author: GENOVESE, Judge!

text:
    STATE of Louisiana v. Ronald T. FONTENOT.
    No. 09-624.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Terry J. Johnson, Johnson & Vercher L.L.C., Lake Charles, Louisiana, for Defendant/Appellant, R. T. F.
    John F. DeRosier, District Attorney— Fourteenth Judicial District, Carla S. Si-gler, Assistant District Attorney, Lake Charles, Louisiana, for Appellee, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge!

| Nlie Defendant, Ronald T. Fontenot, pled guilty to three counts of sexual battery, violations of La. R.S. 14:43.1. He was sentenced to ten years at hard labor on each count to run concurrently, without benefit of parole, probation, or suspension of sentence. The Defendant appeals, contending that his sentences are excessive. For the following reasons, we affirm.

FACTS

Between May 1, 2005, and August 31, 2005, the Defendant, age 59 at the time, touched the victim, then a seven-year-old girl, on the buttocks and/or anus with his hand while throwing her into a swimming pool. On a separate and subsequent occasion, while swimming in the pool with the victim, between July 17, 2006, and July 18, 2006, the Defendant again touched the victim more than once on her anus and in her vaginal area. He also admitted that once he inserted his finger into her vagina. The Defendant told the victim not to tell anyone about these occurrences.

The Defendant was indicted on six counts of sexual battery. He originally pled not guilty and then changed his plea to guilty on three counts of sexual battery. The trial court ordered a pre-sentence investigation and set sentencing for June 4, 2008.

The trial court reviewed the pre-sen-tence report as well as a letter from the Defendant’s counsel which included a report of the Defendant’s psychological evaluation by Dr. Maureen Brennan dated January 9, 2007. The trial court indicated that it had received a second letter from Dr. Brennan dated April 29, 2008. The second letter does not appear in the record. Neither the Defendant nor the State cites pas error the trial court’s consideration of this item that is not in the record. The trial court also considered, on behalf of the Defendant, letters from the Defendant’s son and daughter, which likewise do not appear in the record.

The victim’s grandmother testified at the sentencing hearing on the victim’s behalf. The trial court received letters from the victim’s counselor, her cousin, and her parents. A concerned friend also wrote a letter to the trial court, as did the victim. None of these letters appear in the record. At the sentencing hearing, the trial court addressed the aggravating and mitigating factors of La.Code Crim.P. art. 894.1. He noted that the penalty for the Defendant’s crime had increased to provide for a twenty-five-year minimum sentence only a short time after the Defendant committed these offenses.

Dr. Brennan’s January 27, 2009 letter opined that the Defendant could be successfully treated on an outpatient basis. She believed that he represented “little risk to the community at large.” Dr. Brennan suggested “lengthy incarceration can exacerbate the very issues that contributed to the acting out in the first place and actually increase, rather than decrease, the risk to the community.” She recommended five to seven years of probation “to assure the opportunity to address these issues effectively,” and four to five years without incarceration, despite the fact that said recommendations are not allowed by statute.

At the sentencing hearing, the trial court took note of Dr. Brennan’s opinion and the letters submitted on the Defendant’s behalf and stated:

[I]f [the victim] had not told somebody, there’s no telling how many more times [the Defendant] would have improperly touched her and |smaybe he would have ended up exposing himself to her and doing something worse, because I think this is the way those — my understanding is the way child molesters oftentimes bring their victims, by repeatedly touching them and telling them they care about them and those types of things, until they can get themselves in a position where they can do more, and I think that’s what we have here, even though the psychological testing did not indicate that [the Defendant] was a predator, necessarily, he put himself in those positions to where he can do the things that he did to her.
And in your case, — of course, I don’t have anything else before me to indicate this ... but there’s [sic] some studies out there that show for every one child you molest there’s [sic] lots of — that you get caught molesting, that there are many, many others that have been molested and many other victims out there.... And it just seems unlikely that in the 60-something years that you’ve been alive that this is the first time that you’ve ever done something like this.

The trial judge repeated those sentiments at the hearing on the motion to reconsider his sentence, commenting:

I don’t know how knowledgeable Dr. Brennan is about various studies, but I do know that Dr. John Simoneaux in Pineville is a psychologist that treats sex offenders and has indicated through various conferences that I’ve attended where he’s presented that there are studies that show that there are many, many victims that lay in the wake each time an offender is charged; that there are many more victims than just the one that they’re charged with. That’s the studies that I’ve heard him repeat. If Dr. Brennan doesn’t know about those, I’m sure Dr. Simoneaux’s [sic] not making that up, so I’m not going to — yeah, it doesn’t matter to me whether she says she knows about that or not. That’s something that I guess I’m familiar with through conferences that I’ve attended.

The trial court also told the Defendant’s counsel, “[w]e don’t know what he’s done and so I think it’s a good argument to make on behalf of your client because, you know, there’s no proof that he’s ever done that to anyone else ... we don’t know that for sure.... I'mean your client denied at all touching this child at the beginning and then he ended up admitting it. So, you know.”

The trial court sentenced the Defendant to the maximum of ten years at hard Llabor on each of the three counts, without benefit of parole, probation, or suspension of sentence, with the sentences to run concurrently.

ASSIGNMENT OF ERROR

The Defendant asserts that his sentences are excessive on three grounds, the same arguments that he made in his motion to reconsider his sentences. First, the Defendant argues that the trial court refused to accept him as a first offender by making inferences from unknown studies not introduced into evidence without giving the Defendant the opportunity to defend himself against the implication that he had committed these offenses on other, untried occasions. Second, the Defendant argues that the trial court erred in ignoring the goal of rehabilitation as reported by Dr. Brennan, instead, sentencing the Defendant solely for purposes of punishment. Finally, the Defendant contends that the trial court overstated the damage to the victim.

REFERENCE TO STUDIES NOT IN EVIDENCE

The Defendant asserts that the trial court’s comments imply that he did not treat the Defendant as a true first offender with regard to his sentences and based his sentences on studies which he had become familiar with at various conferences. However, the record contains no evidence of any such studies. The trial court’s reference to and apparent reliance on evidence not in the record equates to taking judicial notice of the facts or opinions set out in the unidentified studies.

In order for the trial court to take judicial notice of an adjudicative fact, such as those set out as purported facts or conclusions in the mentioned studies, the fact must be “(1) [generally known within the territorial jurisdiction of the trial court; or (2)[c]apable of accurate and ready determination by resort to sources whose accuracy |scannot reasonably be questioned.” La.Code Evid. art. 201. The “fact” noticed by the court must form a “part of the common knowledge of every person of ordinary understanding and intelligence,” and the “fact” must not be “subject to reasonable dispute^]” Walker v. Halliburton Services, Inc., 93-722, p. 3 (La.App. 3 Cir. 3/1/95), 654 So.2d 365, 368, writ denied, 95-1507 (La.9/22/95), 660 So.2d 481.

The general public is not familiar with the theories of scientific and/or sociological studies like those referred to by the trial court. Further, studies of this type, simply because of their nature, can be highly susceptible to dispute. Thus, we find that the trial court erred in taking judicial notice of and/or referring to unidentified studies not in evidence that suggest that the Defendant may have committed prior acts of sexual battery. However, there is nothing in the record, or in the trial court’s erroneous reference to unidentified studies not in evidence, that indicates that it sentenced the Defendant solely or particularly based on said studies.

This court has set out a standard to be used in reviewing excessive sentence claims:

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

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1[, 3] (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the tidal judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784[, p. 2] (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The nature of the offense here is three counts of sexual battery against a child who was seven and eight years of age when the offenses occurred. The facts of the case indicate that the Defendant’s grandchildren are the cousins of the victim, that the Defendant apparently went through a devastating divorce in 1998, and that he became a loner at that time. The present offenses were his first felony offenses. In 2003, he was fined for DWI. Dr. Brennan did not believe that the Defendant was a predator for whom there is no treatment, but rather, one who could be successfully rehabilitated. As the trial court noted, however, “it doesn’t matter to [the victim], it doesn’t make a difference to her whether [the Defendant is] on the far end of the scale of a sexual predator or whether [he is] an opportunist. She was molested.” The Defendant admitted to three occasions of sexual battery in his plea agreement, but the 17victim, according to counsel for the State, “is insistent that it occurred six times.” Thus, the Defendant potentially gained substantial benefit from his guilty plea.

Sexual battery of a child under the age of thirteen is an offense which our legislature intended to deal with quite seriously. The Defendant pled guilty to these acts occurring between May 1 and August 31, 2005, and July 17-18, 2006. The maximum sentence on those dates was ten years at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:43.1. Only about a month later, on August 15, 2006, a statutory revision became effective, increasing the minimum sentence for sexual battery to twenty-five years at hard labor without benefits and the maximum sentence to life imprisonment. 2006 La. Acts No. 103, § 1. This increase in penalty for sexual battery indicates the legislative intent to deal harshly with those who violate La. R.S. 14:43.1 when a child under the age of thirteen is involved.

The Defendant pled guilty to three counts of sexual battery and was sentenced to the maximum ten years on each count. Had the sentences been imposed consecutively, as they could have been, the Defendant would have been facing thirty years at hard labor. As it is, the concurrent nature of the sentences reduces the Defendant’s possible time in prison by two-thirds. Thus, while the Defendant may correctly say he received the maximum sentence on each count, the concurrent nature of the sentences dramatically reduces the time the Defendant will serve. He will, in effect, serve only one maximum sentence because the sentences were ordered to run concurrently.

The trial court, however, erroneously considered the sentences to equate to three and one-third years on each count. He did not consider the sentences he | simposed to be the maximum allowed. At the hearing of the motion for reconsideration, the trial court stated “[t]he maximum sentence is 30 years. He got 10 years. So he really is on the lower end of the sentencing range that was available to the Court.” Nevertheless, the trial court clearly stated that it sentenced the Defendant “to serve ten (10) years, and that’s without benefit of probation,-on each count concurrent, without benefit of probation, parole, or suspension of sentence.” Though three ten-year sentences served concurrently are not the equivalent of three consecutive sentences of three and one-third years each, we do not find the sentences to be excessive.

Similar cases reflect that the Defendant’s sentences are not excessive. The defendant in State v. Jaramillo, 06-1377 (La.App. 3 Cir. 3/7/07), 953 So.2d 146, writ denied, 07-732 (La.11/2/07), 966 So.2d 600, forced his ten-year-old male victim to perform oral intercourse and touched the victim’s buttocks with his penis. The trial court sentenced the defendant to the maximum ten years.

In State v. Baker, 42,428 (La.App. 2 Cir. 9/19/07), 966 So.2d 124, a twenty-seven-year-old defendant was originally charged with one count of forcible rape and one count of sexual battery for placing his fingers inside the vagina and sucking or biting the breast of his thirteen-year-old victim, a close relative. The defendant was a first felony offender who pled guilty to the sexual battery charge, and the rape charge was dismissed. The second circuit noted that “maximum or near maximum sentences are reserved for the worst offenders and the worst offenses.” Id. at 126. It noted that the defendant, who had two prior misdemeanor convictions for theft and ^disturbing the peace, “took advantage of a family member who was a minor.” Id. at 127. The victim’s mother encouraged the maximum sentence because of the long-term effects of the offense on the victim and the family. The court held that “[t]he sentence [was] tailored to both the offender and the offense.” Id.

The defendant in State v. Davis, 06-922 (La.App. 3 Cir. 12/29/06), 947 So.2d 201, was the live-in boyfriend of the mother of his two minor victims. The defendant touched the pubic, breast, and buttocks areas of the children while they were sleeping. The trial court “considered the [defendant’s pre-sentencing investigation report, the class of offense, the nature of the offense, the seriousness of the offense, the manner in which the crimes were conducted, and [d]efendant’s history” in sentencing the defendant to two ten-year terms at hard labor, to run consecutively. Id. at 203-04. This court affirmed, noting that the consecutive nature of the sentences was appropriate because the offenses “took place at different points in time and with different victims over a three-month period.” Id. at 204.

Here, the victim was a family member, the cousin of the Defendant’s grandchildren. The victim’s grandmother testified at the sentencing hearing that the Defendant’s actions had torn apart their family. The Defendant violated a relationship of trust with the victim and then told her not to tell anyone. In State v. Kirsch, 02-993, p. 8 (La.App. 1 Cir. 12/20/02), 836 So.2d 390, 395, writ denied, 03-238 (La.9/5/03), 852 So.2d 1024, the court stated, “[t]he jurisprudence indicates that maximum, or nearly maximum, terms of imprisonment may not be excessive when the defendant has exploited a position of trust to commit sexual battery or indecent behavior with a juvenile.” Here, the trial court considered the victim’s age, vulnerability, and relation to the Defendant as aggravating factors. In the case at bar, 110the totality of these circumstances justifies the imposition of the maximum sentence. The facts show that the three concurrent ten-year sentences at hard labor, without benefit of parole, probation, or suspension of sentence, are not excessive, even considering the Defendant’s status as a first offender, and even disregarding the unidentified studies to which the trial judge referred.

SENTENCING FOR PUNISHMENT VS. REHABILITATION

The Defendant argues that the trial court erred in viewing the purpose of La. R.S. 14:43.1 as being for punishment only, thereby ignoring the goal of rehabilitation despite the report of Dr. Maureen Brennan. For the reasons set forth above, we find that the Defendant’s sentences are not excessive. The trial court considered Dr. Brennan’s letter and sentenced the Defendant to a total of ten years at hard labor rather than the possible total of thirty years to which he could have sentenced that the Defendant by imposing consecutive sentences. The Defendant’s sentence does not ignore the goal of rehabilitation, but rather enforces the legislative purpose to provide severe penalties for sex offenders.

OVERSTATED DAMAGE TO THE VICTIM

Lastly, the Defendant argues that the trial court erred in sentencing him because it overstated the damage to the victim. According to the Defendant, the victim has continued to do well in school and has required only six months of counseling at a cost of $315. The Defendant complains of the trial court’s comments at the sentencing hearing:

[T]hat child is going to suffer in the future. That child is going to have — -we won’t know for years and years and years the impact of what [the Defendant] did to her is going to have on her.... [I]t oftentimes leads to these— you know, to drug abuse, trying to put that out of their minds, | ndrug addiction, promiscuity, difficulty in relationships, having a hard — not trusting men, just all kind of problems that will last the rest of her life. And so she’s been scarred for life....

The Defendant argues, “[i]f the victim was damaged as much as the court describes, there would be ongoing psychological counseling and extensive treatment.”

The trial court correctly noted that the fact that the victim is still able to make good grades in school is to her credit, not to the Defendant’s credit. The cases cited above do not indicate the level of damage experienced by the victims; they deal with the offenses and the offenders. The alleged lack of damage to the victim does not render the Defendant’s sentences excessive.

CONCLUSION

We find that the trial court erred by referring to studies not in evidence. However, disregarding said studies entirely, we find that the facts in this case adequately support the trial court’s sentencing of the Defendant to three concurrent ten-year terms at hard labor, without benefit of parole, probation, or suspension of sentence for three incidents of sexual battery against this victim, who was seven and eight years of age at the time of the offenses. The nature of the Defendant’s offenses, the legislative intent to deal harshly with sex offenders, and the prior case law support the sentences imposed by the trial court, even for a first offender. Consequently, we find that the Defendant’s sentences are not excessive.

DISPOSITION

The Defendant’s sentences are affirmed in all respects.

AFFIRMED.

      . Although the trial court referred to a letter dated January 9, 2007, a letter from Dr. Brennan dated "27 January 2009” was admitted into evidence at the hearing on the motion to reconsider sentence.

      . 2006 La. Acts No. 103, § 1, effective August 15, 2006, increased the penalty for sexual battery of a child under the age of thirteen from a maximum of ten years to a minimum of twenty-five years.

      . The Jaramillo defendant did not allege on appeal that his maximum sentence was excessive, but rather claimed that the evidence was insufficient to convict him. Thus, the opinion does not analyze why the maximum sentence was imposed.

      . The trial court indicated that this argument “shocked” him.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    MORENO PROPERTIES TWO, L.L.C. v. ACADIANA INVESTMENT GROUP, L.L.C., et al.
    No. 09-634.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Marc W. Judiee, Judice & Adley, Lafayette, LA for Defendant/Appellee-Acadiana Investment Group, L.L.C.
    Nicholas Francis LaRocca, Jr. Morgan City, LA, for Other Appellant-Charles Richard.
    John William Kolwe, Kyle M. Bacon, Longman Russo Jones, Walker, Waechter, Poitevent, Carrére & Denégre, L.L.P., Lafayette, LA, for Plaintiffs/Appellees-Dy-namic Industries, Inc., Michel B. Moreno, Moreno Properties Two, L.L.C., and James Sandlin.
    Timothy Wayne Basden, Breaud & Meyers, Lafayette, LA, for: Defendant/Appel-lee-Bart Broussard.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

1 lAppellant, Charles Richard, asserts that the trial court erred by granting a summary judgement in favor of Michel Moreno and two out of three companies he owns, Moreno Properties, L.L.C. and Dynamic Industries, Inc. (collectively, “dismissed appellees”). The trial court found that there was no genuine issue of material fact with respect to Richard’s claim of contract breach against the dismissed ap-pellees. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether Richard can defeat the dismissed appellees’ motion for summary judgment where the dismissed appellees did not sign and did not, in writing, authorize an agent to sign for them the allegedly breached contract to buy Richard’s property and where limited discovery preceded the summary judgment.

II.

FACTS AND PROCEDURAL HISTORY

This dispute arises out of a failed real estate transaction. Richard, as the seller, and James E. Sandlin, as the buyer, signed an agreement, effective May 1, 2007, to purchase and sell commercial property that Richard owned in Iberia Parish. On May 7, 2007, the required $50,000 deposit, drawn on the account of Moreno Properties Two, L.L.C. (MP II), was issued. The agreement provided for a sixty-day contingency period during which the purchaser had to undertake various inspections of the property. If the purchaser was not satisfied with the result of these inspections, the purchaser had the right to cancel the agreement during the contingency period by submitting a written notice of the cancellation.

[■¿Immediately before the contingency period expired, on June 29, 2007, Sandlin signed an addendum to the agreement that would have extended the contingency period by forty-five days. Richard never signed this addendum. In his affidavit, Sandlin stated that, based on the representations of the real estate agent, he considered the agreement cancelled if Richard did not sign the addendum. Yet, neither he nor the agent submitted a written cancellation notice during the contingency period.

Around July 19, 2007, Sandlin and Richard, along with their real estate agents, had a meeting. Sandlin’s affidavit indicated that, from this meeting, he understood Richard agreed to extend the contingency period and either signed or would be signing the addendum. On the other hand, Richard’s interrogatory response indicated that the meeting was to schedule the closing date. Richard further stated that he emphatically refused to extend the contingency period.

On August 8, 2007, Sandlin signed a release from the agreement and sent it to Richard’s agent. Richard refused to sign the release. In his response to an interrogatory, Richard stated that the transaction was never cancelled and that the purchaser merely breached the contract. Richard also noted that he never signed an extension and denied twice the purchaser’s request to extend the contingency period.

MP II, claiming that it terminated the agreement according to its terms, filed this suit against Richard and his agent, Acadia-na Investment Group L.L.C. (Acadiana), for the return of the $50,000 deposit. MP II claimed that Sandlin acted as its agent when he signed the agreement. Although Sandlin did not have a written mandate to purchase this property, Moreno Properties, L.L.C., the sole member of MP II, through its manager, Michel Moreno, signed a document, dated December 11, 2008, by which it ratified and adopted acts of Sandlin as the acts of MP II.

| ¿Acadiana petitioned for concursus, naming MP II and Richard as the defendants-in-reconvention. Relieving Acadiana of any liability with respect to the $50,000 deposit, the trial court ordered Acadiana to deposit $50,000 into the court’s registry and ordered defendants-in-reconvention to assert their claims against each other.

Richard answered MP II’s petition and asserted a cross claim against Michel Moreno and Moreno Properties, L.L.C., claiming that he entered into the purchase and sale agreement with Michel Moreno. Asserting that Moreno breached the agreement by failing to conclude the purchase of the property, Richard sought specific performance or damages according to the agreement. Richard then answered Aca-diana’s concursus petition and cross-claimed for negligence against Acadiana. Richard asserted that Acadiana’s broker represented to him that Michel Moreno was the purchaser of the property. Richard stated, in his answer to an interrogatory, that Michel Moreno signed the original offer to buy the property that Richard rejected. Based on Acadiana’s representation and the circumstances of the original offer to buy, Richard alleged that he signed the agreement with the purchaser’s name blank, thinking that he was transacting with Michel Moreno.

After the parties filed various exceptions, as well as additional and amending pleadings, Richard’s cross claim was asserted against Sandlin, Michel Moreno and two of his three companies, Moreno Properties, L.L.C. and Dynamic Industries, Inc. Depositions of several individuals, including Michel Moreno and Sandlin, were scheduled for March 16 and 17 of 2009. On December 17, 2008, the dismissed ap-pellees and Sandlin filed a motion for summary judgment. Richard filed a motion to continue the hearing on the motion for summary judgment until after the scheduled depositions and further written discovery take place. The trial court denied |4the motion to continue and granted a summary judgment in favor of all of the movants except Sandlin.

Richard appealed, arguing that the summary judgment was premature. Pointing to La.Code Civ.P. art. 966 C(l) that requires adequate discovery prior to summary judgment, Richard asserted that discovery was not adequate because oral depositions of key witnesses and parties were not undertaken and much of the written discovery remained to be carried out. Richard also asserted that because the discovery would proceed as scheduled despite the dismissal of some parties, there would be no prejudice in postponing the hearing. Moreover, Richard argued that additional discovery may produce evidence of fraud, an exception to the parol evidence rule. Finally, Richard contended that the grant of summary judgment was an error because there were genuine issues of material fact.

The dismissed appellees, on the other hand, argued that Louisiana law requires a sale or promise of a sale of an immovable to be in writing. They asserted that Richard can point to no agreement where the dismissed appellees signed a promise to buy the property. Therefore, the dismissed appellees maintained, further discovery was not necessary for summary judgment purposes. The dismissed appel-lees further argued that a mandate to buy an immovable must also be in writing. Thus, because Richard could not establish that the dismissed appellees gave a written mandate nor that further discovery would produce such documents, they were entitled to judgment as a matter of law.

join.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327. The denial of a motion to continue in order to complete discovery prior to an action on a motion for summary judgment the appellate courts review for abuse of discretion. Trahan v. State Through Dep’t of Health & Hosps., 95-320 (La.App. 3 Cir. 10/4/95), 663 So.2d 242.

IV.

LAW AND DISCUSSION

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “After adequate discovery!,] ... a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La.Code Civ.P. art. 966(C)(1). The initial burden of proof to show there is no genuine issue of material fact remains with the movant. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228. If the movant has made a prima facie case that the motion should be granted, the burden shifts to the adverse party to produce enough evidence to show that some issues of material fact remain. Id. If the non-moving party fails to produce the evidence, the court must grant the motion as a matter of law. Id.

“A sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided in Article 1839.” | nLa.Civ.Code art. 2440. “A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.” La. Civ.Code art. 1839.

“When the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen.” La.Civ.Code art. 1832. “Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent....” La.Civ.Code art. 1848. Fraud is one of the vices of consent. La.Civ.Code art. 1948.

“[W]hen the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.” La.Civ. Code art. 2993. Finally, “an appellate court may not decide issues the trial court did not consider.” Ducote v. Union Pac. R.R. Co., 08-1208 (La.App. 3 Cir. 2/4/09), 4 So.3d 240, writ denied, 09-940 (La.6/5/09), 9 So.3d 877 (citing Gorham v. Mathieson Alkali Works, Inc., 210 La. 462, 27 So.2d 299 (1946)).

Here, the dismissed appellees established their prima facie case that they were not parties to the contract to buy Richard’s property because they did not sign Richard’s offer to sell. The burden then shifted to Richard to produce some evidence that would indicate there was a genuine issue of fact for trial. While Richard made several arguments, he produced no such evidence. For example, Richard stated that the depositions of key witnesses in this case, Michel Moreno and Sandlin, may produce confessions that the dismissed appellees were, in fact, parties to the contract at issue. These confessions would, in turn, support the exception to the requirement 17that the contract involving an immovable be in writing. This court finds that this potential eventuality does not satisfy Richard’s burden of 'production.

Richard further argued that the actions of the buyer(s) in this case were “tantamount to fraud.” Richard alleged that because fraud is one of the exceptions to the parol evidence rule, that dismissed appellees did not sign the contract was not dispositive of his claims against them. Yet, Richard did not allege fraud in his petition, thus preventing the trial court’s consideration of the issue. Therefore, we do not review it on appeal.

It is true that further discovery in this case was going to proceed regardless of the decision on this summary judgment motion. Furthermore, we agree with Richard that because no prejudice would have resulted, postponing the decision on this motion until after the depositions took place would have been more economical, prudent, and practical. Nonetheless, the trial courts have wide discretion in determining the adequacy of discovery. Because Richard did not sustain his burden of production, we do not find abuse of that discretion here.

Based on the considerations above, we do not find an error in the trial court’s grant of summary judgment in favor of the dismissed appellees.

V.

CONCLUSION

Summary judgment in favor of Moreno Properties, L.L.C., Dynamic Industries, Inc., and Michel Moreno is affirmed. Costs of this appeal are assessed to Charles Richard.

AFFIRMED.


author: DECUIR, Judge.

text:
    CITY of DeQUINCY v. Randy James HENRY.
    No. 09-636.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Steven Broussard, Broussard & Hart, LLC, Lake Charles, LA, for Defendant/Appellee, Randy James Henry.
    Christopher R. Philipp, Attorney at Law, Lafayette, LA, for Plaintifi/Appel-lant, City of DeQuincy.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

| |This workers’ compensation appeal was brought by an employer, the City of De-Quincy, after its injured employee, Randy James Henry, successfully mediated a resolution of his third-party tort suit against CLECO Utility Group, Inc. The City sought to terminate all workers’ compensation benefits, including future medical expenses, based on the allegation that Henry failed to obtain written approval of the settlement, thereby invoking the forfeiture provision of the workers’ compensation statute. The trial court denied the City’s motion to terminate benefits, found the City approved the settlement between Henry and CLECO, and denied the City’s request for a credit against future medical expenses. For the following reasons, we affirm.

On November 26, 2000, while investigating the scene of an automobile accident, Henry, a patrolman with the City of De-Quincy, came into contact with a live electrical transmission wire belonging to CLE-CO. As a result, Henry suffered severe, totally disabling injuries. The City, through the Louisiana Municipal Risk Management Agency (RMI), initiated workers’ compensation benefits. Henry filed a tort suit against CLECO, and the City intervened to recover the benefits paid to and on behalf of Henry. By the time of the mediated settlement at issue before us, the amount of indemnity and medical benefits paid totaled $481,567.47. Information in the sparse record before us indicates that future medical expenses will be substantial for this forty-nine-year-old former police officer who will apparently never work again.

After nine years of litigation, two prior visits to this court (see Henry v. Barlow, 04-1657 (La.App. 3 Cir. 5/4/05), 901 So.2d 1207, and Henry v. Barlow and CLECO, 06-283 (La.App. 3 Cir. 8/9/06), 937 So.2d 895, writ denied, 06-2592 (La.1/12/07), 948 So.2d 153), and several writs to the supreme court, the parties finally 1 ^agreed to settle their differences with the help of a mediator. A date and time were scheduled and the mediator was selected. The City and its attorney, as well as RMI, were made aware of the upcoming mediation but specifically declined to attend. By email, however, the City agreed to waive one-third of its lien for attorney fees “to make the case settle,” and forwarded to the mediator a document showing the exact amount of its lien as of the morning of the mediation. The City asked for no other concessions. During the course of the mediation, Henry and CLECO agreed to a full satisfaction of the City’s lien, minus one-third for attorney fees, exactly what the City requested. The parties also agreed that Henry would have the right to allocate the settlement funds as he saw fit; consequently, no portion of the settlement funds were allocated for future medical expenses and $235,500.00 were allocated to Henry’s wife and children as loss of consortium damages. In the days following the successful mediation, the City’s attorney congratulated CLECO’s attorney on the settlement.

The City then asserted a claim for a credit against Henry’s net proceeds in the settlement for all future disability and medical payments. When Henry disagreed with the City’s claim for a credit for future medical expenses, the City made the assertion that no written approval of the settlement had been given, and if Henry proceeded without that approval, he would forfeit all future compensation benefits. Henry did not dispute the City’s right to a credit for future indemnity benefits. Henry then petitioned the court to declare the settlement approved; in response, the City sought judicial approval to terminate benefits. Once this litigation was initiated, the City released CLECO from all claims in exchange for a payment of $321,045.25, the full amount of its workers’ compensation lien less one-third for attorney fees.

| sIn cases involving settlement with a third party tortfeasor, the rights of an employer and workers’ compensation insurer are governed by La. R.S. 23:1102, which provides in pertinent part:

B. If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise. Written approval of the compromise must be obtained from the employer if the employer is self-insured, either in whole or in part. If the employee or his dependent fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including medical expenses. Notwithstanding the failure of the employer to approve such compromise, the employee’s or dependent’s right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise; except in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise. Such reservation shall only apply after the employer or insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim.
C. (1) When a suit has been filed against a third party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B of this Section. Notwithstanding such payment, all rights of the 14employer or his insurer to assert the defense provided herein against the employee’s claim for future compensation or medical benefits shall be reserved.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error standard, the appellate court determines whether the fact finder’s conclusion was reasonable, not whether the trier of fact was right or wrong. Id. “[E]ven where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety.” Winford v. Conerly Corp., 04-1278, p. 15-16 (La.3/11/05), 897 So.2d 560, 569-70.

Upon review, we will not set aside the factual findings of the workers’ compensation judge in the absence of manifest error. After taking the case under advisement, the trial court reached the following conclusions. First, the court specifically found the City had given prior written approval, via letters and emails, of the settlement between Henry and CLE-CO. Our review of the documentary evidence in the record reveals no manifest error in this factual conclusion. Prior to the mediated settlement, the City communicated its position regarding its lien, and Henry and CLECO proceeded with reliance on that position. Second, the court ruled that the City’s credit for future compensation will not extend to future medical expenses. In support of this ruling, the court cited Breaux v. Dauterive Hosp. Corp., 02-1072 (La.App. 3 Cir. 2/5/03), 838 So.2d 109, which we acknowledge is a correct statement of the law: “[T]he workers’ compensation insurer is not entitled to a credit for future medical benefits, even when the amount, which the third party tortfeasor |spaid in settlement, exceeds that sufficient to reimburse the compensation carrier.” Id. at 112. Third, the court calculated a credit in favor of the City in the amount of $2,054,758.10, which reflected a deduction from the settlement proceeds of the loss of consortium damages apportioned to Henry’s wife and children. The record discloses no manifest error in this calculation. Here, the loss of consortium damages represent only a small percentage of the entire settlement; by contrast, the court may have had reason to question the settlement apportionment had the consortium damages been out of proportion to the total settlement. (See, for example, Miller v. La. Farm Bureau Cas. Ins. Co., 95-1087 (La.App. 3 Cir. 3/6/96), 670 So.2d 622, where the entire $77,500.00 settlement was designated as loss of consortium damages in favor of the tort victim’s minor son.)

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the City of DeQuiney and RMI.

AFFIRMED.


text:
    Roshawn PETE v. QUALITY CONSTRUCTION SPECIALISTS AND BRIDGEFIELD CASUALTY INSURANCE COMPANY.
    No. 09-642.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Mark Alfred Ackal, Lafayette, LA, for Defendant/Appellant, Quality Construction Specialists.
    Craig Alan Davis, Lafayette, LA, for Plaintiff/Appellee, Roshawn Pete.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

| defendant-appellants, Quality Construction Specialists and Bridgefield Casualty Insurance Company, assert that the Office of Workers’ Compensation (OWC) was manifestly erroneous by finding that (1) Quality’s employee, Roshawn Pete, proved he had a job-related accident, and (2) Pete was entitled to penalties and attorney fees. Pete answers the appeal, requesting attorney fees for the work on this appeal and asking this court to amend the OWC’s judgment as it contains a clerical error. For the following reasons, we amend the OWC’s judgment and, as amended, affirm.

I.

ISSUES

We shall consider whether:

(1) the Workers’ Compensation Judge (WCJ) committed a manifest error by concluding that an employee had an accident in the course and scope of his employment, where the employee alleged that his cousin witnessed the accident, and where the cousin, three years after the accident, denied witnessing it; and,
(2) the WCJ committed a manifest error by awarding the employee attorney fees and penalties for three different infractions where the insurer:
(a) within sixty days of the request’s submission, denied the physician-recommended medical procedure, but approved it one day after the employee retained an attorney and filed a disputed claim for compensation; and,
(b) did not approve two different medical consultations in excess of six months after the recommending physician faxed his recommendations to the insurer.

JJI.

FACTS

Pete started working for Quality in October of 2004. On April 15, 2005, Pete claimed he injured his back while in the course and scope of his employment. Pete testified that when he attempted to pick up a manhole cover that weighed about two hundred pounds, he felt pain in his back, fell to his knees and then forward into the bucket of a front-end loader. Pete testified that his cousin, who was also a coworker, witnessed the accident and turned Pete over from his stomach to his back. The cousin then, according to Pete, summoned the supervisor, Mike Gentry, who, along with the cousin, lifted Pete up and brought him to the car. Over three years after the accident, Pete’s cousin testified at the OWC hearing that he did not witness the accident and did not help Pete to the car.

One day after the accident, Pete sought and received emergency room treatment. He was taken off work and told to follow up with his personal physician. Subsequent doctor visits and an MRI revealed that Pete had a disc herniation. After unsuccessful therapy, massage, and pain medication, Dr. Ilyas Munshi, a neurological surgeon, recommended a discectomy that he performed in August of 2005.

Although Pete continued to experience back pain, Dr. Munshi reported that Pete could return to light-duty work. Pete returned to work on January 30, 2006, but he soon discovered that he could not perform the light-duty work Quality assigned him to do. He informed Quality that he could not physically perform his duties and has not attempted to work since.

On June 28, 2006, Pete saw Dr. Michel Heard, a local orthopedist, who concluded that Pete suffered from severe back and right radiculitis that prevented Pete from working in any capacity. Dr. Heard recommended, among other things, a |;iLumbar Epidural Steroid Injection (LESI) series. According to Dr. Heard’s records, an insurance adjuster denied the recommended LESI series on July 14, 2006. On August 9, 2006, Pete filed a disputed claim for compensation. On August 10, 2006, the insurance adjuster reversed her previous position and approved the LESI series. Dr. Heard subsequently recommended two more LESI series that the insurance adjuster treated in the same manner, first denying and then approving the treatment.

Dr. Heard’s records of January 22, 2007 indicate that as of that date, Dr. Heard was waiting for the insurance adjuster’s approval of two consultations he recommended. The first consultation would have been with Dr. Mark McDonnell, a spine surgeon. The second recommendation was to consult with a pain management specialist, Dr. Steven Staires. In the same report, Dr. Heard noted that Pete may need a discogram.

On February 28, 2007, at the defendants’ initiation, Pete saw Dr. Gregory Gidman for a second medical opinion. Dr. Gidman concluded that Pete would not benefit from any further surgical intervention and that a discogram would not provide any useful information. Based on these conclusions, the insurance adjuster did not approve the recommended consultations.

Because of Dr. Heard and Dr. Gidman’s inconsistent recommendations regarding a discogram, Bridgefield requested an independent medical examination of Pete that Dr. Peter Vizzi performed on June 28, 2007. Dr. Vizzi concluded that a disco-gram and a CT myelogram would provide additional information about Pete’s condition. Dr. Vizzi also noted that, depending on the information gained from these procedures, Pete may need a second surgery.

After the insurance adjuster approved a discogram in August of 2007, Dr. Staires performed the procedure on August 21, 2007. The consultation with the |4spine surgeon, Dr. McDonnell, whom Dr. Heard recommended in January of 2007, had to await the adjuster’s approval even longer until the consultation took place on October 2, 2007.

At the hearing, the WCJ held that the defendants committed three infractions and awarded penalties in the amount of two thousand dollars per infraction. The WCJ also ordered the defendants to pay seven thousand dollars in Pete’s attorney fees. In his reasons for judgment, the WCJ stated that the denial of the first LESI series was arbitrary and capricious. As the WCJ explained, no one could fault an adjuster who denied treatment for a good cause but, after receiving more information, changed her mind. Noting that the record did not supply a valid reason for the denial and that defendants failed to produce the adjuster at the hearing so as to ascertain whether the denial was warranted, the WCJ concluded that the denial was arbitrary and capricious. Although the adjuster ultimately approved the treatment within the statutory sixty day period, Pete had already undergone the expense of retaining counsel and filing the disputed claim for compensation based on the denial. The WCJ stated that the determination of the adjuster’s reasons for denial was essential because, otherwise, the adjuster could deny the treatment, approve it the next week, then deny again, and repeat the same pattern for sixty days.

The WCJ further held that the defendants supplied no adequate explanation for the denial of recommended consultations with the spine surgeon and the pain management specialist. The WCJ found no support for the delay based upon Dr. Gid-man’s opinion.

In his written judgment, the WCJ awarded Pete only two penalties of two thousand dollars each and seven thousand dollars in attorney fees. Quality and Bridgefield appealed, claiming that the WCJ committed manifest errors by | r,concluding that Pete proved he had an accident in the course and scope of his employment and by imposing penalties and attorney fees upon them. Pete answered the appeal stating that the OWC’s judgment contained a clerical error as to the number of penalties. Pete requested this court to correct the error and to award an increase in attorney fees for the work on this appeal.

III.

STANDARD OF REVIEW

The WCJ’s findings of fact are reviewed under the “manifest error” or “clearly wrong” standard. Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239. The appellate courts do not disturb the WCJ’s findings of fact as long as they are reasonable and supported by the record. Id. Finally, the WCJ’s imposition of penalties and attorney fees upon an employer are likewise findings of fact subject to the manifest error standard. Guilbeau, 934 So.2d 239.

IV.

LAW AND DISCUSSION

(1) The Occurrence of a Work-related Accident

The determination as to whether an accident occurred involves a judgment of credibility to which an appellate court gives great deference on review. Francis v. BFI, 01-769 (La.App. 3 Cir. 12/12/01), 801 So.2d 604, writ denied, 02-101 (La.3/22/02), 811 So.2d 934. Thus, the appellate court may find manifest error in a credibility determination where the “objective evidence so contradicts an employee’s testimony, or testimony is so internally inconsistent or implausible on its face that a reasonable factfinder would discredit the story....” Butterfield v. Turner Indus., 06-1098, p. 6 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, 480, writ denied,, 07-507 (La.4/27/07), 955 So.2d 692 (quoting Hubbard v. Allied Bldg. Stores, Inc., 41,534, p. 5 (La.App. 2 Cir. 11/1/06), 942 So.2d 639, 643).

Here, Pete testified that his coworker cousin witnessed the accident and helped him to the car afterward. The cousin testified that he did not witness the accident and did not help Pete. The WCJ apparently determined that Pete’s testimony, supported by contemporaneous medical and other evidence, was more credible. Considering that the cousin provided his testimony over three years after the accident, we find no error in the WCJ’s decision to accord this testimony less weight than Pete’s account of the events and his medical and other evidence. Therefore, the WCJ was not manifestly erroneous by concluding that the accident in the course and scope of Pete’s employment occurred.

(2) Penalties and Attorney Fees

If the employer or insurer fails to pay medical benefits within sixty days after the employer or insurer receives written notice thereof, the employee is entitled to penalties and reasonable attorney fees unless the employee’s claim is reasonably controverted. See La. R.S. 23:1201. Our jurisprudence has applied these sanctions not only where the employer or insurer failed to pay benefits, but also where the employer or insurer failed to authorize a medical procedure, subsequently deemed necessary, within sixty days of notice. Lambert v. Brookshire Grocery Co., 06-1001 (La.App. 3 Cir. 12/20/06), 945 So.2d 918.

An employer could reasonably controvert a claim if the employer “engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant....” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. The employer or insurer has a continuing duty to investigate the 17employee’s claim and to assess factual information before the denial of benefits. Penn v. Wal-Mart Stores, Inc., 93-1262 (La.App. 3 Cir. 6/15/94), 638 So.2d 1123, writ denied, 94-1835 (La.10/28/94), 644 So.2d 651. Thus, a failure to investigate the employee’s claim subjects the employer or insurer to penalties and attorney fees. McClendon v. Keith Hutchinson Logging, 96-2373 (La.App. 1 Cir. 11/7/97), 702 So.2d 1164, writ denied, 97-2872 (La.2/13/98), 706 So.2d 995. Moreover, “a workers’ compensation claimant is entitled to an increase in attorney fees for time incurred in defending an employer’s unsuccessful appeal.” Warren v. Maddox Hauling, 02-733, p. 6 (La.App. 3 Cir. 12/4/02), 832 So.2d 1082, 1087, writ denied, 03-4 (La.4/21/03), 841 So.2d 791. Finally, “[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” La.Code Civ.P. art. 2164.

Here, with respect to the first LESI series, the defendants argue that because they ultimately authorized the treatment within the statutory sixty-day period, the WCJ committed a manifest error by imposing the penalty. Yet, the issue here is whether the insurance adjuster possessed factual and/or medical information to reasonably deny authorization for the treatment. Because the insurers and/or employers have a duty to investigate prior to the denial, it is reasonable for an employee to assume that the insurer was not arbitrary and capricious when it denied the employee’s claim. This is why, in the absence of any information subsequent to the denial that could reasonably change the adjuster’s mind, an employee can justifiably assume that the denial was final and act accordingly. The defendants submitted no factual and/or medical information that would justify their refusal to |sauthorize the first LESI series or their sudden subsequent approval of it. This denial forced Pete to undergo the expense of hiring an attorney to file a disputed claim for benefits. Based on these considerations, the WCJ committed no manifest error by awarding the penalty.

The defendants next point to Dr. Gidman’s report, arguing that it made reasonable their refusal to approve consultations with the spine surgeon and the pain management specialist. Dr. Gidman concluded that Pete would not benefit from a second surgery and would not need a dis-cogram. There is nothing in Dr. Gidman’s report that questions Dr. Heard’s recommendations to consult a pain management specialist and a spine surgeon. Although the defendants focus extensively on Dr. Gidman’s conclusion that a diseogram was unnecessary, the WCJ did not impose a penalty on the defendants for the failure to authorize a diseogram. Instead, the WCJ penalized the defendants for the failure to authorize the recommended consultations. Based on the considerations above, we find no manifest error with the WCJ’s decision to impose penalties here.

From the record, it is clear that the OWC’s written judgment contains a clerical error as to the number of penalties the WCJ imposed on the defendants. The hearing transcript unambiguously indicates that the WCJ imposed three penalties of two thousand dollars each for the three infractions discussed above. Yet, the written judgment provides only for two penalties. Under our authority to render judgment that is just, legal, and proper upon the record, we amend the OWC’s judgment with respect to the number of penalties from two to three, and concomitantly increase the amount of the penalties from four thousand dollars to six thousand dollars.

Finally, we award three thousand dollars in attorney fees for Pete’s counsel’s work on appeal.

_kV.

CONCLUSION

The judgment in favor of Roshawn Pete is amended and, as amended, affirmed. In addition, we order Quality Construction Specialists and Bridgefield Casualty Insurance Company to pay three thousand dollars in Roshawn Pete’s attorney fees for the work on this appeal.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Certainly, as the WCJ pointed out, if the insurance adjuster, after the denial, learns new information that warrants authorization of the procedure previously denied, then the support for the imposition of penalties becomes more questionable. Yet, this is not the case here, as there is a glaring lack of any justification for the initial denial and the subsequent change of position.


author: DICKINSON, Justice,

text:
    Douglas JAY, Jr. v. STATE of Mississippi.
    No. 2008-KA-01264-SCT.
    Supreme Court of Mississippi.
    Oct. 29, 2009.
    Rehearing Denied Jan. 28, 2010.

      Henry Palmer Marvin E. Wiggins, Jr., attorneys for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. Douglas E. Jay, Jr., was tried in absentia and convicted on multiple counts of drug possession. He appeals, claiming he was incompetent to stand trial.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. After obtaining a search warrant, reading Jay his Miranda rights, and searching him, law enforcement officers found three bags on his person, one of which contained an off-white substance. The second bag contained a leafy green substance, and the third contained pills. These substances were later determined to be methamphetamine, marijuana, and al-prazolam (Xanax), respectively. During the search of Jay’s bedroom, marijuana was found in a night stand and in a metal tube under a pillow.

¶ 3. Deputy Sheriff Mark Spence testified that the officers prepared to take Jay and Theresa Chapman — an adult female who was also at the residence at the time the search warrant was executed — to jail. While transporting Jay and Chapman out of the home, Jay said, “why are you taking [Chapman]?” Spence replied, “with everything we found here, she was here, we’re going to take her in also,” to which Jay replied, “there’s no need for that ... everything that you found here was mine.”

¶ 4. Jay was indicted as a second-time drug offender for four felonies: possession of methamphetamine, possession of marijuana, possession of alprazolam, and possession of a firearm by a convicted felon. Trial was set for April 11, 2005.

¶ 5. While out on bond awaiting trial, Jay was attacked on his motorcycle and hit in the head with a rifle stock. As a result of the attack, Jay was diagnosed with traumatic brain injury.

¶ 6. On April 4, 2005, Jay’s trial counsel filed a motion for continuance, claiming Jay was incompetent to stand trial. In support of the motion, counsel provided the court a letter from Dr. Stuart A. Ya-blon, the Director of the Brain Injury Program at Methodist Rehabilitation Center in Jackson, Mississippi, which stated that Jay was “unable to participate in any court proceedings at this time” due to his injuries.

¶ 7. On April 6, 2005, the trial court ordered that psychiatrist Mark C. Webb conduct a psychiatric examination of Jay the next day to determine his ability to stand trial and assist his attorney in his defense. Although Dr. Webb’s report had not been received, Jay’s case was called to trial in the Circuit Court of Newton County on April 11, 2005. Prior to the docket being called at 9 a.m., Jay was present at the courthouse. However, he could not be located when his case was called. After Jay could not be located during a fifteen-minute recess, the case proceeded to trial without him.

¶ 8. Two days after the trial began, Dr. Webb filed his report with the trial court. The report stated that Jay “admits that he had all of the drugs in his possession” at the time he was arrested, and Jay “states to being intoxicated with methamphetamine and marijuana on the day of his arrest.” The report further stated that, “Mr. Jay is very aware of the court proceedings and is working with his attorney,” and that Dr. Webb had “made Mr. Jay completely aware of the purpose and ramifications of this interview and [Jay] consented] to both.” The report concluded that Jay was “able to stand trial, assist his attorney in his defense, able to know the difference between right and wrong, and understood the quality of his actions at the time of the alleged offense.” In summary, the report stated, “Mr. Jay is competent to stand trial and is not criminally insane.”

¶ 9. At trial, the State presented numerous witnesses in its case-in-chief. When the State rested, Jay’s attorney moved for a directed verdict. The motion was denied, and the trial judge inquired into the amount of testimony the defense would present. Jay’s attorney announced that he would have “none.”

¶ 10. Jay’s attorney objected to the trial being conducted in his client’s absence and moved for a continuance. In denying the motion, the trial judge stated:

[T]his man voluntarily left this courthouse .... he has known ... since December of last year, that his case was being tried today, and he was here Monday of last week. It was announced that the case would be tried today. He was here Thursday on his motion. It was announced that the case would be tried today.... He was here this morning and he met with you, and ... you told him to go on in the courtroom and that you’d come and get him. He left ... We looked for him. We waited ... if there’s any harm that comes from him not being here, he’s the one that caused it.

Jay’s attorney responded, “Can’t argue that fact, Your Honor.”

¶ 11. The trial judge instructed the jury, and the attorneys made closing arguments. The jury found Jay guilty on all three drug counts contained in the indictment. The fourth count of the indictment, possession of a firearm by a convicted felon, was ordered nolle prosequi

¶ 12. A sentencing hearing was scheduled for April 12, 2005. Arguing that Jay could not have known the time and date of the sentencing hearing, Jay’s attorney objected to the hearing being held in Jay’s absence. The trial court deferred Jay’s sentencing until April 15, 2005.

¶ 13. Although Jay did not appear on April 15, the trial court proceeded. Finding that the State had met the burden of proof regarding Jay being a second-time drug offender, the trial court sentenced Jay pursuant to Section 41-29-147 of the Mississippi Code, which provides for enhanced sentencing. Miss.Code Ann. § 41-29-147 (Rev.2005). For possession of methamphetamine, Jay was sentenced to twenty-five years in prison and fined $10,000. For possession of marijuana, he was sentenced to six years in prison to run consecutively with the previous sentence. For possession of alprazolam, Jay was sentenced to two years in prison, to run concurrently with the first two sentences.

¶ 14. On April 22, 2005, Jay’s attorney filed several post-trial motions, including a motion for a new trial, which was not ruled upon until June 2008. On October 13, 2005, Jay’s attorney filed a motion to set aside judgment of conviction and sentence. A hearing was held on this motion on May 11, 2006, and the motion was overruled on May 24, 2006. Although the trial court had not ruled on Jay’s motion for new trial, his attorney filed a motion for an out-of-time appeal on June 2, 2006. This motion was overruled on August 4, 2006.

¶ 15. Jay filed a notice of appeal on September 5, 2006, which Jay claims in his brief was “the next business day following the three-day Labor Day weekend.” The State filed a motion to dismiss the appeal pursuant to Rule 4 of the Mississippi Rules of Appellate Procedure. The State argued that Jay’s appeal was not ripe because Jay’s motion for a new trial had not been disposed of in the trial court before the notice of appeal was filed, and therefore, Jáy had not exhausted his remedies in the trial court. Finding this argument persuasive, the Court of Appeals dismissed the appeal, because it was “not timely filed,” concluding that “the Court has no jurisdiction to hear the appeal.” A motion for reconsideration was denied.

¶ 16. On June 4, 2008, Jay requested that the trial court hold a hearing on his motion for a new trial. The hearing was held on June 18, 2008, and the trial court denied the motion. On June 19, 2008, the trial court amended its June 18 order. This amended order stated that Jay’s motion for new trial was denied “for not being timely brought before the Court for a decision thereon.” Jay’s attorney now claims that this amendment was “unknown to counsel” and that the issue of timeliness was “addressed inconclusively during the hearing.”

¶ 17. Jay filed the current notice of appeal to this Court on July 3, 2008. Jay appeals from the judgment of conviction entered April 21, 2005, the order overruling motion to set aside judgment of conviction and sentence entered on May 27, 2006, the order denying motion for new trial entered on June 18, 2008, and the order amending previous order entered June 19, 2008.

¶ 18. Jay raises eight issues. Because we find dispositive the issue of Jay’s right to a mental competency hearing, the procedural issues, as well as the trial in Jay’s absence, are addressed only briefly. The other issues Jay raises need not be addressed.

DISCUSSION

Post-Trial Motions

¶ 19. Jay first argues that the trial court erred in not granting his multiple post-trial motions, including his motion for a new trial. This Court has stated that “[i]n reviewing the decision of the trial court on a motion for a new trial, this Court views all of the evidence in the light most consistent with the jury verdict.” Daniels v. State, 742 So.2d 1140, 1143 (Miss.1999) (citing Strong v. State, 600 So.2d 199, 204 (Miss.1992)). While this issue is not dispositive, the denial of the motion for a new trial is addressed solely regarding the procedural issues involved with perfecting the current appeal.

¶ 20. Jay’s trial counsel filed a motion for a new trial on April 26, 2005, days after the judgment and sentence were filed. This motion contained nine assignments of error. The trial court neither denied the motion nor held a hearing until June 18, 2008.

¶ 21. Rule 4 of the Mississippi Rules for Appellate Procedure — which governs when an appeal as of right can be taken — requires that “the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” However, Rule 4(a) excepts from this thirty-day requirement eases in which motions have been filed pursuant to Rule 4(e). Rule 4(e) provides that the thirty-day time period for an appeal in a case in which the defendant has made a timely motion for a new trial shall begin to run from the date of the denial of such motion. The comments to Rule 4 read, in pertinent part:

Rule[ ] ... 4(e) now provide[s] that a notice of appeal filed before the disposition of a specified post trial motion will become effective upon disposition of the motion. A notice filed before the filing of one of the specified motions or after the filing of a motion but before its disposition is, in effect, suspended until the motion’s disposition, whereupon the previously filed notice effectively places jurisdiction in the Supreme Court.

Miss. R.App. P. 4 cmt.

¶ 22. Rule 10.05 of the Uniform Circuit and County Court Rules, which governs motions for new trials, provides that “[t]he trial judge may hear and determine a motion for a new trial at any time.” (Emphasis added.) The rule requires that a motion for a new trial must be filed “within ten days of the entry of judgment.” Miss. Unif. Cir. & Cty. R. 10.5. Jay’s judgment was filed on April 21, 2005, and his motion for a new trial was filed on April 26, 2005. Clearly, Jay filed his motion for a new trial within the time prescribed by the rule. Therefore, the trial judge — who had the discretion under the Rules to hear this motion at any time — waited more than three years to do so, after which, the current notice of appeal was timely filed.

¶ 23. The trial court issued a sua sponte order on June 19, 2008, which amended the June 18 order denying the motion for a new trial. The reason stated in the amended order for the denial was that the motion was not “timely presented to the Court for a decision thereon.” Neither Mississippi Rule of Appellate Procedure 4(e) nor Uniform Circuit and County Court Rule 10.05 requires a motion for new trial (which has been filed) to be “timely presented” by the defendant to the trial court. Therefore, under the facts of this case, the thirty-day time period to file a notice of appeal began to run on June 18, 2008. Jay filed the current notice of appeal on July 3, 2008, which was within the thirty-day requirement.

Mental Competency Hearing

¶ 24. Jay’s second issue is the trial court’s failure to conduct a mental competency hearing to determine his ability to stand trial. The United States Supreme Court has defined competency to stand trial as “whether [a defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824, 825 (1960) (per curiam).

¶ 25. In order to be deemed competent to stand trial, a defendant must be one:

(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity of the case.

Martin v. State, 871 So.2d 693, 697 (Miss.2004) (quoting Howard v. State, 701 So.2d 274, 280 (Miss.1997) (overruled on other grounds)). When a trial court determines that a defendant is competent to stand trial, we will not overturn such finding unless it was “manifestly against the overwhelming weight of the evidence.” Martin, 871 So.2d at 698 (quoting Emanuel v. State, 412 So.2d 1187, 1189 (Miss.1982)).

¶ 26. Jay filed a motion for extension of time on April 4, 2005, one week before the trial was scheduled to begin. The motion claimed Jay had sustained a severe traumatic brain injury in September 2004. Attached to that motion was a letter from Dr. Yablon, which stated that “[d]ue to the severity of [Jay’s] injury, he continues to suffer from cognitive, motor, functional and sensory deficits and is at increased risk for seizures and [deep-vein thrombosis], He is therefore, unable to make competent medical decisions and unable to participate in any court proceedings at this time.”

¶ 27. The trial judge ordered Jay to undergo a psychiatric examination by Dr. Webb in order to determine Jay’s ability to stand trial and assist his attorney in his defense. Dr. Webb’s report was filed in the court file on April 13, 2005-two days after the trial. There is no indication in the record that the trial judge ever read or considered it. Dr. Webb’s report concluded that Jay was “competent to stand trial.” Thus, the court file contained conflicting opinions as to whether Jay was competent to stand trial. We have no way of knowing whether the trial judge considered the two opinions and found Dr. Webb’s opinion more persuasive, or simply failed to hold a hearing to consider the matter.

¶28. Rule 9.06 of the Uniform Circuit and County Court Rules governs cases in which competence to stand trial is at issue. The rule reads, in relevant part:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

Miss. Unif. Cir. & Cty. R. 9.06 (emphasis added).

¶ 29. The rule requires a mental examination be conducted when the trial court has reasonable grounds to believe the defendant is incompetent to stand trial. Here, the trial court clearly had reasonable grounds to believe Jay was incompetent to stand trial, as evidenced by the order for a psychiatric evaluation.

¶ 30. The rule further requires that, following such examination, the court shall hold a competency hearing to determine whether the defendant is competent to stand trial. Id. Furthermore, the rule requires the court to make its finding a matter of record before the case proceeds to trial. Nothing in the record indicates that the trial court ever held a competency hearing or made findings as to Jay’s competency to stand trial.

¶ 31. The State argues that — because the record does not reflect whether or not the trial judge actually received the report before trial or whether he ever spoke with Dr. Webb concerning the defendant — this Court “must assume that the trial court objectively considered all the facts and circumstances, including those which are not available to this Court, which bore upon the defendant’s competence to stand trial.” To support its argument, the State cites Conner v. Stale, 632 So.2d 1239, 1251 (Miss.1993) (overruled on other grounds). However, the Conner case references the type of evidence the tidal judge, and not the appellate courts, can see first-hand: namely, the defendant’s demeanor and behavior. See Conner, 632 So.2d at 1248-1251. Conner gives no support whatsoever to the State’s argument.

¶ 32. More recently, in Hearn v. State, 3 So.3d 722, 730 (Miss.2008), this Court found that, because no mental competency hearing was held prior to trial:

the trial court failed to comply in the strictest technical sense with Rule 9.06 which mandates that a competency hearing be conducted following a court-ordered mental examination.... However, [the evaluating psychiatrist] testified at trial as to [the defendants competency and was subjected to cross-examination. Because [the defendant] was afforded the opportunity to present competing evidence, the purposes of Rule 9.06 were satisfied.

Id. There are currently two views on this Court regarding mental competency hearings, that of the majority in Hearn, and that as expressed in Sanders v. State, 9 So.3d 1132, 1141 (Miss.2009) (Kitchens, J., concurring in result only, joined by Dickinson, J.).

¶ 33. Justice Kitchens, advocating strict compliance with Rule 9.06’s pretrial competency hearing outside of the jury’s presence, stated that “the procedures of Rule 9.06 are in place to protect the due process rights of defendants whose competency to stand trial is in doubt. They are not technical requirements that may be sidestepped.” Id.

¶ 34. Regardless of which view one takes generally, there was no competency hearing prior to or during trial. Dr. Webb did not testify at trial, and there is, therefore, no argument that the “purposes” of Rule 9.06 were satisfied, as required in Hearn. Hearn, 3 So.3d at 730.

¶ 35. The United States Supreme Court has held that a criminal defendant’s “constitutional rights were abridged by his failure to receive an adequate hearing on his competence to stand trial” when “the evidence raises a ‘bona fide doubt’ as to a defendant’s competence to stand trial.” Pate v. Robinson, 383 U.S. 375, 385-386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Therefore, the trial court’s failure to hold a competency hearing was a violation of Jay’s constitutional rights and, therefore, requires reversal.

Trial in absentia

¶ 36. Jay argues that the trial court acted arbitrarily by conducting the trial in his absence. He complains that the court allowed only a fifteen-minute delay to locate him before the trial was commenced. This issue is controlled by Section 99-17-9 of the Mississippi Code, which states:

In criminal cases the presence of the prisoner may be waived (a) if the defendant is in custody and consenting thereto, or (b) is on recognizance or bail, has been arrested and escaped, or has been notified in writing by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or is in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court.

Miss.Code Ann. § 99-17-9 (Rev.2007).

¶ 37. Jay argues that this Court in Sandoval v. State, 631 So.2d 159 (Miss.1994), and its progeny, has held that felony causes should not be tried in absentia of the defendant. However, as the Court of Appeals pointed out in Sessom v. State, 942 So.2d 234, 237 (Miss.Ct.App.2006), the Mississippi Legislature has effectively overruled Sandoval. The Court of Appeals explained that:

Pursuant to Sandoval, the circuit court had no authority to try [a felony defendant] in his absence and the trial judge did not have the option to proceed with trial.... The Legislature did not amend Section 99-17-9 of the Mississippi Code until July 1, 2005. That amendment effectively overruled Sandoval as it relates to trial of a felony offender in his absence.

Sessom, 942 So.2d at 237.

¶ 38. Even if this were not so, Jefferson v. State, 807 So.2d 1222, 1227 (Miss.2002), “earve[d] out an exception [to the Sandoval rule] based on willful, voluntary and deliberate actions by a defendant in avoiding trial.” Jay argues that his brain damage mitigates his absence, whereas there was no evidence of brain damage in the Jefferson case.

¶ 39. This issue turns on Jay’s mental competency hearing. Had Jay been found mentally competent, the Jefferson exception to the Sandoval rule would apply, allowing Jay to be tried in absentia, based on his willful, voluntary, and deliberate absence from trial. However, had he been found incompetent to stand trial, the issue would be moot.

CONCLUSION

¶ 40. The trial court’s failure to conduct a mental competency hearing violated Rule 9.06 as well as Jay’s constitutional right to have his competency determined. Whether or not Jay’s absence at trial was a result of willful, voluntary, and deliberate actions turned on whether or not he was mentally competent at the time of trial. Because the trial court failed to conduct a competency hearing, this question cannot be answered. This matter is reversed and remanded for a new trial subject to a competency hearing, and provided the trial judge determines in the course of the Rule 9.06 hearing that Jay is competent to stand trial.

¶ 41. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).