text:
    STATE of Louisiana v. Keyowaski M. DOUCET.
    No. 09-1065.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant-Keyowaski M. Doucet.
    Trent Brignac, District Attorney, Thirteenth Judicial District Court, Julhelene E. Jackson, Assistant District Attorney, Thirteenth Judicial District Court, Ville Platte, LA, for Plaintiff/Appellee-State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

hln 2009, Defendant, Keyowaski M. Doucet, pled guilty to the following counts: (1) vehicular homicide, in violation of La. R.S. 14:32.1; (2) driving while intoxicated, first offense, in violation of La.R.S. 14:98; (3) careless operation of a motor vehicle, in violation of La.R.S. 32:58; (4) driving under suspension, in violation of La.R.S. 32:415; and, (5) no seat belt, in violation of La.R.S. 32:295.1. The trial court sentenced Doucet to the concurrent sentences of twenty-five years at hard labor for vehicular homicide, six months in the parish jail for driving while intoxicated, six months in the parish jail for careless operation, six months in the parish jail for driving under suspension, and thirty days in parish jail for no seat belt. Doucet appeals claiming his vehicular homicide sentence was excessive. For the following reasons, we affirm.

ISSUES

We shall consider whether:

(1) Defendant’s sentence of twenty five years at hard labor was excessive where Defendant, with previous misdemeanor and felony convictions, drove a vehicle while under the influence of illegal drugs and alcohol into a home killing the resident and leaving the scene;
(2) the trial court satisfied the mandates of La.Code Crim.P. art. 894.1; and,
(3) the defense counsel’s failure to file a motion to reconsider sentence is enough to support a claim of ineffective assistance of counsel under the circumstances of the case mentioned above.

FACTS

In 2008, Doucet, while under the influence of PCP, marijuana, and alcohol, veered off the road and struck a home, killing the resident. The pre-sentence ^investigation report (PSI) indicates that police were dispatched in reference to a vehicle stolen by Doucet. While looking for the vehicle, police were advised to go to the home of Doucet’s mother. Doucet’s mother then instructed Doucet to show police where the vehicle was. Doucet voluntarily went with police and, eventually, located the vehicle.

After an investigation, police concluded that Doucet left the road and struck a ditch. He continued to travel through a private field, struck two fences, and, eventually, struck a private residence. Police concluded that Doucet never attempted to slow down or brake after leaving the roadway. After the accident, Doucet left the scene and made no attempt to notify emergency personnel about the crash.

The following is a summary of Doucet’s personal and criminal history contained in the PSI. Doucet is currently classified as a second felony offender. He stated that he was not in the right state of mind at the time of the accident and that he was sorry about the accident. Doucet is the only child born to never-married parents. His mother raised him along with his three younger half-brothers, and the family is very close.

Doucet quit attending school after completing the seventh grade. He entered the work force at the age of 20. Doucet worked as a galleyhand for ESS, an offshore company, for approximately two months before being laid off. Approximately a year later, Doucet worked off- and-on as a painter. In 2007, Doucet secured employment with Dean Hart Construction. He was employed with them on two separate occasions, for approximately one month on each occasion, in 2007 and in 2008. In February of 2008, Doucet’s probation was revoked under Act 402 for a ninety-day period.

| c,Most recently, in September of 2008, Doucet worked for another construction company. Doucet stated he was employed with this company until his arrest for this offense. He has been incarcerated since that time.

Doucet has never married. He has reported having two daughters who live with their mother. Doucet had contact with his children prior to his incarceration.

Doucet reported using illegal drugs and alcohol from his teens until his arrest for this offense. While on probation for offenses for which he was convicted in 2006, Doucet denied having an alcohol problem. He reported the use of Cocaine, Marijuana, and PCP. Doucet continued to use illegal drugs during his period of probation. He was returned to court for these violations and others. The court ordered that he complete the Revocation Center, a ninety-day lock-down drug treatment program.

There, Doucet received drug treatment counseling and life skills counseling. He completed that program. Nevertheless, he continued to use illegal drugs during the remainder of this period of supervision.

Doucet has not reported any physical health problems. At the time that he was placed on probation in 2006, he reported having received treatment for approximately one week for mental health problems. He advised that he suffered from depression and anger. He completed an Anger Management Program in 2005. While on probation, Doucet reported suffering from depression. He was advised that he should be evaluated by the Mental Health Clinic. He never contacted the clinic. Doucet has indicated that he was not in the right frame of mind at the time he committed this offense.

Doucet became criminally active at age fourteen. His adult record began at age nineteen. He has been arrested on numerous occasions for misdemeanor and Rfelony offenses. Thus, Doucet pled guilty to obstructing a public passage and contempt of court in 2004; criminal damage to property, criminal damage, and possession of marijuana in 2005; filing a false public record, unauthorized use of a motor vehicle, disturbing the peace, and contempt of court in 2006; resisting arrest by flight, no driver’s license, following too close with an accident, hit and run, and contempt of court in 2008; disturbing the peace by offensive language, misrepresentation during booking, simple assault, and resisting arrest in 2009. Charges of simple battery, resisting an officer, and threatening a public official were pending at the time the PSI was completed.

Because of Doucet’s convictions, he was placed on misdemeanor probation on two separate occasions. It appears that he completed one of those periods of supervision satisfactorily. The other misdemean- or probation has not been completed, and there was an active bench warrant for Doucet’s arrest. He failed to return for a revocation hearing in that matter.

He has also been supervised for two separate felony convictions. Both of these convictions occurred in 2006. Doucet was supervised on both of them simultaneously. Doucet violated the conditions of probation on several occasions by committing new misdemeanor offenses: using illegal drugs and not making a sincere effort to comply with many of the other conditions of probation. He was scheduled to be returned to court in both dockets. Doucet has already been served with notice of the hearing when he committed this offense. Both periods of probation were revoked. The first period of probation was a result of a conviction for filing false public record. The second, for unauthorized use of a motor vehicle. Because both offenses occurred prior to any conviction, Doucet remained a first felony offender. |fiThis offense of vehicular homicide is Doucet’s third felony offense. However, he is only classified as a second felony offender.

Finally, the PSI contained the following observation. The sentence for vehicular homicide mandates that three years be served without benefit of probation, parole, or suspension of sentence. Therefore, Doucet is not eligible for probation. Also, he is not eligible for the Impact Program due to the mandated sentence.

PROCEDURAL NOTE

Doucet entered a plea of guilty to Counts 1 through 5 listed above. Because Counts 2-5 were not triable by jury, the proper mode of appellate review for these offenses is an application for writ of review, rather than an appeal. La.Code Crim.P. art. 912.1.

In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084, Defendant appealed his convictions for two felonies and one misdemeanor, but made no specific arguments regarding his misdemeanor conviction. Thus, this court severed the misdemeanor conviction from Defendant’s appeal of the two felony convictions. The court ordered Defendant to file a writ of review regarding the misdemeanor conviction in compliance with the Rules of Court. Id. If Defendant desired to seek review of the misdemeanor conviction, this court considered the notice of appeal as a notice to file a writ of review within thirty days of the court’s opinion.

In State v. Stevens, 07-976 (La.App. 3 Cir. 8/5/08), 978 So.2d 535, the State mis-joined a felony with a misdemeanor in a single bill of information. This court held that because Defendant failed to file a motion to quash the bill, he waived Rany objection to the error. We further noted that because the misdemeanor was not triable by jury, the proper mode of appellate review was an application for writ of review. Thus, we severed the misdemean- or conviction from the appeal.

In this case, Doucet has not challenged the misdemeanors; his assignments of error concern his sentence for vehicular homicide. Therefore, this court severs the misdemeanors from the appeal and instructs Doucet that if he chooses to seek review of the misdemeanors, he must file an application seeking supervisory review with this court within thirty days of the court’s ruling on appeal.

Finally, the record does not indicate that the trial court advised Doucet of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, we direct the trial court to inform Doucet of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Doucet within ten days of the rendition of this opinion, and to file written proof in the record of the proceedings that Doucet received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

LAW AND DISCUSSION

Because all of the issues Doucet raises pertain to his sentence, we shall address them at the same time. Defendant has thirty days after the imposition of sentence to make or file a motion to reconsider sentence. La.Code Crim.P. art. 881.1. Thus, Defendant’s excessive sentence claim is barred under La.Code Crim.P. art. 881.1 when Defendant neither made nor filed an objection regarding his sentence. State v. Blake, 03-1465 (La.App. 3 Cir. 5/5/04), 872 So.2d 602. Nevertheless, when |7the record contains sufficient evidence to address the ineffective assistance of counsel issue, this court examines “whether there was a reasonable probability that the trial court would have reduced” Defendant’s sentence if Defendant’s trial counsel made or filed a motion to reconsider sentence. Id. at 608 (citing State v. Prudhomme, 02-511 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324).

When the defense counsel fails to file a motion to reconsider sentence, Defendant may have a claim of ineffective assistance of counsel when Defendant “can show a reasonable probability, but for defense counsel’s error, his sentence would have been different.” Prudhomme, 829 So.2d at 1177 (citing State v. Texada, 98-1647 (La.App. 8 Cir. 5/5/99), 734 So.2d 854). Moreover,

[a] claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief. This allows the trial judge an opportunity to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered. State v. James, 95-962 (La. App. 3 Cir. 2/14/96); 670 So.2d 461.

State v. Francis, 99-208, pp. 10-11 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, 491, writ denied, 00-544 (La.11/13/00), 773 So.2d 156.

To prove an allegation of ineffectiveness, Defendant must specifically show prejudice. Blake, 872 So.2d 602 (citing State v. Reed, 00-1537 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, writ denied, 02-1313 (La.4/25/03), 842 So.2d 391). “Whether or not a defendant received ineffective assistance of counsel is a two-part inquiry. First, we must determine whether the trial court would have reduced the Defendant’s sentences upon the filing of a ‘Motion to Reconsider Sentence.’ Second, we must determine whether the sentences were excessive.” Id. at 609.

|s(l) Would the Trial Court Have Reduced the Defendant’s Sentence

Doucet did not file a motion to reconsider sentence and did not object to the sentence at the time it was imposed. In brief to this court, Doucet asserts the trial court did not inquire into his family or work history. He maintains the record does not indicate a lengthy criminal record and none of his prior offenses are in the same “crime family” as vehicular homicide. He further asserts that he had no prior convictions for driving while intoxicated.

Doucet contends he assisted police in locating the vehicle after the accident and accepted responsibility for his actions by pleading guilty. He avers the trial court failed to give consideration to these mitigating factors. Further, the trial court failed to consider his need for substance abuse rehabilitation.

Doucet also argues that the victim’s death and his use of drugs are elements of the offense and should not be considered as aggravating factors. Further, the record does not support the trial court’s conclusion that the events were likely to reoccur. Doucet asserts that considering the factors listed by the trial court at sentencing, it failed to give sufficient weight to La.Code Crim.P. art. 894.1 in arriving at the sentence. Doucet then contends his sentence is excessive.

At sentencing, the trial court noted Dou-cet’s extensive criminal record, which began at a very early age. The trial court commented that it reviewed the PSI and that it has carefully considered the provisions of La.Code Crim.P. art. 894. The trial court distinguished factual circumstances of this case from the one where two people have been drinking together and then decided to get into a car together and one of the persons gets killed in an accident. The trial court reasoned that unlike Doucet’s victim, the victim who gets into the car and gets killed assumed a certain amount of risk. Thus, the trial court concluded that a lesser sentence than what it was | agoing to impose would deprecate the seriousness of Doucet’s offence, especially in light of Doucet’s criminal record that pointed to probable recidivism.

We find that the trial court considered the circumstances of this case and Dou-cet’s circumstances before imposing the sentence. Thus, we conclude that the trial court was unlikely to have reduced Dou-cet’s sentence had a motion to reconsider sentence been filed.

(2) Excessiveness of Sentence

To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted). The following factors help to decide whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals: “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, 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 (citing State v. Smith, 99-606, 99-2015, 99-2019, 99-2094 (La.7/6/00), 766 So.2d 501). Although a comparison of sentences imposed for similar crimes can be helpful, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Id. (quoting State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir.1991)). Finally, because the trial court is in the best position to evaluate the aggravating and mitigating factors of | ,na particular case, “it is within the purview of the trial court to particularize the sentence.” Id.

Vehicular homicide is punishable by imprisonment with or without hard labor for not less than five years nor more than thirty years. La.R.S. 14:32.1(B). Doucet was sentenced to serve twenty-five years at hard labor.

In State v. Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d 66, this court found the sentence excessive. There, Defendant received a sentence of twenty years, the maximum permitted at the time of the offense, for the death of a seventeen-year old who was changing a tire on the side of the road. We distinguished the circumstances in Morain from the circumstances in other cases where the defendants received maximum or near maximum sentences. Unlike the defendants in other cases, who had blood alcohol levels several times the legal limit, had prior DWI convictions, and showed no remorse, Defendant in Morain had blood alcohol level slightly over the limit, he had no prior DWI or other convictions, and he showed remorse.

In State v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224, we held that a first-time felony offender’s sixteen-year sentence was not excessive where Defendant’s blood alcohol level was twice the legal limit and his actions resulted in the death of a human being and serious bodily injuries to two other persons.

In State v. Barber, 42,548 (La.App. 2 Cir. 10/24/07), 968 So.2d 829, the court held that a twenty-year sentence, two-thirds of the maximum, was not excessive where Defendant, who had two prior DWIs and was seen drinking excessively prior to the accident, fled the scene of the accident on foot after striking and killing a person.

|n From the cases cited above, it appears that the maximum sentences are affirmed where Defendants engaged in prior DWI violations, other criminal offenses, or both, and had no remorse. On the other hand, Defendants with minor or no criminal history received one-half or three-quarters of the maximum sentences.

Here, Doucet’s criminal conduct began when he was fourteen years old. He has been convicted of numerous misdemeanors and two felonies. He failed to comply with the conditions of his probation on several occasions. Further, a revocation hearing was requested and scheduled for November 12, 2008. On November 11, 2008, he committed the offense at issue. Based on Doucet’s history of drug use, his criminal history, his classification as a second felony offender, and that he was on probation at the time he committed this offense, we find Doucet’s sentence for vehicular homicide not excessive.

Consequently, even if Doucet’s trial counsel had filed a motion to reconsider sentence, Doucet’s sentence would have been deemed appropriate under the circumstances. Therefore, the trial counsel’s failure to file the motion did not prejudice Doucet. Finally, “[wjhere the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1.” State v. Leger, 04-1467, p. 62 (La.App. 3 Cir. 6/1/05), 907 So.2d 739, 780, writ denied, 05-2263 (La.4/17/06), 926 So.2d 509, cert. denied, 549 U.S. 910, 127 S.Ct. 245, 166 L.Ed.2d 193 (2006) (quoting State v. Hampton, 38,017, 38,018, 38,019, 38,020, 38,021, 38,022, p. 11 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, 292, writ denied, 04-834 (La.3/11/05), 896 So.2d 57, writ denied, 04-2380 (La.6/3/05), 903 So.2d 452).

| ^CONCLUSION

Doucet’s sentence for vehicular homicide is affirmed. This court severs the misdemeanor convictions from the appeal and instructs Doucet to file an application for supervisory review within thirty days of this ruling if he chooses to seek review of the misdemeanors. Additionally, the trial court is directed to inform Doucet of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Dou-cet within ten days of the rendition of this opinion, and to file written proof in the record of the proceedings that Doucet received the notice.

AFFIRMED WITH INSTRUCTIONS.

      . In the decree language in Turner, 896 So.2d 286, this court simply affirmed Defendant's felony convictions with no reference to the misdemeanor.

      . Appellate counsel notes that pursuant to La.Code Crim.P. art. 493.1, the maximum aggregate sentence for counts 2 through 5 could not exceed six months. She notes that three six-month sentences and one thirty-day sentence were imposed, to run concurrently. However, she concedes that the appeal is limited to review of the sentence imposed for the felony offense of vehicular homicide.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Carol POWERS v. ACE TRANSPORTATION, INC., et al.
    No. 10-365.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.

      Mark T. Garber, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Carol Powers.
    Bryan D. Scofield, Scofield & Rivera, L.L.C., Lafayette, LA, for Defendants/Ap-pellees, Ace Transportation, Inc. Zurich American Insurance Co.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

This court issued a rule for the plaintiff/appellant, Carol Powers, to show cause, by brief only, why the appeal in this case should not be dismissed as premature. For the reasons assigned below, we dismiss the appeal.

The appellant filed a claim with the Office of Workers’ Compensation against Ace Transportation, Inc. and Zurich American Insurance Company seeking a variety of benefits including increased payment of average weekly wages, future benefits, medical reimbursement, medical mileage, and penalties and attorney fees. Both sides filed a motion for summary judgment. The trial court granted, in part, the motion for summary judgment filed by the defendants/appellees.

The appellant filed a motion for appeal from this ruling, and the trial court granted the order of appeal. Upon the lodging of the record in this case, this court, on its own motion, issued a rule for the appellant to show cause, by brief only, why the appeal should not be dismissed as premature pursuant to Rhodes v. Lewis, 01-1989 (La.5/14/02), 817 So.2d 64.

The appellant responded by brief to this court’s order arguing that the instant issues on appeal are distinguishable from that of Rhodes, 817 So.2d 64. The appellant notes that the judgment appealed granted the appellees’ motion for summary judgment on the issues of the appellant’s average wage and whether the appellant was required to receive approval before accepting medical payment reimbursement coverage from her own liability insurer. The appellant argues that the above-described issues are not dispositive and, therefore, contends that the policy issues referenced in Rhodes are not applicable. Finally, the appellant argues that the public policy goals of the workers’ compensation system are better served by allowing the appellant’s appeal to proceed.

12As mentioned above, the rule to show cause issued by this court in this matter cited the appellant to Rhodes, 817 So.2d 64. In Rhodes, two of three defendants were dismissed from the action. Despite the fact that dismissal of that appeal resulted in trial being conducted against only one defendant, which created a risk that a new trial would have to be held in the event that a later appeal resulted in a finding that the dismissal of the first two defendants was incorrect, the supreme court held that La. Code Civ.P. art. 1915(A)(1) and (5) were inapplicable to workers’ compensation suits.

In Evergreen Presbyterian Minist. v. Wallace, 05-1343 (La.App. 3 Cir. 4/5/06), 926 So.2d 759, this court ordered the dismissal of appeals filed by both sides. The rulings at issue in that appeal were that the claimant was entitled to supplemental earnings benefits, but that the claimant was not temporarily and totally disabled nor totally and permanently disabled, as well as other rulings deciding other issues in the case. This court stated therein:

The law is clear, and we are bound to follow the supreme court’s dictates, that a piecemeal appeal is not permissible in a workers’ compensation case. The judgment of the Office of Workers’ Compensation clearly establishes that issue of penalties and attorney fees is yet to be decided by it. As the second circuit noted in Gajeske v. Integrated Electrical Services, Inc., 37,777 (La.App. 2 Cir. 10/29/08), 859 So.2d 896, in footnote four (citing Rhodes, 817 So.2d 64), a piecemeal appeal is not permissible when there are still issues involving penalties and attorney fees yet to determined. Until all issues have been decided in this case, this appeal is premature.

Evergreen Presbyterian Minist., 926 So.2d at 763.

The appellant presents public policy arguments for maintaining the instant appeal; however, the appellant does not address the fact that the judgment of which the appellant seeks review is not a complete adjudication of the action. The appellees’ answer to the appeal clearly indicates that there are issues remaining outside the scope of this appeal, including, but not limited to, the issue of the | ¡¡appellant's right to future benefits. Accordingly, we hereby dismiss the instant appeal at appellant’s cost.

APPEAL DISMISSED.


author: DECUIR, Judge.

text:
    STATE of Louisiana v. Michael Kemper PERCY.
    No. 09-1319.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.
    James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant, Michael Kemper Percy.
    Bennett R. LaPoint, Assistant District Attorney, Jennings, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

_JjThe Defendant, Michael Kemper Percy, was charged by bill of information with armed robbery, in violation of La. R.S. 14:64, aggravated burglary, in violation of La. R.S. 14:60, and aggravated battery, in violation of La. R.S. 14:34. Pursuant to a plea agreement, the Defendant entered a plea of guilty to the lesser included offense of first degree robbery, in violation of La. R.S. 14:64.1. The parties agreed upon a sentencing cap of fifteen years, and the remaining charges were dismissed.

On September 14, 2009, the Defendant was sentenced to serve fifteen years at hard labor, without benefit of probation, parole, or suspension of sentence. An oral motion to reconsider sentence was made and denied. A written motion to reconsider sentence followed on September 15, 2009, and it was also denied. The Defendant is now before this court asserting one assignment of error. Therein, the Defendant contends his sentence is excessive.

The record contains the following recitation of facts by the prosecuting attorney at the time of the Defendant’s plea:

[0]n or about July 10th, Your Honor, here in the parish of Jefferson Davis near Elton, Louisiana, at the residence of Amanda and Roland Lacombe, the family was there with several small children as well as Mr. Lacombe’s elderly mother. A truck drove up to that residence. Inside the truck were three (3) black males.... The three (3) black males got out and accosted Roland La-combe. They held him down, and one of the defendants hit on him.
At that time, his wife, Dr. Amanda Lacombe, came out to see what the commotion was. One of the defendants accosted her. The mother came out. One of the other defendants accosted her. It would be their testimony, Your Honor, that all three (3) defendants at one time or another brandished a weapon, a pistol, and threatened them. They demanded money or other items of value. Amanda Lacombe went into the purse in her vehicle and got out some credit cards and dollar bills.... The defendants demanded access to the house. One of the defendants kicked in the door to the home ... went inside, got some more money out of a wallet that was located inside the house.

|2In his only assignment of error, the Defendant contends the trial court erred by imposing an excessive sentence for this offender and this offense.

In State v. Roberts, 08-1026, p. 11 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011, 1019, this court discussed a defendant’s right to seek review of a sentence imposed in accordance with a plea agreement:

Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides that a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” It is uncontested that Defendant entered into a plea agreement with the State that included a ten-year sentencing cap. Defendant was sentenced within the terms of his plea agreement. Therefore, he is precluded from seeking a review of his sentence on appeal. See State v. Washington, 07-852 (La.App. 3 Cir. 1/30/08), 977 So.2d 1060.

In the present case, the Defendant pled guilty to first degree robbery, which is punishable by imprisonment at hard labor for not less than three nor more than forty years, without benefit of probation, parole, or suspension of sentence. La. R.S. 14:64.1. As part of the plea agreement, the parties agreed to a sentencing cap of fifteen years. The Defendant was sentenced to fifteen years. Because the sentence imposed was within the agreed upon sentencing cap, the Defendant may not seek review of the sentence. Accordingly, this assignment of error will not be considered.

The Defendant has raised no other issues for review by this court. Consequently, and finding no error patent on the face of the record, we affirm the sentence imposed on the Defendant.

AFFIRMED.


author: GREMILLION, Judge. CHATELAIN, Judge,

text:
    DUPRE & SON FLOOR COVERING, INC., et al. v. CITY OF IOTA, et al.
    No. 09-1183.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.

      John Fayne Wilkes, III, Joy C. Raba-lais, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendant/Appellee, City of Iota.
    Jacque Berchmans Pucheu, Jr., Pucheu, Pucheu & Robinson, Eunice, LA, for Plaintiffs/Appellants, Dupre & Son Floor Covering, Inc., Henry Dupre.
    Michael Howard Landry, Attorney at Law, Crowley, LA, for Defendant, The Vacant Succession of Eric Atchison.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

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

   GREMILLION, Judge.

11 Henry Dupre and Dupre & Son Floor Covering, Inc. (Dupre), appeal the judgment rendered in favor of the Town of Iota (Iota), dismissing their demands in tort. We affirm for the reasons that follow.

FACTS

On December 27, 2006, Eric Atchison was pulled over by Reserve Officer Christopher Short of the City of Iota Police Department for running a stop sign in front of the Iota police station. Officer Short and a fellow officer, Michael Miller, determined that Atchison was uninsured and driving under suspension. Officer Miller contacted the dispatcher of the Acadia Parish Sheriffs office and was able to determine that there was no record of Atchison being insured. One of Atchison’s relatives attempted to have a youngster remove Atchison’s vehicle, but the youngster was unable to produce a valid driver’s license. Miller took possession of Atchi-son’s license plate and issued a three-day temporary sticker, also known as a “green sticker.” Atchison received several citations and phoned a friend, who drove his 1993 Chevrolet Silverado pickup from the scene after producing a valid driver’s license.

On January 5, 2007, Atchison, operating the same truck, crossed the center line of Louisiana Highway 755 and collided with the Ford Expedition operated by Dupre. As a result of the collision, Dupre alleges he was injured. Atchison was killed in the collision.

Dupre filed suit against Iota and Atchi-son’s unopened succession. He alleged the town’s fault arose from the failure to impound Atchison’s vehicle, in violation of La. R.S. 32:863.1. Iota answered, alleging that the failure to impound Atchison’s vehicle was not a cause-in-faet of Dupre’s loss.

| {¡Following discovery, Iota filed a motion for summary judgment in which it asserted that La. R.S. 32:863.1(0 grants discretion to the officer to seize the vehicle’s license plate and allow the uninsured motorist to remove his vehicle under certain circumstances such as the driver’s handicap, or the location or time of the stop. Therefore, Iota contended, the officers and town were immune pursuant to La. R.S. 9:2798.1, which immunizes public entities and their officers or employees from liability arising from the exercise of policymak-ing or discretionary functions, except when those functions are not reasonably related to a legitimate governmental objective or to criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. Further, Iota argued, even if the statute allows no discretion, the failure of the officers to impound the vehicle was not a cause-in-fact of the accident, as Atchison could just as easily have been driving another vehicle.

Dupre responded that La. R.S. 9:2798.1 does not apply because the statute prescribes narrow exceptions to the mandate that vehicles be impounded. Absent the immunity granted by section 2798.1, Iota’s conduct must be judged under the duty-risk analysis applicable to all tort actions. The duty of Iota, Dupre argues, is to impound the vehicle to prevent uninsured motorists from posing a threat to the general public. In failing to impound the vehicle, Iota breached that duty. If the harm encountered by Dupre was within the protection of section 863.1, cause-in-fact is established.

Iota’s motion for summary judgment was heard on April 6, 2009. Oral reasons for judgment in favor of Iota were then given. The trial court found that section 863.1 does allow discretion on the part of the police officer. Further, cause-in-fact was not established because removing the vehicle from the roads did not remove Atchison Isfrom the roads. Lastly, the nature of the section is punitive. Therefore, the trial court found Dupre did not fall within the scope of the protection of the duty imposed by the statute.

ANALYSIS

Any review of summary judgments begins with the proposition that they are subject to de novo review. Schroeder v. Bd. of Sup’rs. of La. State Univ., 591 So.2d 342 (La.1991). That is, the court of appeal reviews summary judgments by the same standards as does the trial court. Summary judgment is governed by La.Code Civ.P. arts. 966 and 967. Article 966, as amended by Act 483 of 1997, provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential facts of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La.Code Civ.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

We need not determine that Iota is immune and that Iota negated one or more of the essential elements of tort; for Iota to prevail, we need only find that it is immune or that the essential elements of tort have been negated. We choose to focus our attention on the tort elements of Dupre’s claim.

|4The Louisiana Supreme Court has provided the analytical framework for actions such as this:

[I]n order for liability to attach under a duty/risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element).

Rando v. Anco Insulations, Inc., 08-1163, 08-1169, pp. 26-7 (La.5/22/09), 16 So.3d 1065, 1086.

Whether a duty is owed is a legal question. Id. The supreme court has stated that the inquiry initially asks whether the plaintiff can cite any law, either legislative or jurisprudential, to support his claim that the defendant owed him a duty. Id. Here, Dupre cites La. R.S. 32:863.1 in support of his claim. The law recognizes that Iota has a duty to impound vehicles that do not contain one of four prescribed documents demonstrating liability insurance, bonding, or qualified self-insurance. La. R.S. 32:861.

Officers Miller and Short did not impound the vehicle. Therefore, a breach of the duty to impound was demonstrated by Dupre.

Cause-in-fact is, by definition, a question of fact. To determine whether cause-in-fact is established, courts ask whether a defendant’s conduct was a substantial factor generating plaintiffs harm. Rando, 16 So.3d 1065. There can be more than one cause-in-fact of an accident, as long as each bears a proximate relation to the harm and each is substantial in nature. Id.

In the present matter, Officers Short and Miller seized the license plate, issued |Ba green sticker, and refused to allow Atchison to remove the vehicle from the scene of the stop. They further refused to allow the vehicle to be released to just anyone, but required a seemingly responsible adult to remove the vehicle from the scene. They were not authorized by La. R.S. 32:863.1 to prevent Atchison from, at some future point, operating a motor vehicle. They did prevent him from operating the vehicle at that point. Additionally, they advised Atchison that he was obligated to obtain insurance within three days. The accident occurred nine days after the stop, during which time Atchison had ample opportunity to get the vehicle insured. Lastly, it was not the vehicle that posed the danger to Dupre; it was the driver. Given these circumstances, we find that it was not reasonably foreseeable that Atchison would cross the center line of the highway and strike Dupre. In that regard, Atchison’s negligence is an intervening cause that superceded any breach of duty by Iota. See Adams v. Rhodia, Inc., 07-2110 (La.5/21/08), 983 So.2d 798. We agree with the trial court that the failure to impound the vehicle was not a substantial factor in the accident.

Further, and assuming arguen-do that the breach of duty was a cause-in-fact of the accident, we find that it would not represent the legal cause of the accident. Legal cause determinations are not matters of fact, but of law. Rando, 16 So.3d 1065. Whether a defendant’s conduct constitutes the legal cause of injury results from inquiring into whether the injury was foreseeable and whether there is a natural ease of association between the conduct and the harm. Id. For the reasons we enunciated above, regarding the nature of Atchison’s fault as an intervening cause, and the discussion regarding foreseeability in that context, the omission of the officers to impound Atchison’s vehicle was not the legal cause of Dupre’s harm.

|,¡CONCLUSION

The fact that Atchison was not insured was not a necessary antecedent of Dupre’s accident. It was the fact that he was operating a vehicle at all. The failure to impound his truck is too far removed from the scope of Iota’s duty to constitute a substantial factor in bringing about the accident, and is neither reasonably foreseeable nor easily associated with Dupre’s harm. The judgment of the trial court is affirmed. Costs of this appeal are taxed to Plaintiffs/Appellants, Henry Dupre and Dupre & Son Floor Covering, Inc.

AFFIRMED.

GENOVESE, J., concurs in the result.

CHATELAIN, J., concurs in the result and assigns written reasons.

CHATELAIN, Judge,

concurring in the result.

hi agree with the authoring judge’s determination that the trial court properly granted the motion for summary judgment filed by the Town of Iota (Iota). However, I write separately because I find the opinion improperly elides the concepts of cause-in-fact and legal cause and improperly applies the concept of an intervening cause.

“[Cjonduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm.” Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 482, 137 So.2d 298, 302 (1962). Negligent conduct is a substantial factor if the harm would not have occurred without the conduct, i.e., but for defendant’s conduct, plaintiff would not have sustained injury. Id. Thereby, our supreme court “equated the two concepts of substantial factor and necessary antecedent.” Rando v. Anco Insulations Inc., 08-1163, p. 32 (La.5/22/09), 16 So.3d 1065, 1089 (citing Malone and Johnson, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363, 373 (1970)).

Applying that test to the present case, I find that Iota’s actions in allowing Atchi-son to retain possession of his vehicle was a eause-in-fact of this accident. Simply stated, but for Iota’s failure to impound Atchison’s vehicle this particular accident with this vehicle would not have happened. Notwithstanding, I do not find Iota’s actions were the legal cause of this accident.

|2“ ‘Cause’ in legal cause [asks] whether a legal standard of care exists and requires delving into policies for and against extending the asserted legal standard of care to protect the particular plaintiff against the particular harm.” Todd v. State, Dep’t of Soc. Servs., Office of Cmty. Serve., 96-3090, p. 6 (La.9/9/97), 699 So.2d 35, 38. “[T]he extent of protection owed a particular plaintiff is determined on a case-to-case basis to avoid making a defendant an insurer of all persons against all harms.” Id. at 39; eee also Roberte v. Benoit, 605 So.2d 1032 (La.1991). There exist some instances where a risk may not be found within the scope of a duty if the circumstances of that particular injury to that plaintiff could not be reasonably foreseen or anticipated because there was no ease of association between that risk and the legal duty. See Hill v. Lundin & Aesoc., Inc., 260 La. 542, 256 So.2d 620 (1972).

“Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty.” Roberts, 605 So.2d at 1044. “The scope of protection inquiry asks whether the enunciated rule extends to or is intended to protect this plaintiff from this type of harm arising in this manner.” Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 294 (La.1993). Although it has been stated that “the determination of legal cause involves a purely legal question,” Todd, 699 So.2d at 39, this legal determination depends on factual determinations of foreseeability and ease of association. See Perkins v. Entergy Corp., 98-2081 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 410, aff'd, 00-1372 (La.3/23/01), 782 So.2d 606 (superseded by statute on other grounds).

18In the present case, the plaintiffs’ injuries could neither be reasonably foreseen nor anticipated because there was no ease of association between that risk and the legal duty. Although Iota’s initial inaction may have been a cause-in-fact of the accident, it was impossible and unreasonable to require Iota to anticipate that Atchison would attempt to drive a vehicle, whether his uninsured vehicle or any other one, and get into an automobile accident nine days after the initial traffic stop. Simply stated, the impoundment of the vehicle would only have prevented Atchison from driving that particular truck; it would not have prevented him from driving at all. Accordingly, I do not find that the failure of Iota to impound Atchison’s vehicle was the legal cause of this accident because the failure to impound his truck was too far removed from the scope of Iota’s duty.

I write further to comment on intervening cause and to indicate that I do not think it is applicable in the present case. It is well-established that an intervening cause is one which comes into play after the defendant’s negligent conduct has ceased but before the plaintiff suffers injury. Restatement (Second) of Torts § 440 (1965); 1 Dan B. Dobbs, The Law of Torts § 186 2001. In situations where an intervening force comes into play to produce the plaintiffs injury (or more than one cause of an accident), it has generally been held that the “initial tortfeasor will not be relieved of the consequences of his or her negligence unless [the] intervening cause superceded the original negligence and alone produced the injury.” Arcadian Corp. v. Olin Corp., 01-1060, p. 12 (La.App. 3 Cir. 5/8/02), 824 So.2d 396, 405, writ denied, 02-1930 (La.10/25/02), 827 So.2d 1174; Mendoza v. Mashburn, 99-499, 99-500, p. 16 (La.App. 5 Cir. 11/10/99), 747 So.2d 1159, 1168, writs denied, 00-37, 00-40, 00-43 (La.2/18/00), 754 So.2d 976, 957; Domingue v. State Dep’t of Public Safety, 490 So.2d 772 (La.App. 3 Cir.1986).

14As I appreciate the concept of intervening cause, a sine qua non for its application is a finding that the defendant is first found negligent. In the present case, I do not find that Iota was negligent because Iota’s failure to impound Atchison’s vehicle was not the legal cause of the accident. Therefore, there being no underlying negligence on Iota’s part, there cannot be an intervening cause.

      . Plaintiffs named the "City of Iota" as defendant. Iota answered as the “Town of Iota.”

      . For an excellent discussion of whether legal cause is purely a question of law see Justice Weimer’s appellate court opinion in Perkins v. Entergy Corp., 98-2081 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 410, n. 52, aff'd, 00-1372 (La.3/23/01), 782 So.2d 606.


author: TERRI F. LOVE, Judge.

text:
    Juliette Littlejohn VAPPIE, Wife of and James Vappie v. Dr. Marianne MAUMUS.
    No. 2009-CA-1038.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 2010.
    Rehearing Denied May 28, 2010.

      Charles R. Ward, Jr., Covington, LA, Suzette P. Bagneris, The Bagneris Firm, L.L.C., New Orleans, LA, for Juliette Littjohn Vappie & James Vappie.
    Susan E. Henning, Suzanne F. LaNasa, Curry & Friend, APLC, New Orleans, LA, for Dr. Marianne Maumus, Louisiana Patient’s Compensation Fund/Louisiana Patient’s Compensation Fund Oversight Board.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

| .¿This appeal arises from injuries sustained as a result of alleged medical malpractice resulting in avascular necrosis and bilateral hip replacement. We find that the jury did not commit manifest error and affirm. However, we find that the trial court erred by awarding damages for future pain and suffering and reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Juliette Vappie learned that she was suffering from a miscarriage in August 1996. After becoming upset about the miscarriage, Mrs. Vappie began to experience urticaria. After taking Benadryl, Mrs. Vappie telephoned her doctor for an appointment, but he was unavailable. However, Dr. Marianne Maumus was able to see Mrs. Vappie. James Vappie, Mrs. Vappie’s husband, drove Mrs. Vappie to see Dr. Maumus. After meeting with Mrs. Vappie, Dr. Maumus concluded that Mrs. Vappie was suffering from urticaria and prescribed Vistaril and prednisone. Mrs. Vappie took approximately twenty seven of the forty prescribed prednisone pills. In April 1997, Mrs. Vappie was diagnosed with bilateral avascular necrosis (“AVN”). As a result, Mrs. Vappie underwent a left hip replacement surgery in November 1997, and a right hip replacement surgery in December 2003.

Mrs. Vappie filed a complaint against Dr. Maumus alleging that the AVN was 13steroid induced. However, the medical review panel (“MRP”) found that Dr. Mau-mus did not fail to meet the applicable standard of care by prescribing predni-sone. Accordingly, Mr. and Mrs. Vappie then filed a petition for damages against Dr. Maumus and the Louisiana Patient’s Compensation Fund (“LPCF”).

Following a jury trial, the jury returned a verdict in favor of Mr. and Mrs. Vappie and attributed seventy-five percent of fault for Mrs. Vappie’s injuries to Dr. Maumus. The jury also awarded damages as follows:

Past medical expenses $111,444.32
Lost wages $30,726.56
Pain and suffering $250,000
Loss of enjoyment of life $100,000
Future medical expenses $150,000
Loss of consortium (Mr. Vappie) $50,000
Total $692,170.88

Considering Mrs. Vappie’s percentage of fault, the jury awarded $519,128.16 from Dr. Maumus and the LPCF. Both Dr. Maumus and Mr. and Mrs. Vappie filed motions for a judgment notwithstanding the verdict prior to the trial court entering the above judgment on the jury’s verdict. After a hearing on the motions, the trial court denied Dr. Maumus’ JNOV and granted Mr. and Mrs. Vappie’s JNOV. The trial court adjusted the fault allocation to attribute one hundred percent of the fault to Dr. Maumus and awarded $250,000 for future pain and suffering.

The LPCF then filed a petition for intervention seeking to participate in Dr. Mau-mus’ appeal. Dr. Maumus and the LPCF then filed a suspensive appeal, which was granted, and the trial court stated that neither party had to post a bond. However, following a motion to amend the order for appeal, the trial court ordered Dr. Maumus to post a bond and this appeal followed.

STANDARD OF REVIEW

Appellate courts review findings of fact by the jury using the manifestly ^erroneous or clearly wrong standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). As the reviewing court, we must determine if the factfinder’s conclusion was reasonable. Murphy v. City of New Orleans, 09-0567, p. 3 (La.App. 4 Cir. 11/12/09), 25 So.3d 956, 959. “[Wjhere two permissible views of the evidence exist, the factfinder’s choice between them cannot be clearly wrong.” Id. If this Court finds that there is a conflict in the testimony presented to the factfinder, then “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Rosell, 549 So.2d at 844. In regards to conclusions based on witness credibility, “only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Id.

The appellate court can find manifest error when “documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story.” Id. at 844-45. “But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Id. at 845.

MEDICAL MALPRACTICE

Dr. Maumus and the LPCF assert that the trial court committed manifest error by entering a judgment on the jury’s verdict, which found that Dr. Maumus committed malpractice and breached the standard of care and that prednisone caused Mrs. Yappie’s AVN.

“A physician is required to exercise that degree of skill ordinarily employed under similar circumstances by others in the profession and to use reasonable care, | r,diligence, and judgment.” Cascio v. Downing, 06-0570, pp. 4-5 (La.App. 4 Cir. 4/4/07), 957 So.2d 795, 799. In Louisiana medical malpractice actions the plaintiff must prove:

(1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La. R.S. 9:2794. Expert testimony is utilized to assist in proving these elements. Brown v. Tulane Med. Ctr. Hosp. and Clinic, 04-0688, p. 5 (La.App. 4 Cir. 5/9/07), 958 So.2d 87, 90. “Where medical experts express differing views, judgments and opinions, great deference is given to the fact-finder’s determinations” and will not be reversed unless no reasonable factual basis for them exists. Cascio, 06-0570, p. 5, 957 So.2d at 799. “Whether alleged malpractice constitutes negligence is a question for the jury.” Gamino v. Lakeside Hosp., 94-727, p. 15 (La.App. 5 Cir. 2/15/95), 652 So.2d 36, 42.

Medical Review Panel

The MRP found that Dr. Maumus did not fail to meet the applicable standard of care for the following reasons:

1. The prednisone was indicated for the patient’s presenting complaints.
2. Thirty mg of prednisone for one week and the tapered was acceptable.
3. Short courses of systemic corticosteroid therapy are considered safe.
|,;4. The risk of osteonecrosis in patients receiving steroid therapy is very low.

The Vappies

Mrs. Vappie testified that she was told that she was likely experiencing a miscarriage in August 1996 and she started breaking out with urticaria. Mrs. Vappie stated that she telephoned a nurse, one of her friends, who instructed her to take Benadryl because that is what a doctor advises. She testified that Mr. Vappie was with her the entire time that she was with Dr. Maumus. Mrs. Vappie stated that Dr. Maumus told them both that she had not seen a case like Mrs. Vappie’s since starting to practice medicine. Mrs. Vappie testified that her vital signs were not taken, that her urticaria was improving, and that she was not experiencing any trouble breathing.

Mrs. Vappie stated that Dr. Chad Millet, her treating orthopedic surgeon who performed the bilateral hip replacements, informed her that her AVN was steroid induced. She also testified that she had a left hip replacement surgery in November 1997, and a right hip replacement in 2003, with a pregnancy in between. After the surgeries, Mrs. Vappie stated that she still has back pain, a limp, and other difficulties related to her limited mobility.

On cross examination, Mrs. Vappie attested to taking approximately 270 milligrams of the prescribed prednisone. In regards to her statement that the urticaria was improving, Mrs. Vappie testified that she did not tell Dr. Maumus that her throat felt like it was closing. However, she then admitted that she was cautious about her airway closing. Mrs. Vappie could not remember if she mentioned to Dr. Maumus that she thought the urticaria was caused by a reaction to Chinese food. Mrs. Vappie stated that “I guess she thought it was severe. But I knew that it was going a way [sic].” Following her office visit, Mrs. Vappie sent Dr. Maumus a thank you note indicating that she was the woman experiencing a miscarriage whose airway was closing.

17Mr. Vappie testified that he was in the exam room with his wife the entire doctor’s visit. He also stated that Dr. Mau-mus did not take his wife’s blood pressure or pulse and performed no physical examination or wrote anything down.

Dr. Maumus

Dr. Maumus testified that she had two years of practice when she examined Mrs. Vappie. Contrary to the Vappies’ testimony, Dr. Maumus stated that she examined Mrs. Vappie alone at first, but brought Mr. Vappie in from the waiting room to go over medication instructions. Also converse to the Vappies’ testimony, Dr. Maumus stated that she took Mrs. Vappie’s blood pressure and pulse and indicated that the lack of a written record was an oversight. Dr. Maumus testified that she recalled Mrs. Vappie’s blood pressure was 115/80, pulse of 76, and that her heart had a regular rate and rhythm. Dr. Maumus did not record a respiratory rate. In regards to Mrs. Vappie’s chief complaint, Dr. Mau-mus testified that Mrs. Vappie complained of a rash possibly related to Chinese food. Dr. Maumus stated that Mrs. Vappie also said that she was suffering a miscarriage, experiencing mild shortness of breath, and that her throat felt like it was closing. Overall and contradictory to Mrs. Vappie’s testimony, Dr. Maumus testified that Mrs. Vappie informed Dr. Maumus that she thought her symptoms were worsening. Dr. Maumus observed that Mrs. Vappie “seemed to be breathing fairly comfortably.” Dr. Maumus did not believe that Mrs. Vappie was suffering from active an-gioedema, but was concerned about the earlier alleged symptoms of angioedema that could evolve.

Dr. Maumus’ examination revealed that Mrs. Vappie had multiple areas of urticaria that were worsening and that Mrs. Vappie informed her that the symptoms were getting worse. No written notes exist to prove the details of Dr. Maumus’ alleged examination. Dr. Maumus’ conclusion was that Mrs. Vappie was suffering from a food or acute anxiety reaction and prescribed prednisone because of Mrs. Vappie’s alleged | ^respiratory complaints, in order to prevent anaphylaxis. Additionally, Dr. Maumus decided that prednisone was needed because Mrs. Vappie previously self-administered Benadryl, but continued to experience the sensation that her throat was closing, the shortness of breath, and acute urticaria that appeared to be progressing with some angioedema. However, Dr. Maumus did not write down angi-oedema in her notes.

Dr. Maumus disagrees with the conclusion that Mrs. Vappie’s AVN was steroid-induced. She told the MRP that steroids were not usually prescribed for urticaria, but that the prednisone was warranted in Mrs. Vappie’s case. Dr. Maumus testified that the benefits of the prednisone outweighed the risks. At the time, she believed that AVN caused by short course steroids was extremely rare. Finally, Dr. Maumus stated that if Mrs. Vappie’s rash was milder, she may not have prescribed prednisone.

Competing Medical Testimony

A portion of Dr. John McGee’s deposition was read to the jury in lieu of live testimony. Dr. McGee, Mr. and Mrs. Vap-pies’ medical expert, stated that the prescription of steroids was not his first choice of therapy for urticaria and that the main treatment for urticaria is antihistamines. Dr. McGee also stated that prescribing prednisone was a deviation from the standard of care even if Dr. Maumus performed a complete physical examination, which showed that Mrs. Vappie’s urticaria was virulent with airway constriction issues, because more antihistamines and epinephrine should have been administered first. His opinion was that Dr. Mau-mus should have tried more antihistamines because the information he possessed demonstrated that the Benadryl improved the urticaria. If Mrs. Vappie presented with respiratory problems or angioedema, then epinephrine should have been prescribed. Dr. McGee believed that prednisone should have been utilized with severe respiratory symptoms, like asthma or bron-chospasm. Dr. McGee also stated that there was no evidence that Dr. Maumus took 19Mrs. Vappie’s vital signs during the office visit. Finally, based on the temporal relationship, Dr. McGee opined that the hip replacements were most likely related to the prednisone.

Dr. Millet testified, through a videotaped deposition, that he had seen patients who ingested fewer steroids than Mrs. Vappie and developed AVN. He concluded that Mrs. Vappie’s AVN was steroid-induced because she did not have any other risk factors. However, Dr. Millet stated that he did not perform an in-depth analysis, but that he did not find any indication that Mrs. Vappie suffered from an autoimmune disease. Further, Dr. Millet testified that he would not prescribe predni-sone for a rash, but that the decision was outside of his expertise.

Dr. Melville Sternberg, a defense expert in internal medicine and a member of the MRP, testified that prednisone is used in a wide variety of situations. Dr. Sternberg stated that the MRP’s decision was unanimous that Dr. Maumus did not breach the standard of care. He found no correlation between small doses of steroids and AVN. Dr. Sternberg also stated that the risk of developing steroid-induced AVN was not increased if the patient was pregnant. Dr. Sternberg agreed with Dr. McGee that steroid usage for urticaria was not routinely necessary, but that, if necessary, short course oral administrations are preferred over injections.

In his opinion, the lack of recorded vital signs from Mrs. Vappie’s office visit did not constitute a deviation from the standard of care. While the depositions were not taken until after the MRP, Dr. Stern-berg testified that he subsequently read them, but his opinion that Mrs. Vappie’s AVN was not steroid induced did not change. Dr. Sternberg testified that Mrs. Vappie’s dosage of approximately 270 milligrams of prednisone was a very low dose. Dr. Sternberg also stated that the actions of Dr. Maumus were correct.

Dr. Merlin Wilson, a defense expert in internal medicine, allergy and | inimmunology, and rheumatology, testified that in most AVN cases, the cause cannot be identified. However, he stated that there was no evidence to support that 270 milligrams of steroids would cause AVN. Dr. Wilson then testified that urticaria was a common reason for prescribing predni-sone. He stated that nothing demonstrated that Dr. Maumus deviated from the standard of care. Dr. Wilson concluded that it appeared that Mrs. Vappie was suffering from giant urticaria and that the administration of epinephrine would have worn off in about thirty minutes. While he does not believe Mrs. Vappie’s AVN was steroid-induced, he acknowledged that some doctors think that only one shot of steroids creates a risk of steroid-induced AVN. Finally, Dr. Wilson stated the scientific articles and data he relied upon indicate that Mrs. Vappie’s AVN was not caused by steroids even though three of her treating physicians allegedly believe that her AVN was steroid-induced.

Breach & Causation

The testimony reflects that the dispute arises as to Dr. Maumus’ examination of Mrs. Vappie and the amount of steroids needed to cause the risk of developing AVN. After considering the testimony regarding the above, the jury then decided whether Dr. Maumus breached the standard of care by prescribing Mrs. Vappie prednisone for urticaria. The record reflects that the medical experts disagreed as to the amount of steroids needed to create the risk of developing AVN. Conflicting opinions also exist as to whether Dr. Maumus breached the standard of care.

Dr. McGee believed that Dr. Maumus breached the standard of care by prescribing prednisone for urticaria and Dr. Millet said that, while it was outside his area of expertise, he would not have prescribed steroids for urticaria. Drs. McGee and Millet also believed that Mrs. Vappie’s AVN was steroid-induced. Given the competing medical testimony, we cannot find that the jury erred in finding that Dr. 1n Maumus breached the standard of care and that Mrs. Vappie’s AVN was caused by the prednisone.

JNOV

Dr. Maumus and the LPCF contend that the trial court committed legal error by awarding $250,000 for future pain and suffering because the jury’s verdict provided $250,000 for pain and suffering without a past or future designation.

“A JNOV is a procedurally correct device for raising an unreasonable damage award.” Verret v. Carline, 93 0508, p. 3 (La.App. 1 Cir. 3/11/94), 634 So.2d 37, 39. “A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict.” Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). The reviewing court “should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.” Id. First, the reviewing court must evaluate whether the trial court erred by granting the JNOV. Davis v. Wal-Mart Stores, Inc., 00-0445, p. 5 (La.11/28/00), 774 So.2d 84, 89; Torrejon v. Mobil Oil Co., 03-1426, p. 5 (La.App. 4 Cir. 6/2/04), 876 So.2d 877, 885. Second, if the trial court properly granted the JNOV, the appellate court reviews the JNOV utilizing the manifest error standard of review. Torrejon, 03-1426, p. 5, 876 So.2d at 885.

The trial judge charged the jury regarding damages and the pertinent portion follows:

[Y]ou should consider general damages and special damages. By general damages we mean a sum of money in which you feel would fairly compensate the plaintiff for the pain, suffering, mental anguish, and disability which she has suffered or will probably suffer in the future as a result of the fault of the defendant.
_Il2- • • ’
The law does recognize that the length of time that pain and suffering and mental anguish will last and the degree of its severity cannot be divorced from a determination of how much it is worth. Therefore, it is permissible for you to consider the intensity and duration of the pain and suffering in determining your award. (Emphasis added).

The jury interrogatories did not delineate between past and future pain and suffering. The jury verdict form interrogatories, in regards to pain and suffering, read as follows:

4. If you answered “yes” to the preceding question, state the amount of damages, if any, to be awarded to the plaintiff for:
Past Medical Expenses
Lost Wages_
Pain And Suffering_
Loss of Enjoyment of Life

In relation to past and future damages, the verdict form included a separate interrogatory for future medical expenses.

Mr. and Mrs. Vappie allege that the jury erred by not awarding damages for future pain and suffering. However, the jury was not asked to award separate damages for past and future pain and suffering. Instead, the verdict form permitted a general allotment for pain and suffering. The jury thusly awarded $250,000 for pain and suffering.

Resolving all inferences in favor of the non-moving party, we find that reasonable men could differ as to the amount of pain and suffering damages Mrs. Vappie should be awarded. Given the record before this Court, the jury was instructed to consider “the pain, suffering, mental anguish, and disability which she has suffered or will probably suffer in the future.” Thus, when the jury awarded $250,000 for pain and suffering, if it followed the trial court’s jury charge, the award included past and future pain and suffering. Accordingly, we find that the trial court erred when it granted Mr. and Mrs. 113Vappie’s JNOV by awarding $250,000 for future pain and suffering and reverse.

DECREE

For the above mentioned reasons, we find that the trial court did not commit manifest error by entering a judgment on the jury’s verdict and affirm in part. However, we find that the trial court committed a legal error by granting Mr. and Mrs. Vappie’s JNOV to award $250,000 for future pain and suffering and reverse in part.

AFFIRMED IN PART; REVERSED IN PART.

      . Urticaria is more commonly known as hives.

      . Avascular necrosis is also referred to as osteonecrosis.

      . Dr. Maumus and the LPCF did not appeal the reallocation of one hundred percent fault.

      . The record is devoid of evidence that Mr. and Mrs. Vappie objected to the jury charge or to the substance of the jury verdict form interrogatories.


author: JAMES F. McKAY III, Judge.

text:
    Anne M. MANUEL v. REGIONAL TRANSIT AUTHORITY, et al.
    No. 2009-CA-1256.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 2010.
    Rehearing Denied May 26, 2010.
    Edwin R. Fleischmann, Jr., Fleisehmann Law Firm, Metairie, Louisiana, for Plaintiff/Appellant.
    Craig B. Mitchell, Christopher D. Wilson, Mitchell and Associates, APLC New Orleans, Louisiana, for Defendants/Appel-lees.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR.).
   JAMES F. McKAY III, Judge.

| j Plaintiff, Anne M. Manuel, appeals the trial court judgment granting a motion for summary judgment in favor of defendants, Regional Transit Authority and Transit Management of Southeast Louisiana (collectively “RTA”). For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On August 15, 2003, Ms. Manuel and her father, Joseph Manuel, boarded RTA streetcar No. 463 at the foot of Canal Street in New Orleans, Louisiana. The petition for damages filed in this matter alleges that as Ms. Manuel stepped onto the streetcar step with her left foot, the step wobbled, causing her to lose her balance and throw all her weight onto her right foot. Although Ms. Manuel did not actually fall, she claims to have hyperex-tended her right leg.

RTA filed a motion for summary judgment asserting that Ms. Manuel failed to meet her burden of proving that there was a defect on the streetcar for which RTA can be held responsible. The matter was brought before the trial court on June 26, 2009. Judgment was rendered on June 30, 2009, granting RTA’s motion for summary judgment and dismissing Ms. Manuel’s claim in its entirety. This timely devolu-tive appeal followed.

^DISCUSSION

Appellate courts review the grant or denial of a motion for summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 765 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

An appellate court asks the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Government, 2004-0066, p. 5 (La.7/6/04), 880 So.2d 1, 5. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hardy v. Bowie, 98-2821, p. 6 (La.09/08/99), 744 So.2d 606, 610.

In support of the motion for summary judgment, RTA introduced the following documentation:

1. Affidavit of Eddy Moore, Director of Maintenance for RTA.

13After reviewing RTA maintenance and repair records for streetcar No. 463 from March 12, 2003, through April 17, 2009 (the date of the affidavit), Mr. Moore stated: 1) there is no evidence of any defect or problem with the step or related mechanism on August 15, 2003; 2) there is no documentation of any complaints, repairs or maintenance to the step or related mechanism prior to August 15, 2003; 3) there is no evidence of any notice to RTA of any problem with the step or related mechanism prior to August 15, 2003; 4) the broken door rod noted in the January 28, 2004 maintenance record has absolutely no effect on the deployment and stability of the step; 5) the step will deploy as normal even if the door rod is broken; 6) a broken door rod only means that that side of the door will not open or close; 7) the door and the step are not connected mechanically in any manner; 8) there is no evidence that the door rod was malfunctioning on August 15, 2003; and 9) if the door rod had been broken or malfunctioning on or before August 15, 2003, it would have been obvious and would have been immediately addressed, and not delayed over five months until January 28, 2004.

2. Deposition testimony of Wilbert Mullet, Superintendent of Rail for RTA.

Mr. Mullet explained in his deposition that the step is automatically deployed and locked into place when the door is opened. He further explained that a defective or broken part could prevent the step from fully deploying when the door is opened. However, Mr. Mullet testified that there was no record of a repair order relating to the step of streetcar No. 463. Moreover, he testified that he never heard of anyone complaining of a loose step or allegedly falling because of a loose step.

3. RTA maintenance and repair records from March 13, 2003, through February 10, 2004.

14The maintenance records reveal that routine sixty-day preventative maintenance inspections were performed on streetcar No. 463. Prior to the incident in question, inspections were performed on March 12, May 14, and July 17 of 2003. The check lists generated in connection with the inspections reflect no repairs or defects relating to the step.

4. Deposition testimony of Ms. Manuel.

Ms. Manuel testified in her deposition that her father entered the streetcar ahead of her, without any difficulty. She stated: “I had my left foot on the step and I put my right leg on the platform and the step wobbled. In order for me not to hit my head on the money machine I had to put all my weight on my right leg ... I hurt my leg in the process.” Ms. Manuel further testified that the streetcar operator saw her stumble and asked if she was ok. Ms. Manuel told the operator her leg was hurting, but she did not mention anything in reference to the step. Finally, she stated that she did not know what was wrong with the step, but she guessed it was loose.

In opposition to the motion for summary judgment, Ms. Manuel introduced her own affidavit, reiterating the statements made in her deposition that it was her impression that the step was loose. Ms. Manuel also introduced photographs taken by her attorney and his assistant, Carol May, of streetcar No.2002 and streetcar No. 461 (two streetcars not involved in this incident), and the affidavit of Ms. May. The photographs show a step that is not fully deployed, i.e., not completely horizontal, while the door is fully open. Ms. May states in her affidavit that she was present in late October or early November of 2003 when the photographs were taken on behalf of Ms. Manuel. She stated she observed both of the streetcars with doors fully opened while the steps were not fully deployed. With respect to Rstreetcar No. 461, Ms. May stated she observed a passenger step onto the left side of the step, causing it to go down, locking it into place and making it fully deployed for the next passenger.

In Jacobs v. Regional Transit Authority, 2003-2158, p. 3 (La.App. 4 Cir. 4/14/04), 872 So.2d 571, 573, this Court explained the proper standard to be applied in cases involving the RTA as follows:

Pursuant to La. R.S. 48:1656(23), as amended by Acts 199, No. 735, effective August 15, 1995, the RTA is not considered a common carrier in a suit for personal injuries. As such, the RTA is not held to the previous higher standard of care that allowed a plaintiff to make out a prima facie case of liability merely by showing that he/she was a fare-paying passenger and sustained an injury, thereby shifting the burden to the RTA to exculpate itself from liability. The 1995 amendment to La. R.S. 48:1656(23) states:
Notwithstanding the provisions of any other law to the contrary, including the provisions of R.S. 45:161 et seq., the authority created herein shall not be deemed a “person” as defined in R.S. 45:162(12) or a “common carrier” as defined in R.S. 45:162(5) nor shall the authority be construed or interpreted to be such. Additionally, the authority shall not be deemed to be a common carrier, or interpreted to be such by any court of this state in a suit for personal injury or property damage. (Emphasis added).

As this Court stated in Jacobs, absent the stricter standard of proof for common carriers, the proper standard is general negligence. Id,.; See also Whitley v. Regional Transit Authority, 2005-0433 (La.App. 4 Cir. 7/20/05), 913 So.2d 169.

In the present case, Ms. Manuel argues that if the step was not fully deployed when the doors were fully opened on streetcars No.2002 and 461, it raises genuine issues of fact regarding the streetcar in question. We disagree. The documentation introduced by RTA in support of its motion for summary judgment clearly demonstrates that there is no evidence of any defect, repair, or complaint regarding the step on streetcar No. 463 for the six months before and after this | (¡incident. Ms. Manuel has presented nothing to counter this affirmative evidence. Moreover, the information relating to the other streetcars does not raise questions of fact in Ms. Manuel’s case, particularly in light of the fact that no evidence or expert testimony has been presented to support what appears to be an assertion of a defective design of the streetcar steps.

Ms. Manuel further argues (based on Ms. May’s observations regarding streetcars No.2002 and 461) that if the step is not fully deployed and not locked into place, the first passenger who steps onto it will find the step loose or wobbly until the full weight of the passenger causes the step to lock into place. This argument lacks merit. Ms. Manuel testified that her father boarded the streetcar ahead of her. Even under the scenario proposed by Ms. Manuel, the step would have locked into place when Ms. Manuel’s father placed his weight on the step. Moreover, as previously stated, the observations made of the two unrelated streetcars have no bearing on this action.

CONCLUSION

Following our de novo review of the record, we find that Ms. Manuel failed to provide any evidence to create an issue of material fact regarding the negligence of RTA; therefore, Ms. Manuel failed to carry her burden to defeat summary judgment in this case. Accordingly, we find no error in the trial court’s conclusion that RTA was entitled to summary judgment as a matter of law. The judgment of the trial court is affirmed.

AFFIRMED.


author: DREW, J.

text:
    Burnette ARMSTRONG, Plaintiff-Appellant v. LOUISIANA FEDERATION OF TEACHERS PEG/FUSE ORGANIZING PROJECT, et al., Defendant-Appellee.
    No. 45,125-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      Jacobs, Sarrat & Lovelace, by Darleen M. Jacobs, Rene D. Lovelace, for Appellant.
    Hurlburt, Privat & Monrose, by Shannon Seiler Dartez, for Appellees.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

hBurnette Armstrong appeals a judgment granting the exception of prescription and dismissing her workers’ compensation claim for indemnity benefits.

We affirm.

FACTS

Burnette Armstrong injured her back and neck in a May 30, 2002, automobile accident while working as a union recruiter for the Louisiana Federation of Teachers PEG/FUSE Organizing Project (“LFT”). Armstrong received medical benefits from her employer for treatment of her injury, but continued working until July of 2008, when she underwent back surgery. She was last paid by LFT on January 2, 2009.

Armstrong filed a disputed claim for compensation against LFT and Fireman’s Fund Insurance Company. The claim was received by the Office of Workers’ Compensation on December 29, 2008. Armstrong asserted that defendants had refused to pay indemnity benefits, and that her wages were being terminated after having received them in lieu of workers’ compensation benefits.

LFT filed the exception of prescription. Armstrong argued in opposition to the exception that after the accident she continued to work and receive her full salary in lieu of receiving workers’ compensation indemnity benefits, thereby interrupting prescription on her claim for indemnity benefits.

Armstrong’s supervisor, Audrey George, testified at the hearing on the exception that Armstrong earned her salary and never received wages | ¿that she did not earn. Armstrong did not testify, but her affidavit that had been submitted with her memorandum in opposition to the exception was read into the record at the hearing.

The WCJ concluded that the claim had prescribed on its face, and that Armstrong failed to prove that prescription had been interrupted or suspended. The WCJ noted that no evidence was presented to contradict George’s testimony, and there was no evidence indicating that services rendered by Armstrong were not commensurate with the wages she received. Accordingly, the WCJ granted the exception of prescription. Armstrong has appealed.

DISCUSSION

At the time of Armstrong’s accident, La. R.S. 23:1209 provided, in part:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

|sThus, under La. R.S. 23:1209(A), claims are barred unless filed: (1) within one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment of supplemental earnings benefits; or (3) one year from the time the injury develops if not immediately manifested, but no more than two years after the accident. Jackson v. General Motors Truck Plant, 38,987 (La.App.2d Cir.10/27/04), 886 So.2d 603.

The payment to a claimant of wages in lieu of compensation interrupts prescription. Bledsoe v. Willowdale Country Club, 94-234 (La.App. 5th Cir.9/27/94), 643 So.2d 1302. “Wages in lieu of compensation” are defined as unearned wages paid to an employee after an injury, and thus if the employee actually earns the wages paid to her, they are not “wages in lieu of compensation” and do not interrupt prescription for workers’ compensation claims. See Krieg v. Krieg Bros. Tetrazzo Co., Inc., 93-1065, (La.App. 3d Cir.9/28/94), 645 So.2d 661, writ denied, 95-0152 (La.3/30/95), 651 So.2d 837.

The basic test is whether the wages paid subsequent to the injury were actually earned. The mere fact that the duties before and after the accident were similar or dissimilar, heavier or lighter, is relevant but not determinative of the issue. Heymann v. Dixie Leasing Corp., 250 So.2d 118 (La.App. 4th Cir.1971).

Although medical benefits were paid on Armstrong’s behalf, the payment of these benefits did not interrupt prescription on the claim for |4other benefits. As explained in Melancon v. Meadow Brook Rehab., 2003-1255, p. 6 (La.App. 3d Cir.4/7/04), 869 So.2d 989, 993:

The claim for medical benefits, filed nearly two years after the date of the accident, was timely. However, this claim was not timely for purposes of interrupting prescription as to claims for indemnity benefits. Because La. R.S. 23:1209 establishes different prescriptive periods for different types of workers’ compensation benefits, it can be inferred that interrupting prescription as to only one type of claim would not interrupt prescription as to every potential claim that an employee might make. If this were so, each type of benefit would have the same prescriptive period; however, they do not.

See also McElwee v. City of Bossier City, 34,345 (La.App.2d Cir.12/6/00), 775 So.2d 588, writ denied, 2001-0049 (La.3/9/01), 786 So.2d 737.

Armstrong’s job as a LFT representative was to act as the face of LFT in North Louisiana, and primarily in Lincoln, Oua-chita, and Webster Parishes, by visiting with teachers and school employees and recruiting them to join the union. She was required to make six to eight site visits a week from October to July, and ten to twelve a week during a back-to-school push.

George testified that following the 2002 accident, Armstrong performed her job just like any other LFT representative, and the same job performance was expected of her as was expected of all the other recruiters. George regarded Armstrong as a complete union representative and who was her best recruiter as she outperformed all the other recruiters. She believed that Armstrong earned her salary.

Armstrong stated in her affidavit that her last day on the active payroll for LFT was December 31, 2008, and that she received her regular salary between May 31, 2002, and December 15, 2008. She further asserted |sthat at least once a year between May 31, 2002, and December 15, 2008: (i) she was unable to perform her full duties; (ii) she was unable to go to a work site because of pain from the accident; (iii) she was unable to drive for more than four hours at a time because of pain from the accident, causing her either to fly to conventions or miss them; and (iv) she had help from her supervisor or other LFT employees when lifting. Armstrong claimed that prior to the accident, she was able to perform her full duties, was never unable to go to a job site because of pain, was able to drive for more than four hours at a time, and did not need help lifting.

George admitted that Armstrong had missed conventions in Atlanta between 2002 and 2007 because she was unable to remain in a car for a trip as far as from Monroe to Atlanta. George also lifted boxes for Armstrong if they were too heavy, although sometimes Armstrong would repackage the contents into lighter loads that she could handle.

George stated that even when Armstrong did not return to work after July of 2008, she was still paid as it was considered sick leave. Armstrong was placed on inactive status on December 31, 2008, when she had yet to return to work and LFT did not have an anticipated date of return for her.

When evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261.

The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id.

Armstrong was involved in the car accident in 2002. She filed her claim for compensation in 2008. Prescription was evident from the face of the claim, and the trial court was not clearly wrong in finding that Armstrong failed to establish an interruption of prescription by the payment of wages in lieu of compensation.

CONCLUSION

At Armstrong’s cost, the judgment is AFFIRMED.