 2016, preventing Mr. Thomas from harassing her and from going to her home and place of business. Ms. Denis gave birth to a son, Isaiah Jovan Thomas, on June 25, 2016. Paternity testing later revealed a 99.99% probability that Mr. Thomas is Isaiah’s biological father. According to court minutes dated July 11, 2016, the trial court vacated the earlier granted TRO and entered a reciprocal order ■ prohibiting the parties from harassing each other and allowing the father limited visitation with the child. In early July 2016, Mr. Thomas’s original counsel filed a motion to withdraw on , the basis that Mr. Thomas had retained other representation. On July 25, 2016, Mr. Thomas, in proper person, filed a motion for him and Ms. Denis to undergo mental health evaluations pursuant to La.R.S. 9:331.

|aThe parties appeared before a hearing officer (“HO”) .on July 26, 2016, following which the HO filed recommendations into the record. Among other things, the HO recommended that the parties share joint custody of Isaiah, with Ms. Denis being the domiciliary custodial parent and Mr. Thomas exercising visitation according to a detailed, schedule. Mr. Thomas was ordered to pay $246 per month in child support. Several days later, Mr. Thomas filed' an objection to the recommendation made by the HO. Following a September 12, 2016 hearing, the trial court made the HO’s recommendations the interim order of the court, subject to a few minor modifications regarding the visitation schedule.

Beginning in mid-August 2017, Mr. Thomas, in proper person, filed multiple rules for contempt alleging that Ms. Denis committed various acts interfering with and/or preventing his court-ordered visitation. He also filed a motion to modify interim custody and child support.. Contrarily, after Mr. Thomas failed to pay a single penny of child support to her, Ms. Denis filed a single motion for contempt against him.

. The- judgment being appealed was signed following a January 18, 2017 hearing at which Ms. Denis was represented by counsel and Mr. Thomas appeared pro se. Before addressing the merits, the trial court .noted that Mr. Thomas’s current counsel had filed a motion to withdraw that morning, indicating that Mr. Thomas no longer wanted his services. Upon having Mr. Thomas confirm his desire to terminate counsel, the'trial court signed the motion to withdraw, but advised. Mr. Thomas that his lack of representation could put him at a disadvantage. After some discussion, the parties agreed to continue all issues regarding contempt to a later date and to go forward with the issues of child support, custody, and I/visitation. The hearing was then recessed to give the parties an opportunity to reach an agreement regarding those matters. Upon resumption of the hearing,’ the parties put a stipulation bn the record agreéing to share joint custody of Isaiah, with Ms. Denis being named the domiciliary parent and Mr. Thomas being entitled to reasonable visitation. The parties also had an agreement as to when Mr. Thomas would exercise visitation from March 2017 forward. The trial court then assisted the parties in working out an agreement regarding Mr, Thomas’s visitation schedule in January and February. 2017 in light of some upcoming changes in his work schedule. With the help of the trial court, the parties also came to an agreement regarding the amounts of past and future child support owed from Mr. Thomas to Ms. Denis. Mr. Thomas was sworn in and agreed on the record to each item relating to visitation and child support. At the conclusion of the hearing, the trial court ordered the mother’s attorney’to prepare a judgment and send it to the trial court and the father. The trial court explained that it would not sign the judgment for five days to give Mr. Thomas the opportunity to dispute any part of the judgment. In such case, Mr. Thomas was directed to telephone the trial court; and if it determined that the “problem [wa]s real,” it would attempt to fix the problem with the mother’s attorney or reset the matter for hearing. The trial court stated that it would sign the proposed judgment if five days passed without any call from Mr. Thomas.

|4A judgment prepared by Ms. Denis’s attorney was signed on February 9, 2017. The judgment referenced a joint custody plan which was attached to and made a part of the judgment. Mr. Thomas timely appealed and is now before this court, in proper person, asserting that: 1) the judgment did not reflect what the parties agreed to with regard to January and February 2017, thus conflicting with his work schedule and making , it impossible Tor him to exercise visitation during those months; 2) the judgment did not incorporate the parties’ agreement that he would be furnished with a bill showing the cost of the child’s day care; and 3) although he called the trial court to point out the inconsistencies between the proposed judgment and the agreement reached in court, those inconsistencies were not addressed by the trial court.

DISCUSSION

“Although the courts may not always hold a layman to the same standards of skill and judgment that is required of an attorney, when he‘chooses to appear in proper person, -he assumes all responsibility for his own inadequacy and lack of knowledge of procedural and substantive law.” Deville v. Watch Tower Bible & Tract Soc’y, Inc., 503 So.2d 705, 706 (La. App. 3 Cir. 1987). Nevertheless, in the past, this court has given more leeway to pro se litigants who “lack[ ] formal training in the law and its rules of procedure.” Arterburn v. Arterbun, 15-22, p. 3 (La. App. 3 Cir. 10/7/15), 176 So.3d 1163, 1167.

Under normal circumstances, “Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or | ^assignments of error, unless the interest of justice clearly requires ■ otherwise.” Uniform Rules — Courts of Appeal, Rule 1-3. In this case, we interpret the trial court’s comments urging Mr. Thomas to call the court if he disputed, any part of the proposed judgment as an attempt to save Mr. Thomas the. expense: of filing unnecessary pleadings. Nevertheless, we can understand why Mr. Thomas failed to file a motion for new trial after the trial court signed the proposed judgment, and in the “interest of justice,” we will review his assigned errors even, though they were not formally “submitted to the trial court” in a post-trial motion before he filed this appeal. In the future, we order the parties to comply with La.Dist.Ct.R. 9.5 before presenting the trial court with any judgment, ruling, or order.

Alleged Inconsistencies Between the Stipulation and the Signed Judgment

Because the substance of Mr. Thomas’s first' and third assigned errors overlap, we will address those errors simultaneously. In his appellant brief, Mr. Thomas acknowledges that “a stipulated agreement was reached” between him and Ms. Denis. Nevertheless, he claims that “the arrangement agreed upon was not executed causing multiple days of visitation to be lost between [him] and the minor child.” In her brief in opposition to Mr. Thomas’s appeal, Ms. Denis asserts that because the trial court “made no factual findings nor any conclusions of law[ ], | (¡there is no decision of the court that should be overturned on appeal.” Neither party cites any law or jurisprudence in their brief to this court.

In Fitzgerald v. Fitzgerald, 09-1259 (La.App. 3 Cir. 4/7/10), 2010 WL 1344982 (unpublished opinion), a former husband appealed a trial court judgment finding that, pursuant to a consent judgment entered into by him and his ex-wife, he was responsible for paying her health insurance premiums. This court affirmed, noting:

A consent judgment is a bilateral contract in which parties adjust their differences by mutual consent and thereby put an end to a lawsuit with each party balancing hope of gain against fear of loss. La.Civ.Code art. 3071; Plaquemines Parish Government v. Getty Oil Co., 95-2452 (La. 5/21/96); 673 So.2d 1002. “A judgment, whether it results from the assent, of the parties .or is the result of a judicial determination after a trial on the merits, is and should be accorded sanctity under the law.” Id. at 1006.
Although it has the same binding force, a consent judgment is not one rendered by a trial court as a result of a trial on the merits. A consent judgment has binding force from the presumed voluntary acquiescence of the parties and not from adjudication by the trial court. ...
Deville v. Rapides Area Planning Com’n, 97-1437, p. 9 (La.App. 3 Cir. 6/17/98), 715 So.2d 577, 580-81, writ denied, 98-1943 (La. 10/30/98), 727 So.2d 1167; Peeler v. Dural, 06-936 (La.App. 5 Cir. 4/11/07), 958 So.2d 31.

Fitzgerald, 09-1259, pp. 2-3. In addition, La.Code Civ.P. art. 2085, titled “Limitations on appeals,” provides as follows:

An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.

See also Hill v. Hill, 471 So.2d 1130 (La. App. 3 Cir. 1985).

After comparing the transcript of the January 18, 2017'hearing to the provisions contained in the February 9, 2017 judgment and incorporated joint 17custody plan, we have discovered two minor discrepancies. The joint custody plan provided that Mr. Thomas exercise visitation on February 4 and 18, rather than on February 5 and 19, as agreed to in the transcript. Accordingly, we render judgment directing the trial court to award Mr. Thomas two days of make-up visitation.

Child Care Bill

In his third assignment of error, Mr. Thomas complains that “the child care bill condition was not referecned [sic] [ ] in the custodial agreement.” He contends that while “[t]he child support amount is ordered,” it “remains in question pending proof on- the true daycare amount.” Ms. Denis does not address the merits of this assigned error in her appellee brief. ■

When the issue of child ■ support was addressed at the January 18, 2017 hearing, Mr. Thomas agreed to pay $498 per month retroactive to December 7, 2016, provided that Ms. Denis furnish him with a copy of a bill showing that Isaiah’s child care cost $105 per week as she claimed. The trial court agreed that Mr. Thomas’s request was “totally reasonable,” and it stated that the amount of child support agreed to by the parties was “subject to [Ms. Denis’s attorney] providing [Mr. Thomas] the bill that shows that it’s $105.” Thereafter, counsel for Ms. Denis agreed to provide Mr. Thomas with a copy of the child care bill and to submit an amended judgment reducing the amount of child support owed if the bill was different than the amount that he represented'in open court.

We note that Section C of the joint custody plan, titled “RIGHT OF ACCESS AND INFORMATION,” gives both Mr. Thomas and Ms. Denis the right to “immediate access, from third [parties] to records and information pertaining to the minor child, without permission from the other” and directs that any “third party shall not withhold records for any reason from the requesting parent.” Thus, Mr. Thomas has the right to request that Isaiah’s child care provider furnish him | ¿with a copy of a bill showing the amount charged per week. Nevertheless, we conclude that counsel for Ms. Denis was obliged to give Mr. Thomas a copy of Isaiah’s child care bill given his agreement to do so in open court.

DECREE

For the foregoing reasons, we render judgment directing the trial court to award Mr. Thomas two days of make-up visitation. In addition, we render judgment ordering counsel for Ms. Denis to give Mr. Thomas a copy of Isaiah’s child care bill if he has not already done so. In all other respects, the judgment of the trial court is affirmed. All costs of this • appeal are assessed to Mr. Jamarcus Thomas.

JUDGMENT RENDERED AND OTHERWISE AFFIRMED.

      . We will limit our historical analysis to matters relevant to this appeal.

      , The’HO calculated the amount of child support on- a Joint Obligation Worksheet which was attached to the recommendations filed on July 26, 2016.

      , ’ According to the transcript, the trial court observed that the father had filed more than ten motions for contempt when the alleged violations could have all been presented in a single motion. Thereafter, the father admitted that he was aware that his "filings for contempt [we]re kind of absurd.” In addition, when questioned about a motion for contempt filed on behalf of the mother, Mr. Thomas admitted that he had not paid any child support up until that time. He explained that his ' ■nonpayment was due to the fact that Ms. Denis had referred to Isaiah by her last name rather than "Thomas” on the child-support .paperwork.

      .- Mr. Thomas was told not to send the trial court a letter or file a motion if he disagreed with any part of the proposed judgment.

      . In Arterbum, the former wife, in proper person, appealed a judgment partitioning the community property between her and her former husband. On appeal, this court noted the following about the judge who presided over the matter in the trial court: "In reading the transcripts and reasons for ruling, we perceived an articulate, -well-reasoned, well-intentioned, patient, and enthusiastic jurist who encouraged and counseled the Arterburns from the very beginning of this litigation, and who had the best interest of this family as the goal of his rulings.” Arterburn, 176 So.3d at 1175. The same can be said about the trial court in this case.

      . Rule 9.5 Court’s Signature; Circulation of Proposed Judgment; Request for Reasons for Judgment
      . (a) All judgments, orders, and rulings requiring the court’s signature shall either be presented to the judge for signature when rendered or, if presented later, contain the typewritten name of the judge who rendered tire judgment, order, or ruling.
      (b) If presented later, the responsible attorney or the self-represented party shall circulate the proposed judgment, order, or ruling to counsel for all parties and to self-represented parties and allow at least five (5) working days for comment before presentation to the court. When submitted, the proposed judgment, order, or ruling shall be accompanied by a certifícate stating: the date of mailing; the method of delivery of the document to other counsel of record and to self-represented parties; whether any opposition was received; and the nature of the opposition.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. GREMILLION, Judge,

license: Public Domain

text:
    Robby SANDIFER v. CALCASIEU PARISH PUBLIC WORKS, et al.
    17-343
    Court of Appeal of Louisiana, Third Circuit.
    11/22/2017

      Thomas E. Townsley, Law Office of Thomas E. Townsley LLC, 711 Pujo Street, Lake Charles, LA 70601, Telephone: (337) 430-0994, COUNSEL FOR: Plaintiff/Appellee — Robby Sandifer
    Eric J. Waltner, Allen & Gooch, A Law Corporation, P. O. Box 81129, Lafayette, LA 70598-1129, - Telephone: (337) 291-1400, COUNSEL FOR: Defendant/Appellant — Calcasieu Parish Police Jury
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.
   THIBODEAUX, Chief Judge.

_JjThe Calcasieu Parish Public Works (hereafter “the. Parish”) appeals a judgment in favor of plaintiff-appellee, Mr. Robby Sandifer, which denied its' claimed offset for disability benefits and awarded Mr.' Sandifer attorney fees. The Parish contends that it is entitled to a credit/offset for the amount it contributed to the Parochial Employees’ Retirement System (“PERS”). Additionally, the Parish alleges that the trial court committed an error awarding Mr. Sandifer attorney fees and finding that Mr. Sandifer was permanently and totally disabled. Mr. Sandifer asserts that the Parish failed to reasonably controvert Mr. Sandifer’s disability status and failed to establish the contribution for the credit/offset. We affirm the judgment in favor of Mr. Sandifer. Furthermore, we •grant Mr. Sandifer an additional $5,000 in attorney. fees for defending this appeal.

I.

ISSUES

We must determine whether the trial court erred in holding that the employer was not entitled to a credit/offset for disability benefits paid by the employer and received by the plaintiff. We must also determine whether the trial court erred in awarding attorney fees. Additionally, this court must determine whether subsequent attorney fees should be awarded to the plaintiff for defending this appeal.

JbP-

FACTS AND PROCEDURAL HISTORY

Mr. Sandifer was injured in the course and scope of his employment with the Parish. On August 16, 2005, Mr. Sandifer and another employee of the Parish were attempting to install a piece of metal onto a gradeall when the metal piece slipped, causing Mr. Sandifer to jerk forward, pulling his lower back, Mr. Sandifer felt severe low back pain and felt his legs buckle.

Mr. Sandifer had back surgery approximately nine months before sustaining his work-related injury. Mr. Sandifer was treated in Houston, Texas by Dr. Todd Trask, who performed back surgery. After he sustained a back injury during work, Mr. Sandifer returned to Dr. Trask who then referred him to Dr. Richmond Simmons who handled workers’ compensation-related cases. The doctors recommended a spinal cord stimulator implant because Mr. Sandifer experienced pain radiating down his legs which caused him to fall frequently. The nurse case manager sent Mr. San-difer to see Dr. Patrick Juneau in Lafayette. Dr. Juneau found that Mr. Sandifer needed a two-level decompressive laminec-tomy and fusion at L4-5 and L5-S. Mr. Sandifer underwent the surgery on January 4,. 2005. Mr. Sandifer experienced some improvement after the surgery but later developed low back pain and pain which radiated down his legs. Subsequently, Dr. Juneau referred Mr. Sandifer to Dr. Frank Lopez for pain management.

Dr. Lopez saw Mr. Sandifer on May 20, 2009, and noted that Mr. Sandifer experienced pain in his low back, neck, chest, groin, buttocks with pain radiating down both legs. Dr. Lopez opined that Mr. San-difer had low back pain and failed back surgery syndrome. Dr. Lopez ordered an MRI which showed Mr. Sandifer had a free/extruded disc fragment between L3-4 and L4-5. Dr. Lopez | ¡¡then referred Mr. Sandifer to Dr. Erich Wolf, a neurosurgeon, with the first appointment occurring on August 12, 2013. Dr. Wolfs notes reflect moderate tenderness along the lumbar spine, and muscle tenderness ranging from moderate to severe from L-2 to L-5. Mr. Sandifer communicated to Dr. Wolf that his pain was an eight on a scale of one to ten, causing him severe functional impairment and impairing his ability to sleep. Dr. Wolf performed further testing which reflected tenderness and abnormalities in Mr. Sandifer’s muscle groups in his back. Dr. Wolf determined that a conservative course of treatment and administering injections would be appropriate for Mr. San-difer’s care. The conservative treatment provided little relief for Mr. Sandifer. Subsequently, on August 28, 2013, Dr. Wolf noted that an MRI of Mr. Sandifer’s lumbar spine showed a free fragment of disc and disc degeneration. Dr. Wolf recommended another fusion or discography which was denied by Utilization Review because the Medical Director said there was no pre-psychosocial evaluation. Dr. Wolf referred Mr. Sandifer to Jodie Guth for the evaluation which took place on August 19, 2014. Dr. Wolf resubmitted the request for surgery in September of 2014. Mr. Sandifer received the discogram in early 2016.

Dr. Wolf referred Mr. Sandifer to an orthopedic surgeon, Dr. Clark Gunderson, who recommended injections into the sacroiliac joint with CT guidance. The injections were denied before being approved on appeal to the Medical Director. The procedure was performed on July 28, 2016.

In October 2016, the Medical Director approved a second SI injection after Dr. Wolf met with Mr. Sandifer following .his bilateral sacroiliac joint injection. Dr. Wolf reported that Mr. Sandifer experienced a sixty-percent improvement from the treatment.

| ¿Although Mr. Sandifer saw improvement with the injection, the doctors who evaluated Mr. Sandifer agree that he is permanently and totally disabled. Mr. San-difer is in severe pain and has been out of work for over eleven years. Moreover, two vocational counselors evaluated Mr. Sandi-fer and found that Mr. Sandifer was functionally or partially illiterate, had been in special education classes, lacked diversity in his work history, and relied on his mother and girlfriend to help with bills and paperwork. Additionally, Mr. Sandifer was unable to function without his pain medication. Thus, the vocational counselors determined that Mr. Sandifer was unable to return to work and concluded that there was no reasonable probability that he could be rehabilitated to the extent he can achieve gainful employment.

A trial was held to determine whether Mr. Sandifer is considered permanently and totally disabled and whether the Parish was able to show what they contributed to Mr. Sandifer’s disability/retirement benefit in order to obtain a credit/offset for receipt of benefits from PERS. The parties stipulated that Mr. Sandifer was injured in the course and scope of his employment. Additionally, the parties stipulated that Mr. Sandifer’s average weekly wage is $512.80, with a compensation rate of $341.86.

The Parish contended that it was entitled to an offset of 48.85 percent of what PERS pays Mr. Sandifer. The Parish relied on the testimony of Ms. Dianne Tulley, the administrative director of PERS, to determine that this percentage was the amount contributed by PERS. However, Mr. Gary Curran, the actuary for PERS and several other state retirement funds, testified that it is impossible to determine the percentage of contributions the employer makes to the trust to fund disability benefits for an individual employee because the employer | ¡¡contribution rate is paid by the total salary of all employees. Furthermore, ad valorem and revenue sharing account for a portion of the employer’s contribution. PERS is co-mingled with two hundred entities from sixty-two parishes, and accounts for all employees of those entities and their ancillary beneficiaries. The workers’ compensation judge found that the Parish failed to carry its burden of proof for the contribution to determine what the credit/offset would be.

The trial court also found that Mr. San-difer would not be able to achieve suitable gainful employment based on the evaluations provided by Mr. Sandifer’s doctors coupled with the opinions of the vocational counselors. Additionally, the trial court found Mr. Sandifer was entitled to penalties and attorney fees. The trial court imposed $2,000 in penalties for the improper taking of an offset. Moreover, the trial court awarded $20,000 in attorney fees to Mr. Sandifer for prosecuting the case.

The Parish filed a timely Motion for New Trial. The Parish contended that they had never taken an offset and, therefore, the penalty was improper. The Parish further contended that the entire basis for awarding the attorney fees was based on the penalty and, thus, the attorney fees were also improper. Mr. Sandifer agreed that the Parish correctly requested that the court vacate 'the penalty of $2,000 because the Parish did not take a credit/offset. However, Mr. Sandifer asserted that the court was within its authority to grant $20,000 in attorney fees. The workers’ compensation judge vacated, the penalty of $2,000 and - reduced the attorney fees awarded to Mr. Sandifer from $20,000 to $12,500.

JiIL

STANDARDS OF REVIEW

“Our court reviews the factual findings of a workers’ compensation court under the manifest error or clearly wrong standard of appellate review” Romero v. Northrop-Grumman, 01-24, p. 6 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, 1153 (citing Smith v. Louisiana Dep’t of Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129). When the record is viewed in its entirety, this court will not reverse a workers’ compensation court if the findings were reasonable. Romero, 787 So.2d at 1153 (citing Stobart v. State D.O.T.D., 617 So.2d 880 (La.1993)).

The imposition of penalties and attorney fees on an employer is a question of fáct and this' court reviews the workers’ compensation judge’s finding under the manifest error standard. Romero, p. 10, 787 So.2d at 1155 (citing Wiltz v. Baudin’s Sausage Kitchen, 99-930 (La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La. 10/13/00), 771 So.2d 650).

IV.

law And discussion

Credit/Offset for Disability Benefits

The Parish asserts that it is entitled to .a credit/offset for the disability/retirement benefits paid to Mr., Sandifer by PERS. Under La.R.S. 23:1225(C)(1)(c):

C. (1) If an employee receives remuneration from:
(c) Benefits under disability benefit plans in the proportion funded by an employer.
■ 17then compensation benefits under this Chapter shall be'reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remu- -• neration from- Subparagraphs (a) throügh (d) of this Paragraph shall not exceed sixty-six* and two-thirds percent of his average weekly wage.

The Parish contends that it is entitled to an offset of 48.85 percent because an offset is statutorily provided in the amount of disability benefits paid to Mr. Sandifer.-The Parish claims that the PERS plan does provide disability benefits -and Mr. Sandifer is receiving benefits classified as disability benefits. ■

Further, the Parish asserts that the law does not require the numbers to be specifically'broken down showing their contribution to obtain an offset. The Parish cites Matthews v. City of Alexandria, 92-1784 (La. 1993), 619 So.2d 57, rehearing denied, 6/22/93, (La.1993), asserting that the extent to which the employer must track its funds to obtain a credit is contrary to the wording of the statute and contrary to the Louisiana Supreme Court’s interpretation of the law. We disagree.

Matthews is distinguishable from this case, because in Matthews there was only one entity, the City of Alexandria, contributing to the plan for the Alexandria Fireman’s Pension and Relief Fund. Id. at 800. The employees paid a set amount, “contri-but[ing] 8% of their monthly salaries and the,City matches that-contribution[.]” Id. at 58. The Louisiana Supreme Court affirmed this court’s determination that the employer was “entitled to a credit against worker’s [sic] compensation benefits due the plaintiffs in the proportion funded by the City, and the City bore its burden of proving that the proportion funded by the City was 74.52%.” Id. at 61. Further, the plan was a non-vested and non-tenured plan. Id. at 60.

IsBecause only one entity participated and the evidence showed specific percentages of amounts paid over certain periods of time to an individual employee, a degree of certainty attributable to each employee and to the City is determinable. Here, however, sixty-two parishes participate in the PERS plan and the Parish could not provide an exact figure because there are other sources of revenue such as ad valo-rem taxes and revenue sharing from other entities. Additionally, the employer contribution is based on thé percentage of payroll employees, not per employee.

The Parish has requested remand in this case to be able to prove the math, arguing that Mr. Sandifer is getting overpaid. Mr. Sandifer argues that if the Parish did not establish its burden of proof at trial then the Parish cannot take a credit. Mr. Sandi-fer’argues that the Parish would only be entitled to an offset/credit for disability benefits paid to the claimant in the proportion to the amount funded by the employer. Further, Mr. Sandifer asserts that the Parish cannot show what portion the employer funds to him individually, even if the court finds Mr. Sandifer is receiving disability benefits, and not retirement. Mr. Sandifer contends he is receiving retirement benefits and not disability benefits. He asserts the Parish, failed to meet its burden of proof or demonstrate what amount of reduction they were potentially entitled to under the statute.

This court has repeatedly enumerated the burden of proof for an entitlement to a credit or offset. “In invoking the reduction in workers’ compensation benefits under Section 1225, the employer assumes the burden of proving both the entitlement to and the amount of the credit.” Crochet v. Calcasieu Parish Police Jury, 16-954, p. 4 (La.App. 3 Cir. 4/12/17), 217 So.3d 464, 467, writ denied, 17-781 (La. 9/22/17), 228 So.3d 742 (citing Vallery v. State 9Through Dep’t of Health & Hospitals, 605 So.2d 1380 (La.App. 3 Cir.), writ denied, 609 So.2d 225 (La.1992)); see also Nugent v. Dep’t of Health & Human Res’s., 617 So.2d 1347, 1349 (La.App. 3 Cir. 1993), (noting that “this court clearly explained the statute places the burden of proof on the employer to establish the proportion funded by it for. the disability feature of early retirement benefits”).

In City of Natchitoches v. Williams, 94-1411, pp. 1-2 (La.App. 3 Cir. 5/24/95), 657 So.2d 320, 321-22, this court reviewed' the Municipal Employees Retirement System (MERS) in determining whether the City was entitled' to an offset for the disability retirement benefits received by their injured employee. There, the employee was recéiving benefits which are categorized as strictly disability retirement benefits. Id. at 324. We opined that the employee ’“necessarily precluded himself from receiving a normal retirement and, additionally, subjected himself to the possible consequences ..which is the City’s exercise of its statutory right to seek an offset.” Id. We also determined that the hearing officer correctly found that the “uncontradicted testimony constituted adequate proof that the City was allowed to offset the entire percentage it contributed.” Id.

In Vallery v. State Through Dep’t. of Health & Hospitals, this court explained: “It was incumbent on the State to prove the proportion of its funding for disability benefits, in order to gain the offset.” 605 So.2d 1380, 1381. We opined that “[it] would have been relatively easy for the State to have produced expert actuarial testimony to establish the proportion of. its funding of Vallery’s disability benefit. It simply failed to do so.” Id. at 1383. Ms. Vallery contributed 7% and the State contributed 8%>to the retirement fund. Id. Ms. Vallery needed to work ten years to vest into the regular retirement and was four years from the'^retirement age of 60. Id. Ms. Vallery worked twelve and a half years and had vested into the regular retirement threshold. Id. at 1382.

Here, Mr. Sandifer’s benefits will convert to retirement benefits because of his years of service and his age. Unlike the testimony in City ■ of Natchitoches, here, the Parish provided the testimony of Ms. Tulley which gave a percentage of the Parish’s contribution. Ms. Tulley testified to a percentage establishing the Parish contributed to 48.85 percent. However, the Parish failed to establish the amount contributed per employee or the individual contribution made by the employer. The Parish failed to meet its burden of proof for the offset because the Parish could not provide information which was not undisputed or uncontradicted testimony. The testimony provided by Ms. Tulley is disputed and contradicted by the testimony of the PERS actuary, Mr. Curran. The trial court found that Ms. Tulley provided a percentage for the overall employer contribution to PERS but found this to be an estimate and not exact. The trial court clearly relied on Mr. Curran’s testimony which noted that the funds are so co-mingled that it is impossible to determine the contribution for an individual employee such as Mr. Sandifer.

The Parish failed to meet the burden of proof for the entitlement and Mr. Curran provided testimony that did contradict Ms. Tulley’s estimate. Thus, we find the trial court correctly found that the 48.85 percent was attributable to all employees. The Parish had the opportunity at trial to provide the math and establish the exact contribution for Mr. Sandifer but was unable to prove the contribution with specificity as it applies to Mr. Sandifer. The trial court properly found that the Parish failed to meet the burden of proof required to obtain a credit/offset under the statute.

J^jLike the plaintiff in Vallery, Mr. San-difer had vested in regular retirement because his years of working for the Parish. At retirement age, Mr. Sandifer’s benefits convert to retirement. Thus, Mr. Sandifer is not precluded. Additionally, in Vallery, there was only one employer which allowed for an easier, formulaic approach when determining the offset.

Here, the year-to-year records provided by Ms. Tulley were misleading because they did not show the contribution per employee. Mr. Curran testified that the contribution is paid by a percentage of monthly payroll employees and not for the individual employee by the employer. The Parish unpersuasively gives greater weight to Ms. Tulley’s deposition and testimony and requests this court consider the weight of the testimony. The trial court weighed the testimony provided both by Mr. Curran and Ms. Tulley and afforded Mr. Curran’s testimony greater weight.

We will not replace our judgment of the testimony for that of the trial court, which was in the better position to Weigh the evidence. We find the Parish failed to meet its burden of proof to establish the amount the Parish contributed on behalf of Mr. Sandifer individually for his retirement benefits to entitle them to an offset/credit. The disputed testimony of Ms. Tulley and Mr. Curran was weighed by the trial court. We find the trial court properly found Ms. Tulley’s testimony was not specific enough to establish the amount as it related to Mr. Sandifer’s benefits. As noted by Mr. Cur-ran, the calculations are impractical and impossible. Thus, we find the trial court reasonably determined that the Parish is entitled to an offset but failed to meet the burden at trial. Accordingly, we affirm the trial court’s judgment and will not remand this case to determine the contribution because the Parish had the opportunity to prove this at trial and failed.

11¾Permanent and Total Disability

Additionally, we find the trial court properly determined that Mr. Sandifer is permanently and totally disabled. The medical doctors and vocational experts all reached a conclusion that Mr. Sandifer suffered from pain that renders him unable to work and requires pain medicine. Further, as the record reflects, Mr. Sandi-fer has been out of work for eleven years and is partially and functionally illiterate with little diversity in his work history. The trial court properly found Mr. Sandi-fer was permanently and totally disabled and that the employer-defendant failed to present evidence at trial which reasonably controverted this status. A review of the record reflects that Mr. Sandifer is permanently and totally disabled. We affirm the trial court’s judgment that Mr. Sandifer is permanently and totally disabled.

Next, we must address whether the trial court correctly awarded Mr. Sandifer attorney fees. The Parish asserts that attorney fees were not warranted because the benefits were not reduced and no offset was taken. It is not disputed that workers’ compensation benefits have been paid to Mr. Sandifer. Mr. Sandifer does not dispute that the Parish did not take the offset. However, the issue is whether the Parish reasonably controverted Mr. Sandi-fer’s permanent and total disability status. The Parish did not.

“The determination of whether an employer has reasonably controverted claims for the purpose of imposing penalties and attorney fees depends on the facts known to the employer at the time of its conduct.” Romero, 787 So.2d at 1155 (citing Harris v. Langston Co., 94-1266 (La. App. 3 Cir. 4/5/95), 653 So.2d 789, writ denied, 95-1178 (La. 6/23/95), 656 So.2d 1020).

La.R.S. 23:1201(F) reads:

11sExcept as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physician when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim....

La.R.S. 23:1201(1) reads:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this .Section..,,

This court further 'wrote “[to] reasonably controvert a claim so as to not be liable for statutory penalties, the employer must have factual and medical information of such a nature that it reasonably counters that provided by the workers’ compensation claimant.” Id. (citing Balsamo v. Jones, 28-885 (La.App. 2 Cir. 12/11/96), 685 So.2d 1140).

In Doucet v. Jantzen, 00-1318, p. 1 (La. App. 3 Cir. 4/4/01), 804 So.2d 650, 651, this court found that the plaintiff was permanently and totally disabled after she underwent two failed fusion surgeries following a work-related injury. This court affirmed the workers’ compensation judge’s determination that the plaintiff was permanently and totally disabled and was entitled to attorney fees. Id. at 654. There, the trial court was unable to determine the amount that the employer paid to the plaintiff or the offset that the employer may have taken. Id.

14In Chavis v. Dillard’s, Inc., 11-827, p. 4 (La.App. 3 Cir. 12/21/11), 80 So.3d 1194, 1196, we awarded attorney fees- to Ms. Chavis who sustained a work-related injury and her employer, Dillard’s, refused to change her status to permanently and totally disabled. Ms. Chavis was awarded attorney fees but not penalties after -the workers’ compensation judge reviewed the medical evidence and physician testimony which found Ms. Chavis had weakness, shaking, and issues with her balance years after she received a two-level fusion. Id. at 1195-96. Further, the court found Ms, Chavis was functionally illiterate and “lacks transferable skills.” Id. at 1196. At trial, Dillard’s did not provide any medical evidence which would have reasonably controverted the medical testimony supporting Ms. Chavis’s permanently and totally disabled status. Id. at 1197. Dillard’s refusal to change her status forced Ms. Chavis to go to trial and “incur unnecessary attorney’s fees.” Id.

Here, the Parish , also refused to stipulate to Mr. Sandifer’s permanent and total disability status. The Parish did not reasonably controvert Mr. Sandifer’s status and,. he, like the plaintiff in Chavis, was forced to incur unnecessary fees prosecuting the case. Mr. Sandifer went to multiple doctors, including the doctor that the Parish sent him to see for an evaluation. All the physicians opined that he would not be able to return to work. Furthermore, Mr. Sandifer. is functionally illiterate and lacks diversity in his work history, as noted by the two vocational experts.

The trial court reviewed Mr. Sandifer’s medical record and found Mr. Sandifer’s status as permanently and totally disabled. After the trial court established Mr. Sandi-fer’s status and the Parish failed to reasonably controvert the status, the trial court was authorized to award attorney fees. The record is woefully | ^deficient of anything which disputes the medical evidence provided by Mr. Sandifer for a finding of permanent and total disability status. After a review of the entire record, and particularly the medical records, we find that the trial court properly determined Mr. Sandifer is permanently and totally disabled. Thus, the Parish’s failure to reasonably controvert Mr. Sandifer’s status triggered attorney fees because Mr, Sandi-fer incurred the unnecessary expense of a trial.

It is clear from the record and from oral arguments that the Parish thinks attorney fees were only before the trial court on the motion,for new trial and before this court on the basis of whether an offset was obtained, or whether there was a gap in payment. This is not the sole triggering aspect for which attorney- fees are awarded.

Louisiana Code of Civil Procedure Article 862 reads:

Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief..

The Parish’s argument ignores the standard for attorney fees and is based on an improper reading of Chavis. Mr. Sandifer’s attorney advances the argument for attorney fees as it was awarded in Chavis when the employer forced the plaintiff to trial and then provided no evidence , to .controvert medical .testimony provided by the plaintiff. The offset did not occur and the trial court, did acknowledge that during the hearing on the Motion for New Trial. The trial court also acknowledged that Mr. Sandifer had to retain an attorney to prosecute the case. We find that the trial court properly awarded attorney fees, finding the Parish did not reasonably controvert Mr. Sandifer’s status and Mr. Sandifer had to prosecute the case.

|1(iTliis court must determine whether to award attorney fees on appeal. Mr. Sandi-fer requests attorney fees for defending this appeal. In Olivier v. City of Eunice, 10-1433, p. 10 (La.App. 3 Cir. 6/18/11), 66 So.3d 1244, this court awarded attorney fees on appeal. “Because attorney fees were correctly awarded below, failing to award attorney fees for the additional work required for this appeal would be inconsistent with that judgment.” Id. at 1251 (citing Frank v. Kent Guidry Farms, 01-727, p. 5 (La.App. 3 Cir. 5/8/02), 816 So.2d 969, 973, writ denied, 02-1608 (La. 6/27/03), 847 So.2d 1273). Accordingly, we award Mr. Sandifer $5,000 in attorney fees for defending this appeal.

V.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment in favor of Mr. San-difer and grant $5,000 in attorney fees for defending the appeal. All costs are assessed to the Defendant-Appellant.

AFFIRMED.

GREMILLION, J., dissents, and assigns reasons.

GREMILLION, Judge,

dissents.

h7I respectfully disagree with the majority in this matter, and would reverse the Workers’ Compensation Judge;

This matter sets forth facts identical to those in Crochet v. Calcasieu Parish Police Jury, 16-954 (La.App. 3 Cir. 4/12/17) 217 So.3d 464, writ denied, 17-781 (La. 9/22/17), 228 So.3d 742. All that is required of the employer, to. carry its burden of proving an offset, is the proportion of its contribution to that of the employee. The majority ignored the plain language of La. R.S. 23:1225(C)(1)(c), “If ah employee receives remuneration from [benefits under disability benefits in the proportion funded by an employerl,] then compensation under this chapter shall be reduced....” (Emphasis added). The employer'is not required to prove the aggregate -of every parish participating in PERS; it is only required to prove how much it contributed versus how much..the employee contributed.

■ The standard imposed by the majority is contrary to Crochet, which controls'this matter. The levék of proof the majority calls for would be impossible for any parish entity to achieve. Accordingly, I dissent. -


author: GREMILLION, Judge.

text:
    The SUVA CORPORATION, et al. v. Jane Renee Johnson SMITH, et al.
    17-328 consolidated with 17-418
    Court of Appeal of Louisiana, Third Circuit.
    11/22/2017

      John S. Bradford, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., P. O. Box 2900, Lake Charles, LA 70602, (337) 436-9491, COUNSEL FOR PLAINTIFF/APPELLANT: Leon Lucien Lan-guirand, Executor, Succession of Martha Ann Hardee Languirand
    Michael S. Coyle, Attorney at Law, Post Office Box 636, Ruston, LA 71273-0636, (318) 254-8200, COUNSEL FOR DEFENDANTS/APPELLANTS: Jane Renee Johnson Smith, Leon Lucien Langui-rand, Executor, Succession of Martha Ann Hardee Languirand, Trentice Van Johnson, Jr., Hugh Clark Hinton, Samual Jackson Hinton, Robert Hugh Johnson
    William A. Jones, Jr., Attorney at Law, Post Office Box 2644, Ruston, LA 71273-2644, (318) 255-2944, COUNSEL FOR DEFENDANTS/APPELLANTS: Hugh Clark Hinton, Samual Jackson Hinton, Robert Hugh Johnson, Trentice Van Johnson, Jr., Jane Renee Johnson Smith, Leon Lucien Languirand, Executor, Succession of Martha Ann Hardee Languirand
    Charles E. Tabor, Gregorio, Chafin, Johnson, Poolson & Tabor, L.L.C., 7600 Fern Avenue, Building 700, Shreveport, LA 71105, (318) 865-8680, COUNSEL FOR PLAINTIFFS/APPELLEES: The Suva Corporation, Hardee Family Properties, LLC, T. W. Hardee Properties, LLC
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

I,The defendants, heirs to real property located in Sabine Parish, appeal the trial court’s finding of a mutual mistake in a deed executed in 1949 by brothers, Hugh and Thomas Hardee, resulting in the plaintiffs being declared the sole owners of tracts of land in question. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2010, the Suva plaintiffs filed a petition for declaratory judgment seeking to be declared the owners of certain immovable property located in Sabine Parish. In October 2010, the Suva plaintiffs filed their first amending and supplemental petition to the petition for declaratory judgment urging that a mutual error existed in the March 9,1949 deed from Hugh to Thomas that omitted some property from the deed. In response, the defendants filed peremptory exceptions of prescription,, no right of action, and no cause of action. The Suva plaintiffs, thereafter, filed a second amending and supplemental petition to their | ¿petition for declaratory judgment pleading in the alternative ten years good faith acquisitive prescription and thirty years acquisitive prescription of the disputed property. In their third amending and supplemental petition, the Suva plaintiffs again noted the mutual error omitting the following described property:

'44.
The mutual error was that some property whs omitted from the Deed including the following described property to-wit:
The Southwest quarter of Northwest quarter of Section 15, Township 8 North, Range 11 West, Sabine Parish, .Louisiana which property was subsequently' transferred by the Deeds,' Judgment of Possession and Partition as described in Plaintiffs original Petition to T.W. Hardee Properties, LLC. .

The petition further urged that T.W. Hardee Properties, LLC and its ancestors had possessed the above property since 1947. The defendants filed a reconventional demand urging that the Suva plaintiffs had wrongfully received revenue from timber sales and oil and gas leases from the disputed property. In response, the Suva plaintiffs filed an exception of prescription.

lain August 2015, the Suva plaintiffs filed a motion to consolidate this action with docket number 17-418. The Salamander case was tried first. The Salamander petition described the disputed property as: ,

Tract 1: The West Half of the Southwest Quarter of the Southwest Quarter of Section 1 and the Southwest Quarter of the Southwest Quarter of Section 3, all in Township 8 North, Range 11 West, Sabine Parish,'Louisiana[.]
Tract 2: The Southeast Quarter of the Southwest Quarter of Section 3, Township 8 North, Range 11 West, Sabine Parish, Louisiana[.]

At the conclusion of the casé, the Salamander record was introduced into the Suva case. Following the submission of the documentary evidence to the trial court, it rendered a judgment in December 2016, in favor of all of the plaintiffs, finding that they- are the sole owners of the property. The trial court issued extensive findings of fact and conclusions of law. The trial court concluded that the brothers omitted the disputed tracts by mutual.mistake and reformed the 1949 deed to include the disputed tracts.

The defendants appeal the trial court’s judgment and assign as error:

1. In order to reform a deed on the basis of mutual mistake and add un-described tracts to the conveyance, Louisiana Courts have imposed an extraordinary burden of proof on plaintiffs, requiring the plaintiff to prove mutual mistake by “clear, and the strongest possible, proof;” therefore, it was error for the Trial Court to reform the 1949 Deed on what, at best, can only be characterized as inconclusive evidence.
2. It is well established that a deed, as the last expression of the parties’ agreement, controls and supersedes whatever previous discussions or agreements may have taken place between the parties; therefore, the Trial Court erred when it imported the omiiibus language contained in the Purchase Agreement into the 1949 Deed and used that imported omnibus language as the basis for adding the Disputed Tracts to the 1949 Deed.

|⅜3. In determining whether to reform the 1949 Deed and in deciding whether the Plaintiffs had carried their burden of proving mutual mistake by “clear, and the strongest possible, proof,” the Trial Court was obligated to consider all the evidence; therefore, it was error for the Trial Court to disregard the facts that:

a. The 1949 Deed did not include the omnibus language contained in the Purchase Agreement;
b. Hugh Hardee retained other tracts of Sabine land he owned in 1949 and which he sold in 1953;
c. In 1953, during Thomas’s lifetime, he sold some of the land he had retained in 1949.
d.Hugh Hardee gave Thomas Har-dee his power of attorney to add any tracts mistakenly left off the . 1949 Deed and Thomas Hardee exercised that power of attorney to add certain tracts, but did not use that power of attorney to add the Disputed Tracts.

DISCUSSION

Standard of Review

The defendants argue that we should review the record de novo because this case involves “contract interpretation,” However, we have previously held that the determination of whether a mutual error existed such that contract reformation is warranted is a question of fact, and we will not disturb the trial court’s findings unless it was clearly wrong. See Teche Realty & Inv. v. Morrow, 95-1473 (La.App. 3 Cir. 4/17/96), 673 So.2d 1145; WMC Mortgage Corp. v. Weatherly, 07-75 (La. App. 3 Cir. 6/13/07), 963 So.2d 413, writ denied, 01-1475 (La. 10/5/07), 964 So.2d 945. Accordingly, if reasonable people could reach the same conclusion after a review of the record, the trial court’s finding cannot be clearly wrong even if, had we been sitting as the trier of fact, we may have reached a different conclusion, Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). The trial court issued extensive reasons for its findings, stating in part:

IfiThe 1949 Agreement and subject deed recorded March 17, 1949, was without question an oihnibus designation transla-tive of title of the subject, tracts as it reflects the unequivocal intent of Hugh M. Hardee to sell to his brother, Thomas W. Hardee, Jr., “all of the immovable property'owned by him as of July 31, 1947, in the Parish [ ] of ... Sabine, State of Louisiana ... [except for certain specified parcels].” ... ' Based on the terms of the 1949 Agreement alone, the omnibus designation language therein serves as though the lands were specifically described in it. Albeit that a few stray parcels of the considerable collection of parcels transferred in the singular transaction, amounting to approximately 2500 acres, were not specifically described in the companion deed,[] the omnibus designation language essentially cures that defect be it caused by error or not.
The agreement executed on March 9, ’1949, contemporaneously with the subject deed, when read together, form the basis of the brothers’ agreement. The 1949 Agreement expressly provides that Hugh was selling all of his property to Thomas; ... Had there been intent to delete the Omitted Property from the sale, logic stands that it would have been likewise removed from the 1949 Agreement. It should be remembered that in rural Pleasant Hill, Louisiana in 1949, the ease and precision now afforded by computers and online conveyance records were then the subject of science fiction. Such an error could not be unexpected with the large swath of remote rural undeveloped land that was made subject of this transaction. Further, the fact that Hugh granted Thomas power of attorney, also contemporaneously executed with the 1949 Agreement and subject deed, to correct any problems with the subject deed, further buttresses the omnibus designation intent of the parties that Hugh was washing his hand of “all of the immovable property owned by him as of July SI, 19⅛7, in the Parishes of Caddo, DeSoto, Natchitoches, Red River, and Sabine, State of Louisiana, and in Miller County, Arkansas" to the exclusion of specifically identified properties. Thomas Hardee employed that power of attorney to add a parcel of land, | (¡Section 15, back into the 1949 Deed, a parcel adjacent to the Omitted Property. This court finds it very logical that as the Section 15 property was omitted “through error, oversight and inadvertence” from the 1949 Deed and was added into it, likewise was the Omitted Property here. The court, concludes that the brothers failed to discover the remaining Omitted Property prior to their deaths.

Deed Reformation

The moving party in a reformation action bears a heavy burden of proving, a mutual mistake or error by clear and convincing proof. Teche, 673 So.2d 1145. An act of sale is usually a final expression of the parties’ intent following a negotiation process. Id. An authentic act is full proof of the agreement it contains as against the parties. La.Code Civ.P. art. 1835. Reformation is an equitable remedy which is available to correct errors or mistakes in written instruments only when the instrument does not reflect the parties’ true intent. Teche, 673 So.2d 1145; Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957). A mutual mistake is

a mistake shared by both parties to the instrument at the time of reducing their agreement to writing, and the mistake is mutual if the contract has been written in terms which violate the understanding of both parties; that is, if it appears that both have done what neither intended. The evidence of mutuality must relate to the time of the execution of the instrument and show that the parties then intended to say one thing and by mistake expressed another and different thing.

Succession of Jones v. Jones, 486 So.2d 1124, 1127 (La.App. 2 Cir.), writ denied, 489 So.2d 249 (La.1986). Parol evidence is admissible to prove the parties’ true intent. Catyb v. Deville, 246 So.2d 41 (La. App. 8 Cir. 1971).

Evidence

In this case, there are no living parties or witnesses to the contract. Therefore, the brothers’ intent in creating the 1949 Deed must be gleaned from the documents and actions of the parties at the time.

|7The defendants argue that the trial court rewrote the 1949 Deed by adding the omnibus language from the Purchase Agreement to the Deed. The trial court found that since the two documents were executed contemporaneously, they must be read in “pari materia.” The defendants argue that the best evidence of Hugh’s lack of intent to convey all of his Sabine Parish land to Thomas is the fact that he retained ownership in other Sabine Parish land which he later sold in 1958 during Thomas’ lifetime. The defendants argue that reformation of a sixty-seven-year old contract on such grounds jeopardizes the stability of land titles. They further argue that the omnibus “all my land in Sabine Parish” language found in the Purchase Agreement was intentionally excluded from the 1949 Deed, and that it easily could have been included since the same lawyer drafted both documents.

The plaintiffs, on the other hand, argue that the disputed property, although included in the 1949 Agreement, was unintentionally left out of the 1949 Deed which is detailed and massive, covering thousands of acres of land. The plaintiffs urge that the omission was not discovered until nearly sixty years later when a land man was trying to lease the property, and during the sixty years, the plaintiffs had been in continuous and uninterrupted control and possession of the disputed property. They further argue that the documents and facts surrounding the Deed unequivocally prove that Hugh intended to convey all of his partnership property to Thomas, and that the brothers were aware that some of the 2500 acres may not have been properly listed; thus, Hugh gave Thomas the specific power to correct any mistakes relating to the Deed. The plaintiffs point to the 1955 ratification executed by Hugh in favor of Skelly Oil Company relating to the disputed property in which Hugh affirmed that all bonus and rental moneys are to the be paid to Thomas.

jj.949 Purchase Agreement

The March 9, 1949 signed “Contract and Agreement” (Agreement), which was filed in the conveyance records on March 17, 1949, provides in part that Hugh “contracted and sold to [Thomas] all of the immovable property owned by him as of July 31,1947, in the Parishes of Caddo, DeSoto, Natchitoches, Red River and Sabine, State of Louisiana, and in Miller County, Arkansas, except the property owned by [Hugh] in Block 20, Block 34, and Block 35 of the Town of Pleasant Hill, Louisiana ...”

The Agreement further conveyed to Thomas “all of [Hugh’s] undivided interest in and to the partnership which existed between [Hugh] and [Thomas], and which was operated and carried on under the name of T.W. Hardee & Company .. Hugh -further reserved “one-half (1/2) of his interest in the oil, gas and other mineral rights, in which 'reservation he agreed that [Thomas] would have unlimited right to execute oil, gas and mineral leases covering said property and receive and receipt for all bonus money ,,, ”

In the Agreement, Hugh executed an irrevocable power of attorney unto Thomas, making Thomas his'“agent and attorney in fact for the purpose of executing any and all 'correction deeds and other documents necessary to cure and perfect titles to any of.the immovable property owned by [Hugh] prior to and as of July 31, 1947.” In consideration for the sale, Hugh paid Thomas $100,000 payable in four installments of $25,000.

The. Agreement was signed by both Hugh and Thomas.

jjJ.949 Deed

An image of the Deed is included for reference below to show the complex descriptions of the vast amount of land conveyed from Hugh to Thomas. The Deed was also executed on March 9, 1949, and filed into the conveyance records on March 17,1949.

1949 Power of Attorney

A separate “Power of Attorney,” dated March 9, 1949, was also recorded on March 17, 1949, in which Hugh declared Thomas to be

his true and lawful agent and attorney in fact, ... to execute any and all correction deeds, documents and other instruments necessary to perfect any and all land title to any immovable property owned by said Hugh M. Hardee prior to July 31,1947, situated in the Parishes of 112Sabine, DeSoto, Red River and Caddo, State of Louisiana, which authority herein conveyed is irrevocable.

1950 Correction Deed

. In December 1950, pursuant to the power of attorney executed by Hugh in favor of Thomas, Thomas executed a Correction Deed that added one of the omitted tracts that was included in the 1949 Agreement. The Correction Deed affirmed Hugh’s reservation of 50 percent of the mineral royalties realized from the property. The Correction Deed clearly incorporates the substance and language found in the Agreement. The Correction Deed stated in pertinent part:

WHEREAS, on the 9th day of March, 1949, [Thomas] executed a contract with Hugh M. Hardee, wherein it was agreed that Hugh M. Hardee would convey to him all of the real estate, or immovable property, owned by him except certain property situated in the Town of Pleasant Hill, Louisiana; and,
WHEREAS, Pursuant to the terms of said contract the said Hugh M. Hardee authorized him, the said Thomas W. Hardee, Jr., a power of attorney duly executed to execute any and all correction deeds, documents and other instruments necessary to perfect the title to any and all lands to be conveyed according to the terms of said contract, as will more fully appear from said power of attorney which is recorded ....
WHEREAS, through error, oversight and inadvertence there was omitted from said deed dated March 9, 1949 and recorded under Instrument No 128,625, as aforesaid, the following described property situated in the parish of Sabine, Louisiana, to-wit:
The Southwest Quarter of the Northwest quarter of Section fifteen (15), township eight (8) north, Range eleven (11) west.
NOW, THEREFORE, in order to carry out the original intention as expressed by the said Hugh M. Hardee and Thomas W. Hardee, Jr. in said contract dated March 9,1949 ....

jjijSkelly Oil Ratification

On September 15,1955, Thomas granted an Oil, Gas. and Mineral Lease in favor of Skelly Oil Company on Section 10 of the omitted property. On September 29, 1965, Hugh executed a “Ratification” of .the lease, which stated:

This the said Hugh M. Hardee hereby ratifies and confirms said lease the same as if he was a lessor in said lease and hereby stipulates that all bonus and rental moneys are to be paid to Thomas W. Hardee, Jr. and that he, the said Hugh M. Hardee, is to receive his proportionate part of the royalties due and payable under said lease.
That the said Hugh M. Hardee hereby ratifies and confirms the lease referred to above in all of its terms and conditions. . .. ■

Plaintiffs argue that, the ratification' is important, because-the only .documents giving Thomas the right to receive bonus and rental payments are the 1949 Agreement and the 1949 Deed, and that Hugh would not have ratified it if he did not believe that the disputed property was part of 1949 Deed. The trial court agreed, finding: ■

This fact indubitably suggests that at the time of the ratification, Hugh Har-dee thought the omitted properties were included in the [subject deed]. This court is at sea to come up with a plausible alternative explanation. This court’s conclusion is buttressed by the testimony of Defendants’ expert, Damon Weger, who not only stated that the 1949 Agreement and the 1949 Deed were the only documents that gave Thomas the right to receive bonus and rental funds, but that Hugh Hardee’s fifty-percent mineral reservation would require ’such a ratification. This further propels the court to conclude- that the omitted properties were meant to be in the subject deed per the 1949 Agreement.

[^Testimony and Tax Bills

Multiple defendants testified via deposition that they had no knowledge of the disputed property until 2010, when 'contacted by a land man. The record also included' tax bills showing that Thomas and his descendants have always paid the tax bills associated with the disputed property. Further, numerous transactions such as partitions and successions involving the disputed property were, carried out by Thomas’s heirs.

Based on our review of the record, we find that reasonable people could easily conclude, as the trial court did, that the plaintiffs proved by clear and convincing evidence that the disputed property was omitted by mutual mistake of the brothers, based on the simultaneously executed 1949 Purchase Agreement and Deed, the Correction Deed, and the Skelly Oil Ratification document. Furthier, the treatment of the property following the brothers’ deaths and the defendants’ stipulation that they had no prior knowledge of the omitted property supports a finding that Hugh intended to convey this property to Thomas as part of the original Agreement.' Furthermore, the defendants’ reliance on the fact that Hugh owned other property in Sabine Parish ignores the fact that the deed intended to convey all of the partnership-owned property in Sabine parish. The disputed property was adjacent to other partnership propérty that was inadvertently omitted. The Skelly Oil ratification further buttresses plaintiffs’ claims that Hugh intended to convey' all of the property included in the Agreement and that the omitted parcels resulted from mutual error. Accordingly, we find no error in the trial court’s ruling reforming the Deed and declaring the plaintiffs the sole owners of the tracts.

^CONCLUSION

The judgment of the trial court reforming the 1949 Deed to include the omitted tracts and placing the plaintiffs in full possession of the omitted property is affirmed. All costs of this appeal are assessed against the defendants-appellants, Jane Renee Johnson Smith, Trentice Van' Johnson, Jr., Robert Hugh Johnson, Martha Ann Hardee Languirand, Hugh Clark Hinton, and Samual Jackson Hinton.

AFFIRMED.

      . The defendants are Jane Renee Johnson Smith, Trentice Van Johnson, Jr., Robert Hugh Johnson, Martha Ann Hardee Langui-rand, Hugh Clark Hinton, and Samual Jackson Hinton.

      . The plaintiffs are all descendants of Thomas (or businesses comprised of Thomas's descendants). The Suva Corporation, LLC, Hardee Family Properties, LLC, and T.W. Hardee Properties, LLC, filed suit in 2010 (Suva plaintiffs). The Salamander Land, LLC and SHS Investments plaintiffs filed their petition for declaratory judgment in May 2012 (Salamander plaintiffs). We refer to them collectively as plaintiffs.

      . These consolidated matters include docket numbers 17-328 (the Suva plaintiffs) and 17-418 (the Salamander plaintiffs).

      . This factual background follows the history of the first-filed suit. Similar pleadings were filed by the Salamander plaintiffs once they filed their petition for declaratory judgment in 2012. Because the substantive matters are the same, we will not repeat the details of the proceedings.

      . The first amending and supplemental petition stated:
      39.
      The mutual error was some property was omitted from the deed including the following described property, to wit:
      The North Half of the Southeast Quarter of Section 10, Township 8 North, Range Í1 West, Sabine Parish, Louisiana and the Southwest Quarter of the Southeast Quarter of Section 10, Township 8 North, Range 11 West, Sabine Parish, Louisiana,

      .The original Suva petition spught a declaratory judgment naming:
      a) THE SUVA CORPORATION is the owner of the Southwest Quarter of the Southeast Quarter of SectionlO, Township 8 North, Range 11 West, Sabine Parish, Louisiana.
      b) T.W. Hardee Properties, LLC is the owner of the Northeast Quarter of the Southeast Quarter of Section 10, Township 8 North, Range 11 West, Sabine Parish; Louisiana.
      c) Hardee Family Properties, LLC is the owner [of] the Northwest Quarter of the Southeast Quarter of Section 10, Township 8 North, Range 11 West, Sabine Parish, Louisiana. •

      .- That exception was granted finding that any claims the plaintiffs-in-reconvention may have had against the defendants-in-reconvention were barred by liberative prescription of ten years. ,

      . Later, the trial court vacated the judgment granting the defendants' peremptory exceptions of prescription and no cause of action and denied the exceptions based on its underlying findings that plaintiffs had no loiowl-¿dge of the subject property until 2010 and, therefore, prescription could not have begun to run until then.

      . We note that there are various descriptions of the disputed property in the record. Prior to the trial court’s ruling, it requested "precise descriptions of the subject properties each party understands is at issue.” The trial court’s judgment described the disputed property as:
      The West Half of the Southwest Quarter of the Southwest Quarter of Section 1 and the Southwest Quarter of the Southwest Quarter of Section 3, all in Township 8 North, Range 11 West, Sabine Parish, Louisiana
      and
      The Southeast Quarter of the Southwest Quarter of Section 3, Township 8 North, Range 11 West, Sabine Parish, Louisiana.

      . The contract refers to the “Party of the First Part,” i.e., Hugh and the "Party of the Second Part,” i.e., Thomas. For ease of reference we will use their names rather than this language.

      . The parties stipulate that this tract, located in Section 15, is not in dispute,

      . We note that there are multiple spacing and typographical errors related'to the use of a manual typewriter that do not affect substance, which w.e have taken the liberty of correcting for ease of reading,

      . More particularly, the lease in favor of Shelly Oil Company covered: ,
      The North Half of the Southeast quarter and the Southwest quarter of the Southeast quarter of Section 10, Township 8 North, Range 11 West[.]

      .We note that there are multiple spacing errors related to the use of a manual typewriter that do not affect substance, which we have taken the liberty of correcting for ease of reading.


author: JUDGE SANDRA CABRINA JENKINS LOBRANO, J.,

text:
    STATE of Louisiana v. William J. BROWN
    NO. 2017-KA-0124
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 12, 2017

      Leon A. Cannizzaro, Jr,, District Attorney, Scott G. Vincent, Assistant District Attorney, ORLEANS PARISH, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
    Paul J. Barker, Martin Edward Regan, Jr., Graham daPonte, REGAN LAW, PLC, 2125 St. Charles Avenue, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT .
    (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, and Judge Paula A. Brown)
   JUDGE SANDRA CABRINA JENKINS

| ¡.The defendant appeals his conviction and sentence for aggravated assault with a firearm. - Defendant’s conviction and sentence are affirmed.

Statement of Case and Facts

After a jury trial, the defendant was found guilty as charged of aggravated assault with a firearm, La. R.S; 14: 37.4. He was sentenced on May 3, 2016, to five years at hard labor and fined $10,000.00.

Dale Collie, the victim in this case, was hired by the defendant as a subcontractor to clear, clean and haul away debris. Mr. Collie has been the owner of a construction and demolition company since 1995. It was his practice to subcontract with other companies to perform various jobs. Mr. Collie began working with the defendant after Hurricane Katrina. In August 2015, the defendant obtained a contract with Covenant House to clear and haul away debris in the Ninth Ward. The defendant subcontracted some of the work to Mr. Collie. |aThe agreement was to haul, the debris for $10,000.00 which equated to approximately seven days worth of work.

Approximately one week after completion of the work, the defendant tendered a $2,500.00 check to Mr. -Collie which, when he attempted to cash, was declined for non-sufficient funds. The very next day, Mr. Collie saw the defendant driving on Gentilly Boulevard and followed him to obtain an explanation for the bad check. The defendant turned onto a, side street and stopped. Mr. Collie pulled up behind -the defendant’s vehicle. The defendant exited his truck and approached Mr. Collie’s vehicle. As the defendant approached, Mr. Collie activated the record function on his cell phone. The defendant opened Mr. Collie’s door and placed a gun in his side. An argument ensued and the defendant cocked his weapon twice during the verbal exchange.

Later, Mr. Collie went to the police-station to file a report of the incident. While Mr. .Collie was at the police station, he learned that the defendant had called 911 earlier and reported him as the armed assailant. Mr. Collie and the defendant were actually at the police station at the same time filing complaints against one another. The police officers placed Mr. Collie and defendant in separate rooms. After listening to the cellphone recording made by Mr. Collie, the officers arrested the defendant.

The defendant testified at trial. He explained that he was a contractor and had done work for Covenant House in August/September 2015, primarily clearing and removing debris from blighted property in the Ninth Ward. The defendant acknowledged subcontracting some of the work to Mr. Collie for $10,000.00. The defendant billed Covenant House approximately $17,000.00 for the work to be performed. The defendant acknowledged that Mr. Collie performed the work he |4had been subcontracted to do, and the defendant gave him a $2,500.00 check on September 11, 2015, with the express instruction that the victim was not to negotiate the check until the defendant notified him there were sufficient funds in his account to cover the check. He explained that Mr. Collie attempted to cash the check the following morning, despite instructions not to do so. The bank refused the check due to non-sufficient funds.

The defendant admitted that he had a verbal confrontation on Sunday, September 13, 2015, over non-payment. He admitted “going off’ on Mr. Collie and getting into his face, telling him, “I done killed two or three people” but characterized that as “just talk sh?t.”

The defendant denied brandishing a gun during the confrontation. He verified that he' filed a complaint against Mr. Collie, but said the police arrested him.

SUFFICIENCY OF EVIDENCE

The defendant-assigns as-error the sufficiency of the evidence as well as other instances of alleged trial error.

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts apply the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, the appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that all of the elements of the, offense had been proven beyond a reasonable doubt. Id.; State v. Tate, 01-1658, p. 4 (La. 5/20/03), 851 So.2d 921, 928. The reviewing court must consider the whole record, just as the rational trier - of fact considers all of the evidence, and the actual trier of fact is presumed to have acted rationally. State v. Mussall, 523 5So.2d 1305, 1310 (La. 1988). “If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted;” State v. Egana, 97-0318, p. 6 (La. App. 4 Cir. 12/3/97), 703 So.2d 223, 228; State v. Green, 588 So.2d 757, 758 (La. App. 4th Cir. 1991); Mussall, supra. It is not the function of the appellate court to assess the credibility of witnesses' or reweigh the evidence. State v. Scott, 12-1603, p. 11 (La. App. 4 Cir. 12/23/13), 131 So.3d 501, 508, citing State v. Johnson, 619 So.2d 1102, 1109 (La. App. 4th Cir. 1993). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the trier of fact. Id., citing State v. Brumfield, 93-2404 (La. App. 4 Cir. 6/15/94), 639 So.2d 312, 316. “Moreover, conflicting testimony as to factual matters is a question of weight.of the evidence, not sufficiency; Such a determination rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness.” Id., citing State v. Jones, 537 So.2d 1244, 1249 (La. App. 4th Cir. 1989). “Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion.” State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369, citing State v. Legrand, 02-1462, p. 5 (La. 12/3/03), 864 So.2d 89, 94.

The defendant in this case was convicted of aggravated assault with a firearm. La. R.S. 14:37.4. The defendant cites internal contradictions in the victim’s testimony and the absence of physical evidence in support of his claim that the State presented insufficient evidence to sustain the conviction.

An assault is defined “as an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. |fl14:36. One of the prerequisites for proving an assault, as it relates to the second aspect of the definition of “assault,” with respect to the victim is proving the victim’s reasonable apprehension of receiving a battery. See State v. Rideau, 05-0462 (La. App. 4 Cir. 12/6/06), 947 So.2d 127, 140-141. Aggravated assault is defined as “an assault committed with a dangerous weapon.” La. R.S. 14:37(A).

In order to support a conviction for assault, the State must prove beyond a reasonable doubt: (1) the intent-to-scare mental element' (general intent); (2) conduct by defendant of the sort to arouse a reasonable apprehension of bodily harm; and (3) the resulting apprehension on the part of the victim. State v. De Gruy, 16-0891, p. 12 (La. App. 4 Cir. 4/5/17), 215 So.3d 723, 730, citing State in the Interest of K.M., 14-0306, p. 9 (La. App. 4 Cir. 7/23/14), 146 So.3d 865, 872.

Assault requires proof of only general criminal intent or a showing that the defendant, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2); State v. Hill, 35,013, pp. 5-6 (La. App. 2 Cir. 9/26/01), 796 So.2d 127, 131-32; State v. Johnston, 207 La. 161, 20 So.2d 741, 744-45 (1944). “An offender has the requisite intent when the prohibited result may have reasonably been expected to follow from the offender’s voluntary act, regardless of any subjective desire on his part to have accomplished the result.” De Gruy, 16-0891, p. 13, 215 So.3d at 730, quoting State v. Amps, 15-0954, p. 11 (La. App. 4 Cir. 4/6/16), 192 So.3d 822, 829. To establish the general criminal intent for an. aggravated assault, jurisprudence holds that the act of | pointing a weapon at another person and threatening bodily harm is sufficient to establish the element of intent. See State v. Hill, 47,568, p. 11 (La. App. 2 Cir. 9/26/12), 106 So.3d 617, 624 (finding that aiming a pistol at a victim from point blank range and verbal threatening harm satisfies the level of proof required to susr tain a conviction for aggravated assault); State v. Connors, 432 So.2d 308 (La. App. 5th Cir. 1983) (finding that an aggravated assault occurred when defendant intentionally raised the gun as if to aim at victim and thereby placed the victim in reasonable apprehension of receiving a battery).

The record in this case establishes that the charge against the defendant was based on the allegation he placed a gun in Mr. Collie’s side and told him, “I done killed two or- three people!” During trial, Mr. Collie gave direct testimony to that effect and indicated to the court the manner in which defendant was pointing the gun. Mr. Collie’s testimony also established that defendant’s actions were intended and, in fact, did place him in reasonable apprehension of receiving a battery. Moreover, Mr. Collie’s testimony was buttressed by the recording he made of his encounter with the defendant.

Although the defendant herein denied pointing a gun at the victim, the jury chose to credit the testimony of the State’s witnesses, which, when viewed in the light most favorable to the prosecution, established the defendant’s guilt of aggravated assault with a firearm. Defendant’s assignment is without merit.

CONSTITUTIONALLY EXCESSIVE SENTENCE

The defendant complains his sentence is constitutionally excessive. Specifically, the defendant argues that the imposition of the sentence is an abuse of judicial discretion considering there were no injuries, no discharge of a weapon hand the fact' that the defendant is a first offender with young children and significant ties to the community.

The defendant did not file a motion to reconsider following the trial court’s imposition of sentence. La. C.Cr.P. art. 881.1(E) (providing that the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal or review). However, the defendant did object to the sentence at the sentencing hearing, and this Court has found that a simple objection lodged after sentencing is sufficient to preserve the claim of constitutional exces-siveness. See State v. Amos, 15-0954, p. 14 (La. App. 4 Cir. 4/6/16), 192 So.3d 822, 831.

On appeal, a claim of excessive sentencing is held to.a high standard of review:

Excessive sentences are prohibited under the Eighth Amendment of the United States Constitution and La. Const, art. I, § 20. A sentence may be constitutionally excessive even when the sentence falls within the range permitted by statute. See State v. Sepulvado, 367 So.2d 762, 769 (La.1979). For a sentence to be found excessive, it must be “so grossly disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice.” State v. Cann, 471 So.2d 701, 703 (La.1985). The district court is granted broad sentencing discretion, and we will not overturn the district court’s judgment absent an abuse of that discretion. See State v. Walker, [20] 00-3200, p. 2 (La. 10/12/01), 799 So.2d 461, 462.
To determine whether the district court has abused its broad sentencing discretion; we first discern whether the court took into account the sentencing criteria, listed in La. C.Cr.P. art. 894.1. See Sepulvado, 367 So.2d at 767-768. The district court, while not required to expound on - all factors listed in Article 894.1, is required to take into account both aggravating and mitigating factors. See State v. Square, 433 So.2d 104, 110 (La.1983). Our purpose is not to enforce mechanical compliance by a sentencing judge, but to ensure that there is a factual basis for the sentence imposed. See State v. Batiste, [20] 06-0875, p. 18 (La. App. 4 Cir. 12/20/06), 947 So.2d 810, 820. If 9we find that the district court properly articulated its reasons for the defendant’s sentence, we then determine whether the defendant’s sentence was tailored to both the severity of his crime and his personal situation.

State v. Smith, 11-0664, p. 23-24 (La. App. 4 Cir. 1/30/13), 108 So.3d 376; see State v. Spencer, 14-0003, p. 16 (La. App. 4 Cir. 10/8/14), 151 So.3d 816, 826.

A conviction for aggravated assault with a firearm carries a fine of not more than ten thousand dollars or imprisonment for not more than' ten years, with or without hard labor, or both. La. R.S. 14:37.4(C). In this case, the defendant was sentenced to five years and a $10,000.00 fine was imposed.

At the sentencing hearing in this case, Mr. Collie gave a victim-impact statement setting forth his disappointment in the defendant as someone he had considered a friend.

The defendant also addressed the court, apologizing to Mr. Collie and citing his (the defendant’s) close ties with the city and his efforts mentoring “at-risk” youth. He detailed a proposed blueprint for an amusement park he hoped to construct, and'he requested that the court take into account that he was a' family man ■ and ■ had no • previous criminal history.

In sentencing the defendant, the trial judge cited the defendant's failure to accept responsibility for his actions, the violent and senseless nature of the crime and the use of a dangerous weapon in the commission of the crime. Further, the judge expressed her belief that if the sentence was suspended or probated, ihere was an undue risk that during the period of suspended sentence or probation the defendant would re-offend. The judge opined the defendant would not likely respond affirmatively to probation, that he was in need of correctional treatment in a custodial environment, which would best be provided by commitment to an | ^institution, and that a lesser sentence would deprecate the seriousness of the offense. Finally, although the defendant received the maximum statutory fine permissible, for the conviction, the judge sentenced him to five years, only one-half of the prison term he might have received.

Contrary to the defendant’s assertion as to mitigating factors, the sentencing transcript indicates the judge did consider the defendant’s assertion of familial/community ties, volunteer work and personal attributes. However, she described the defendant’s testimony as an amazing performance, one not worthy of belief. '

The defendant’s sentence is supported by the facts of the case; the defendant placed a gun in the victim’s side and threatened to shoot him. Other circuits have held similar sentences for aggravated assault with a weapon not excessive. See State v. Nailor, 10-1062 (La. App. 5 Cir. 11/15/11), 78 So.3d 816 (five years for aggravated assault with a weapon not excessive); State v. Jackson, 43,818 (La. App. 2 Cir. 1/14/09), 1 So.3d 841 (sentence of four years and three months at hard labor after guilty plea to aggravated assault with a firearm was not excessive). Defendant’s assignment is without merit.

TRIAL COURT’S FAILURE TO RECUSE

The defendant contends the trial judge erred by failing to recuse herself at the sentencing hearing. The defendant argues the trial judge was biased against him at the sentencing hearing because shortly before imposing sentence, the judge revealed she was aware the defendant had been recorded on a jail call attempting to learn from his family member the name of the judge’s husband.

The State contends the issue of judicial bias has not been preserved for appellate review and is raised for the first time on appeal. We agree. See La. 11C.Cr.P. art. 674; State v. Mercadel, 12-0685, p. 14 (La. App. 4 Cir. 7/24/13), 120 So.3d 872, 881-882 (“No. such motion was brought in this case and the issue was not raised in the trial court. As the issue is- being raised for the first time here, it is untimely and can be dismissed as such.”).. This assignment of error will not be considered.

CONCLUSION

. Defendant’s conviction and sentence are affirmed,

AFFIRMED

LOBRANO, J., CONCURS AND ASSIGNS REASONS.

LOBRANO, J.,

CONCURS AND ASSIGNS REASONS.

hi respectfully concur in the majority opinion. I write separately to address how the defendant, William Brown (“Defendant”), preserved his assignment of error arguing that his sentence is excessive. As correctly noted by the majority, Defendant failed to file a motion to reconsider sentence as required by Louisiana Code of Criminal Procedure article 881.1, but did object to the sentence. When a defendant fails to file a La. C.Cr.P. art. 881.1 motion to reconsider sentence but does object, an appellate court’s review of the sentence is limited to a bare review for constitutional excessiveness. State v. Zeitoun, 2017-0366, p. 8 (La. App. 4 Cir. 11/8/17), 231 So.3d 934 citing State v. Mims, 619 So.2d 1059, 1060 (La. 1993)). Accordingly, this Court properly conducts that bare review for constitutional excessiveness in the case sub judice.

      . The minute entry for May 3, 2016, indicates the defendant was sentenced to five years and a “$1,000.00 fine/criminal court fund (CCF)[La. C.Cr.P. art 895.1(B)(2)].”- However, the sentencing transcript reflects that the judge imposed a five-year sentence and a $10,000.00 fine. When there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Bridges, 11-1666 (La. App. 4 Cir. 11/28/12), 104 So.3d 657, 659, citing State v. Lynch, 441 So.2d 732, 734 (La. 1983).

      . A battery is defined, in pertinent part, as "the intentional use of force or violence upon the person of another.” La. R.S. 14:33.

      . La C.Cr.P. art. 674 provides in pertinent part as follows: ,
      A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment,