author: EZELL, Judge.

text:
    John THIBODEAUX, et al. v. GULFGATE CONSTRUCTION, LLC, et al.
    CA 18-676
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Melvin A. Eiden, Blake T. Couvillion, Rabalais & Hebert, 701 Robley Drive, # 210, Lafayette, LA 70503, (337) 981-0309, COUNSEL FOR DEFENDANT/APPELLANT: J.M. Drilling, LLC
    Edward O. Taulbee, IV, Taulbee & Associates, P.O. Box 2038, Lafayette, LA 70502-2038, (337) 269-5005, COUNSEL FOR PLAINTIFFS/APPELLEES: Amy Thibodeaux, John Thibodeaux, John and Amy Thibodeaux obo Gabrielle Thibodeaux, John and Amy Thibodeaux obo Emily Thibodeaux
    Max Michael Menard, P. O. Box 1196, Youngsville, LA 70592, (337) 857-6123, COUNSEL FOR PLAINTIFFS/APPELLEES: Amy Thibodeaux, John Thibodeaux, John and Amy Thibodeaux obo Gabrielle Thibodeaux, John and Amy Thibodeaux obo Emily Thibodeaux
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Candyce G. Perret, Judges.
   EZELL, Judge.

In this matter, J.M. Drilling ("J.M.") appeals decisions of the trial court below granting summary judgment in favor of John Thibodeaux on the issue of liability, excluding some of its expert testimony, and denying its motions for judgment notwithstanding the verdict (JNOV) or new trial. J.M. further appeals the jury awards made to Mr. Thibodeaux and his spouse as excessive. For the following reasons, we affirm the decision of the trial court, as amended.

The facts of this matter were described by this court in our previous case, Thibodeaux v. Gulfgate Construction, LLC , 17-495, pp. 1-2 (La.App. 3 Cir. 11/22/17), 234 So.3d 100, 102, writ denied , 17-2149 (La. 2/23/18), 237 So.3d 519, as such:

This negligence matter arose on June 9, 2015, when Plaintiff, John Thibodeaux, injured his right leg while splicing fiber optic cable on behalf of his employer, American Telephone & Telegraph (AT & T), at 114 Meadow Gate Drive in the Sawgrass subdivision in Lafayette, Louisiana. Thibodeaux had to access hand holes, which are rectangular, underground vaults where fiber optic cables come together and are spliced. The two hand holes at issue were equipped with covers, i.e., lids, which rested on top of the ground. They were located near a rectangular, pre-cast slab which held an AT & T cabinet. On the day of his accident, Thibodeaux lifted a hand hole cover and placed it by the AT & T cabinet when the ground beneath him gave way, causing his right leg to fall into a hole, sustaining injury.
Prior to Thibodeaux's accident, Gulfgate Construction and J. M. Drilling performed work on the property pursuant to separate contracts with AT & T. Gulfgate Construction's job, which was the F1 part of the project, consisted of preparing a pre-cast slab, installing a cabinet on top of the pre-cast slab, digging two hand holes, and feeding fiber optic cable into hand hole number two. After Gulfgate Construction finished its job, J. M. Drilling performed the F2 part of the project, which consisted of installing fiber optic lines by accessing the hand holes and feeding the cable out to the rest of the subdivision.
It is alleged that during operations on the property ... J. M. Drilling struck and damaged an underground sewer force main line. The main line purportedly began leaking and caused a washout under the pre-cast slab upon which the AT & T cabinet was situated, ultimately forming the hole into which Thibodeaux fell. The main line, which ran from a sewer lift station on the property to the street, belonged to Water & Wastewater Utilities, Inc. (Wastewater), the owner and operator of the lift station. Gulfgate Construction repaired Wastewater's broken main line after Thibodeaux's accident. Wastewater had not marked its main line prior to the commencement of work performed by Gulfgate Construction and J. M. Drilling. The hand holes had to be repositioned as a result of the existence of the underground main line.
On August 24, 2015, Thibodeaux and his wife, Amy, individually and on behalf of their minor daughters, Gabrielle and Emily, filed suit against [J.M. Drilling,] Gulfgate Construction, Milton Water System, Inc., and Wastewater.

Gulfgate and the remaining Defendants in the suit were dismissed on summary judgments, which were upheld by this court and had writs denied by the supreme court. J.M. remains as the only defendant in this case.

Mr. Thibodeaux then filed a motion for summary judgment on the issue of liability, which was granted by the trial court. The suit then proceeded to a jury for the determination of damages. The jury awarded Mr. Thibodeaux, among other amounts, future medical expenses in the amount of $ 500,000.00; loss of future earning capacity in the amount of $ 2,275,000.00; loss of household services in the amount of $ 90,000.00; and loss of consortium to Mrs. Thibodeaux in the amount of $ 150,000.00. From that decision, J.M. appeals.

On appeal, J.M. asserts six assignments of error. J.M. claims that the trial court erred in granting Mr. Thibodeaux's motion for summary judgment on the issue of liability; it claims in separate assignments of error that the jury awards were excessive for future medical expenses, loss of future earning capacity, and loss of consortium; that the trial court erred in granting Mr. Thibodeaux's motion in limine precluding the testimony of Dr. Greg Gidman as duplicative; and it claims the trial court erred in denying its motion for new trial/JNOV.

SUMMARY JUDGMENT

J.M. first claims that the trial court erred in granting summary judgment in favor of Mr. Thibodeaux on the issue of liability, as it claims genuine issues of material fact exist as to the cause of the hole. We disagree.

Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review. Jackson v. City of New Orleans , 12-2742, 12-2743 (La. 1/28/14), 144 So.3d 876, cert. denied , --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014).

The burden of proof is on the mover unless the mover will not bear the burden of proof at trial, in which case the mover is not required to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. La.Code Civ.P. art. 966(D)(1). "The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law."Id.

"After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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.Code Civ.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact 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.

Jackson , 144 So.3d at 882.

J.M. claims that the trial court erred in granting Mr. Thibodeaux's motion for summary judgment, as there exists a genuine issue of material fact as to the cause of the damage to the pipe. J.M. claims that the testimony of its employee, Mark Moore, that the J.M. crew never hit the pipe was sufficient to defeat the motion for summary judgment. We disagree.

The depositions and exhibits in the record paint a clear picture of what happened to cause the sinkhole that injured Mr. Thibodeaux. The pipe at issue was pressure tested and found to be working with no leaks as of December 9, 2014. Gulfgate and J.M. were the only contractors to work on the lot after that time. John Smith, a contractor for Gulfgate, testified that they uncovered the pipe while installing the hand holes that the fiber optic line would run through in January of 2015. They uncovered roughly ten to fifteen feet of pipe in order to avoid damaging it while working. He testified that the pipe was unharmed during their work on the hand holes. This testimony was confirmed by another Gulfgate contractor, Adam Romero, who was present during the work. Both men testified that Gulfgate recovered the pipe in an undamaged state.

Harold Broussard testified that he went to the lot for Gulfgate in February to do a site inspection as preparation for further work. There he encountered a contractor complaining about what a hassle the job was. When he returned to the site two days later, he encountered a large area of disturbed earth, as if a hole had been dug and recovered. This disturbed dirt was located in the area between the pre-cast slab and the street, between the hand holes, and atop the area where Gulfgate had previously discovered the pipe. That area had not been dug up two days before. That day, he also found a ten to twelve-foot section of pipe that was bent and mangled, as if it had been pulled up by an excavator, laying on the ground. Again, that had not been there two days prior.

After Mr. Thibodeaux's accident, Mr. Smith and Mr. Romero returned to the job site to investigate for Gulfgate and AT & T. When they examined the sinkhole, they found that it went back from the hand hole to roughly a foot under the concrete slab. There, they found a broken section of pipe. This was the same pipe they had previously uncovered. They began digging from the slab toward the road to attempt to repair the pipe and found that a ten to twelve-foot section of pipe was completely missing. This matched the length of pipe found by Mr. Broussard, which was still laying in the lot at the time of the accident. The pulled, bent section of pipe matched the sewer line perfectly in size, type, and markings. Kelly Vice testified for Gulfgate, confirming Mr. Broussard's testimony that the pipe section in evidence looked like it had been pulled up and broken by an excavator. Mr. Romero testified that leaks from broken pipes would cause a washout and lead to a sinkhole.

Mark Moore testified for J.M., issuing blanket denials that his crew damaged the sewer line. However, he noted that J.M. dug in the vicinity with an excavator and it had done so assuming there was no sewer line in the area, despite the obvious presence of the sewer station fence just feet away from the work area. He admitted that J.M. dug deeper than the three-foot depth the sewer pipe was located at, noting that water filled the holes they dug, making it impossible to see the bottom of the holes. Critically, J.M. exhibit five, attached to his deposition, marks the location of two bore holes dug by J.M., unquestionably placing them directly atop the damaged pipe.

Pictures show an area of disturbed earth atop the sewer line, as Mr. Broussard had described. Another picture, attached as Gamez one, shows that the fiber optic line installed by J.M. was situated a mere eight to twelve inches away from the sewer line, and located at a depth below it. Mr. Moore was clear that each of the bore holes J.M. was excavating in the direct area of the pipe were four feet square and at a depth of at least four feet due to the wet conditions.

It is clear that J.M. was digging in the vicinity of the sewer line, with an excavator, digging deeper than the broken pipe. It is near impossible that J.M. dug the two, four-foot square holes in the area marked in exhibit five at the depth indicated by Mr. Moore without hitting the pipe. This is clearly reiterated by the photo attached as Gamez one. J.M. offered no evidence supporting any other source of damage to the pipe. The record contains sufficient evidence to make it clear that J.M. damaged the sewer line, which precipitated the leak, that caused the sinkhole. We find that Mr. Moore's blanket denials do not create a genuine issue of material fact in the face of the other overwhelming evidence and that there remains no other reasonable hypothesis as to how the line was damaged. We can find no error in the trial court's finding that no genuine issue of material fact exists as to the cause of the damage to the pipe.

J.M. further claims a genuine issue of material fact exists in that it claims that it is possible that the dirt around the hand hole could have been improperly tamped down. J.M. claims this could have led to a hole being created, citing the deposition testimonies of Kelly Vice and Mr. Thibodeaux. Most crucially, neither of these men testified in the deposition excerpts attached to the motion for summary judgment that improper tamping of the dirt would cause a sinkhole, but merely "sinkage." Moreover, it is crystal clear that the void that caused Mr. Thibodeaux's injury was not mere sinking of the ground, but a collapse of a roughly three-foot sinkhole, as previously noted by this court. Further, this hypothesis completely ignores the ten foot, broken, and unearthed section of pipe in evidence. "[A]ssertions of ... implausible hypotheticals do not create genuine issues of material fact sufficient to defeat summary judgment." JPMorgan Chase Bank, N.A. v. Andrus , 08-1160, p.5 (La. App. 3 Cir. 6/3/09), 10 So.3d 1286, 1290. We find no error in the trial court's grant of Mr. Thibodeaux's motion for summary judgment. This assignment of error is without merit.

DAMAGES

J.M. next sets forth three assignments of error concerning damages awarded by the jury. J.M. claims the jury abused its discretion in granting excessive awards for future medical damages, for future loss of earning capacity, and for loss of consortium. We disagree as to future medical damages and loss of consortium, but agree as to future loss of earning capacity.

Our jurisprudence has consistently held that in the calculation of general damages, considerable discretion is left to the jury. Coco v. Winston Indus., Inc ., 341 So.2d 332 (La.1976). The discretion vested in the jury is great, even "vast," so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp ., 623 So.2d 1257, 1261 (La.1993), cert. denied , 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Upon appellate review, general damage awards will be disturbed only when there has been a clear abuse of that discretion. Coco , 341 So.2d 332.

The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70, 74 ; Youn , 623 So.2d at 1261. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the "much discretion" of the trier of fact. Youn , 623 So.2d at 1260. Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn , 623 So.2d at 1261. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Id. If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. Prior awards under similar circumstances serve only as a general guide. In such review, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. Id. ; Theriot v. Allstate Ins. Co. , 625 So.2d 1337, 1340 (La.1993).

Mack v. Wiley , 07-2344, pp.15-16 (La. App. 1 Cir. 5/2/08), 991 So.2d 479, 490, writ denied , 08-1181 (La. 9/19/08), 992 So.2d 932. Damages awarded by a jury are to be reviewed in the light most favorable to the prevailing party. O'Riley v. City of Shreveport , 30,107 (La.App. 2 Cir. 1/23/98), 706 So.2d 213, writ denied , 98-752 (La. 5/1/98), 718 So.2d 418.

Future Medical Awards

J.M. first contends the jury erred in awarding excess damages for future medical expenses. J.M. notes that the $ 500,000.00 future medical damages award exceeds the costs set forth in the life care plans, which ran from roughly $ 400,000.00 to $ 430,000.00. However, the $ 500,000.00 award given by the jury may account for expenses related to contested Supartz injections to Mr. Thibodeaux's knee, as well as future surgeries, including a knee replacement surgery and a hip nerve release, which were not in the life care plans. J.M. claims these expenses were not proven. We find that the medical testimony presented produced sufficient evidence to justify these awards.

As noted in Goza v. Parish of West Baton Rouge , 08-86, pp. 21-22 (La.App. 1 Cir. 5/5/09), 21 So.3d 320, 337, writ denied , 09-2146 (La. 12/11/09), 23 So.3d 919, cert denied , 560 U.S. 904, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010) :

An award of future medical expenses is justified if there is medical testimony that they are indicated and setting out their probable cost. Hanks v. Seale , 04-1485, p. 16 (La. 6/17/05), 904 So.2d 662, 672. Nevertheless, when the record establishes that future medical expenses will be necessary and inevitable, courts should not reject the award because the record does not provide the exact value, if the court can determine from the record, past medical expenses, and other evidence a minimum amount that reasonable minds could not disagree would be required. Levy v. Bayou Indus. Maintenance Services, Inc , 03-0037, p. 9 (La.App. 1st Cir. 9/26/03), 855 So.2d 968, 975, writs denied , 03-3161, 03-3200 (La.2/6/04), 865 So.2d 724 and 727. In such a case, the court should award all future medical expenses that the medical evidence establishes that the plaintiff, more probable than not, will be required to incur. Hymel v. HMO of Louisiana, Inc. , 06-0042, pp. 26-27 (La.App. 1st Cir. 11/15/06), 951 So.2d 187, 206, writ denied , 06-2938 (La. 2/16/07), 949 So.2d 425. Although future medical expenses must be established with some degree of certainty, they do not have to be established with absolute certainty, as an award for future medical expenses is by nature somewhat speculative. Grayson v. R.B. Ammon and Associates, Inc ., 99-2597, p. 35 (La.App. 1st Cir. 11/3/00), 778 So.2d 1, 23, writs denied, 00-3270, 00-3311 (La. 1/26/01), 782 So.2d 1026, 1027

Here, Dr. Stubbs testified that the damage to Mr. Thibodeaux's knee was chronic and permanent. He testified that it was more probable than not that Mr. Thibodeaux would need a knee replacement in the future due to his fall, though he was too young to undergo the procedure at this time. To hold Mr. Thibodeaux over until he reached an age where a knee replacement would be suitable, Dr. Stubbs testified that Supartz injections would be necessary. Dr. Stubbs stated that these injections would be useful in lubricating the knee to prevent further deterioration and to prolong the life of Mr. Thibodeaux's natural knee. Dr. Stubbs' life care plan for Mr. Thibodeaux stated that these injections would be needed at a rate of five injections every six months for life. Mr. Thibodeaux testified that he wanted the injections in order to extend the time before a knee replacement, in order to prevent requiring a second knee replacement surgery, even if he did not experience any pain reduction with the injections. The jury's award including the Supartz injections was supported by the record, and we can find no error in the jury awarding the costs of those injections.

We further find that the above medical testimony produced a sufficient basis for the jury's finding that Mr. Thibodeaux will need other treatment for his knee problems for the rest of his life, including an eventual total knee replacement. Likewise, there exists in the record a reasonable factual basis for the jury's finding that a hip nerve release surgery would be required. Dr. John Sledge testified that the fall caused Mr. Thibodeaux to suffer from meralgia paresthetica, or numbness due to damage to the femoral nerve. He testified that this diagnosis was confirmed by two tests, a nerve block and an EMG. Dr. Sledge stated that because injections and physical therapy had not worked for Mr. Thibodeaux, he was likely to wind up needing nerve release surgery on his hip to alleviate his pain. Mr. Thibodeaux testified that, although he was hesitant to undergo additional surgery after his two knee surgeries failed to reduce his pain, he would plan on having the surgery. There was a reasonable factual basis in the record for the jury awarding Mr. Thibodeaux the costs of the nerve release surgery.

Although Mr. Thibodeaux failed to present any direct evidence as to the specific cost of these surgeries in the life care plans in evidence, future medical expenses are a legitimate item of damages even where the result of such future treatment and its costs cannot be fixed with precision. Guillory v. Avondale Shipyards, Inc. , 448 So.2d 1281 (La.1984) ; Bly v. Prudential Prop. and Cas. Ins. , 589 So.2d 495 (La.App. 5 Cir. 1991). Moreover, the trial court can determine future medical expenses on the basis of the record, past medical expenses, and other evidence. Levy , 855 So.2d 968.

We find the awards beyond the life care plans for the future knee replacement to be reasonable in light of other jurisprudence. An award of $ 42,274.80 in future medical costs was awarded for a knee replacement in Trueman v. City of Alexandria , 01-1130 (La.App. 3 Cir. 5/15/02), 818 So.2d 1021, writ granted , 02-2166 (La. 11/15/02), 829 So.2d 410. This court also awarded $ 60,000.00 for each knee replacement surgery to the plaintiff in Pryor v. Iberia Par. Sch. Bd. , 10-23 (La.App. 3 Cir. 6/16/10), 42 So.3d 1015, reversed on other grounds , 10-1683 (La. 3/15/11), 60 So.3d 594.

Likewise, the life care plan submitted by Dr. Sledge set forth costs for lumbar nerve decompression at a cost of roughly $ 80,000.00, with half that cost being hospital costs and half being surgeon's costs. It is not unreasonable that the jury could use this as a basis to award a fraction of that amount for a hip nerve decompression.

The life care plans in the record show future medical expenses running from $ 400,000.00 to $ 430,000.00, without the required knee replacement and hip nerve release. The jury clearly considered the life care plans in the records, as well as the medical testimony setting forth the necessity for the additional future surgeries. The jury obviously raised the award from the life care plans to include what it felt were the approximate costs of future necessary surgeries. In light of the costs of the future care established in the life care plans and viewing the damages awarded by the jury in the light most favorable to Mr. Thibodeaux as the prevailing party, we can find no abuse of the jury's vast discretion in its award of future medical expenses in the amount of $ 500,000.00.

Loss of Future Earning Capacity

We do, however, agree with J.M. as to the jury's findings as to Mr. Thibodeaux's loss of future earning capacity. The record contains two competing experts regarding loss of future earning capacity. Dr. Stuart Wood testified for J.M. that Mr. Thibodeaux's loss of future earning capacity was in the range of $ 471,360.16. However, Dr. Wood was heavily scrutinized by counsel for Mr. Thibodeaux regarding his methodology, and Dr. Wood himself testified that his number did not take into account Mr. Thibodeaux's planned retirement age, fringe benefits, yearly union raises, and that his numbers relied heavily on an average of Mr. Thibodeaux's past earnings, which deeply discounted a promotion Mr. Thibodeaux earned one year prior to the accident.

Dr. Wood's testimony was countered by that of Dr. George Rice, who used a much higher yearly lost wage based on Mr. Thibodeaux's recent promotion and the earnings of Mr. Thibodeaux's junior partner at AT & T, Chris Pacetti. Mr. Pacetti and Mr. Thibodeaux both testified that the two men had very similar attitudes toward work, overtime, travel, and making as much money as possible. They agreed that their hours would be a near exact match, though Mr. Thibodeaux was senior to Mr. Pacetti and, therefore, had greater opportunities for overtime and to earn more money. Dr. Rice used Mr. Thibodeaux's stated retirement goal in his calculations, and factored in the many fringe benefits Mr. Thibodeaux received from AT & T. Dr. Rice came to a calculation that Mr. Thibodeaux's loss of future earning capacity was $ 2,152,134.00.

We find that the jury simply found Dr. Rice's methodology and testimony more compelling, and that this amount was amply supported by the record. However, the jury awarded Mr. Thibodeaux $ 2,275,000.00, or $ 122,866.00 greater than any evidence in the record supports. We find $ 2,152,134.00 is the highest amount reasonably within the discretion of the fact finder under the circumstances of this case. As there is simply nothing in the record to support the greater award, the jury had no basis for it, and, thus, abused its discretion. We hereby reduce the award of loss of future earning capacity to $ 2,152,134.00.

Loss of Consortium

J.M.'s final assignment of error concerning damages deals with the jury's award for loss of consortium. J.M. claims that the award of $ 150,000.00 is excessive. Loss of consortium includes pecuniary such elements as loss of services and nonpecuniary such components as loss of love, companionship, affection, society, sexual relations, comfort, and solace. See Emery v. Owens-Corp. 00-2144, (La.App. 1 Cir. 11/9/01), 813 So.2d 441, writ denied , 02-635 (La. 5/10/02), 815 So.2d 842.

The jury heard emotional testimony from Amy Thibodeaux, who stated that her husband of twenty-four years is a changed man since the accident. She stated that his daily struggles with his pain prevent him from doing simple things. The record reveals that Mr. Thibodeaux's activities have become limited due to his pain and have stopped the couple from being able to do the outdoor activities that they loved doing together. The family can no longer take their yearly camping vacations because Mr. Thibodeaux can not do the work associated with their travel trailer. The family used to hunt, fish, and do several outdoor activities together. They can no longer do those things since the accident. Mr. Thibodeaux is no longer the "happy-go-lucky" man his wife once knew. His youngest daughter, Gabby, testified that he is now short-tempered and has great anxiety over bills. Mrs. Thibodeaux testified that the family's financial burden has fallen on her now that Mr. Thibodeaux can no longer work. She testified that she has to work more and longer hours to help make ends meet, and that the accident has changed her life, as well as his. She asserted that the entire family is struggling as a result of his injury.

The fact finder has much discretion in the assessment of general damages, including damages for loss of consortium. La.Civ.Code art. 2324.1. A loss of consortium award is a fact-specific determination to be decided on a case-by-case basis and is disturbed only if there is a clear abuse of discretion. Lemoine v. Mike Munna, L.L.C ., 13-2187 (La.App. 1 Cir. 6/6/14), 148 So.3d 205. After a review of the record, we find no abuse of the jury's discretion in its award of general and loss-of-consortium damages.

J.M. further challenges a separate award of $ 90,000.00 for loss of household services, claiming this is duplicative of the loss of consortium award. However, Dr. Rice provided testimony that the maintenance at Mrs. Thibodeaux's beauty salon would cost them between $ 92,920.00 and $ 111,904.00, as Mr. Thibodeaux could no longer provide that labor free of charge due to his injury and outside help would need to be hired. We do not find the $ 90,000.00 award duplicative. Rather, we find it to be a separate claim with factual support in the record, and we, therefore, cannot find it to be an abuse of the jury's vast discretion.

MOTION IN LIMINE

J.M. next claims that the trial court erred in granting Mr. Thibodeaux's motion in limine precluding the testimony of Dr. Greg Gidman on the basis that it would be cumulative. The trial court is vested with vast discretion in connection with the admissibility of evidence. It will not be reversed absent an abuse of that discretion. Maddox v. Omni Drilling Corp. , 96-1673 (La.App. 3 Cir. 8/6/97), 698 So.2d 1022, writs denied , 97-2766, 97-2767 (La. 1/30/98), 709 So.2d 706; Tingle v. Am. Home Assurance. Co. , 10-71, 10-72 (La.App. 3 Cir. 6/2/10), 40 So.3d 1169, writs denied , 10-1580, 10-1578, 10-1564, 10-1562 (La. 10/29/10), 48 So.3d 1095, 10-1562, 10-1563 (La. 10/29/10), 48 So.3d 1096. Dr. Gidman performed an independent medical examination on Mr. Thibodeaux, as did Dr. Stanley Foster, who's testimony was allowed. Counsel for J.M. indicated at the hearing below that Dr. Gidman's testimony would be the same as Dr. Foster's regarding Mr. Thibodeaux's knee injury. We cannot find that the trial court abused its vast discretion in finding that Dr. Gidman's testimony should be excluded as cumulative.

JNOV

A motion for JNOV may be granted on the issue of liability, damages, or both. La.Code Civ.P. art. 1811. If the verdict is supported by competent evidence and is not wholly unreasonable, the trial judge may not set it aside. Finnie v. Vallee , 620 So.2d 897 (La.App. 4 Cir.), writ denied , 625 So.2d 1040 (La.1993). Based on our above findings concerning liability and damages, the jury's verdict is supported by the record and not unreasonable. Therefore, we pretermit any further discussions regarding J.M.'s allegations regarding the trial court's denial of its motions for new trial and JNOV, as they are rendered moot by those above findings.

For the above reasons, the decisions of the trial court and jury below are hereby affirmed as amended. We amend the jury's award of loss of future earning capacity to reduce the award from $ 2,275,000.00 to $ 2,152,134.00. The decisions and awards are affirmed in all other respects. Costs of this appeal are hereby assessed against J.M. Drilling.

AFFIRMED AS AMENDED.

      In our previous grant of summary judgment to Gulfgate, this court noted it was a break in "the main line, which caused the leak, which caused the washout, which formed the hole into which Thibodeaux fell and was injured." Thibodeaux , 234 So.3d at 106.

      We note for thoroughness that the jury clearly believed Dr. Wood over Dr. Rice on the amount of past lost wages. There, the jury agreed with Dr. Wood that the lost wage damages were $ 205,935.00, rather than the $ 329,468.00 claimed by Dr. Rice. We note that the difference in the past lost wages award is almost exactly the amount awarded over what was proven for loss of future earning capacity. While it seems as if the jury may have been attempting some balancing between the two, the award for past wages was set forth with specificity and is final, as it has not been challenged in this court. Though we may feel we may understand what the jury was attempting to do with the awards, we cannot sustain a loss of future earning capacity award which has no factual support in the record.


source: Caselaw Access Project

author: Judge Edwin A. Lombard

license: Public Domain

text:
    Brittney RIXNER v. PLANNED PARENTHOOD GULF COAST, INC., ABC Insurance Company, Constance Pfingstag, Mindy Jordan, Jackelin Lopez
    NO. 2018-CA-0897
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 24, 2019
    Lizette Radovic, MILLER-RADOVIC, LLC, 650 Poydras Street, Suite 1400, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Bryant S. York, STONE PIGMAN WALTHER WITTMANN L.L.C., 909 Poydras Street, Suite 3150, New Orleans, LA 70112-4042, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Tiffany G. Chase )
   Judge Edwin A. Lombard

The Appellant, Brittney Rixner, seeks review of the July 16, 2018 judgment of the district court denying her Motion to Set Aside the Order of Dismissal in favor of the Appellees, Planned Parenthood Gulf Coast, Inc. and Constance Pfingstag. Additionally, Ms. Rixner seeks review of a ruling made by the district court at the June 24, 2018 hearing on the motion at issue, finding that service of the Appellees' Ex Parte Motion to Confirm Abandonment and to Dismiss Action was not required.

After review of the record in light of the applicable law and arguments of the parties, we reverse the July 16, 2018 judgment of the district court denying Ms. Rixner's motion, finding that judgment to be legally incorrect. Moreover, we affirm the district court's June 24, 2018 ruling as to the issue of service. Lastly, we decline to award Ms. Rixner's request for attorney's fees, court costs and other costs on appeal and related to her Motion to Set Aside the Order of Dismissal in the district court.

Facts and Procedural History

This appeal involves a dispute over a medical malpractice suit being deemed abandoned. In January 2015, Ms. Rixner filed a suit against Planned Parenthood Gulf Coast, Inc. and its employees, Constance Pfingstag, Mindy Jordan and Jackelin Lopez, raising claims for medical malpractice, breach of contract and personal injuries arising from the placement of a Mirena IUD and treatment she received related to that procedure. Ms. Rixner avers that the defendants are solidarily liable.

Ms. Rixner requested service on all the defendants on April 1, 2015; however, service was only made on Planned Parenthood and Ms. Pfingstag, who filed answers and affirmative defenses, respectively. During the proceedings, Ms. Rixner avers, Planned Parenthood opened a new location in New Orleans. Counsel for Ms. Rixner later mailed correspondence to the Clerk of Court, dated December 20, 2016, requesting the reissuance of service of the petition on Mses. Jordan and Lopez at the new location. That letter became a part of the record. Nevertheless, the Orleans Parish Sheriff was unable to serve Mses. Jordan and Lopez.

On May 1, 2018, Planned Parenthood and Ms. Pfingstag (hereinafter "the Appellees") filed an Ex Parte Motion to Confirm Abandonment and to Dismiss Action Pursuant to Louisiana Civil Code Article 561 ("motion to confirm abandonment"), asserting that no steps had been taken in the prosecution or defense of the action for three years, specifically since April 29, 2015, when Planned Parenthood filed its Answer and Affirmative Defense. The district court granted the motion to confirm abandonment on the same day. The order was subsequently served on Ms. Rixner on May 4, 2018.

Ms. Rixner later filed an Ex Parte Motion to Set Aside the Order of Dismissal ("motion to set aside dismissal"). Following a hearing on June 29, 2018, the district court denied the motion to set aside dismissal, thereby upholding its May 1, 2018 order of dismissal. This timely appeal followed.

Assignments of Error

The crux of Ms. Rixner's appeal is that the district court erred in granting the Appellees' motion to confirm abandonment and erred in denying her motion to set aside dismissal. We note, however, that Ms. Rixner's motion for devolutive appeal omits mention of the May 1, 2018 order of the district court granting motion to confirm abandonment. Therefore, because her assignment of error related to the May 1, 2018 order of dismissal is not properly before this Court, we pretermit discussion of that assignment of error.

Finding that the district court did err in denying Ms. Rixner's motion to set aside dismissal, we shall explain below why the denial of Ms. Rixner's motion was legally incorrect under Bibeau v. Forest Manor Nursing Home , 05-0181 (La.App. 4 Cir. 8/18/05), 917 So.2d 1123, and Louisiana jurisprudence.

Additionally, Ms. Rixner assigns as error the district court's ruling that the Appellees were not required to send her a service copy of their ex parte motion to confirm abandonment; and seeks an award of attorney's fees, court costs and other costs on appeal and for the legal work associated with her motion to set aside dismissal. We find these assignments of error to be without merit for the reasons discussed below.

Abandonment

Ms. Rixner's primary argument on appeal is that the district court erred in denying her motion to set aside dismissal because her request for reissuance of service on two unserved defendants on December 20, 2016, qualifies as taking a "step" in the prosecution of the instant action within three years under La. Code Civ. Pro. art. 561 and precludes this matter being deemed abandoned as to the Appellees, who had been served. We agree and find that a step in the prosecution of the action that was taken against the unserved defendants serves as a step against all the defendants, thus precluding abandonment as to the Appellees.

The issue of whether a particular act, if proven, precludes abandonment is a question of law that is reviewed by determining whether the district court's interpretative decision is legally correct. Lyons v. Dohman , 07-0053, p. 4 (La.App. 3 Cir. 5/30/07), 958 So.2d 771, 774 [citation omitted]. Moreover, appellate courts review questions of law de novo , determining whether the trial court's ruling was legally correct. In re Edward Wisner Donation, 14-0027, 14-0028, p. 8 (La.App. 4 Cir. 9/18/14), 150 So.3d 391, 396 [citations omitted]. Therefore, we shall apply the de novo standard in reviewing the district court's denial of the motion to set aside dismissal.

Article 561 of the La. Code Civ. Proc. is controlling in this matter, and provides in pertinent part:

A. (1) An action , except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three year s, unless it is a succession proceeding ...
* * *
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Article 561 sets forth three requirements to avoid abandonment: (1) a party must take some step in the prosecution or defense of the action; (2) the step must be taken in the proceeding, and, with the exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken within three years of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step. Louisiana DOTD v. Oilfield Heavy Haulers, L.L.C. , 11-0912, pp. 4-5 (La. 12/6/11), 79 So.3d 978, 981. A "step" encompasses either taking a formal action before the court that is intended to hasten the matter to judgment, or conducting formal discovery, including the taking of a deposition, with or without formal notice. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784 ; La. Code Civ. Proc. art. 561 (B). Moreover, the step must: be taken in the court where the suit is pending; appear in the record, except for discovery; and must occur within the legislatively prescribed time period. Brown v. Kidney & Hypertension Assocs., L.L.P. , 08-0919, p. 9 (La.App. 1 Cir. 1/12/09), 5 So.3d 258, 266. When any party to a lawsuit takes formal action in the trial court, it is effective as to all parties. Delta Dev. Co. v. Jurgens , 456 So.2d 145, 146 (La. 1984) [citation omitted]. "Any action or step taken in a case to move the case toward judgment should be considered." Brown, 08-0919, p. 8, 5 So.3d at 265.

Abandonment balances two competing policy considerations: the desire to see every litigant have his day in court and not to lose the same by some technical carelessness or unavoidable delay; and the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription. D.W. Thomas & Son, Inc. v. Gregory , 50,878, p. 3 (La.App. 2 Cir. 11/23/16), 210 So.3d 825, 827. Abandonment is not a punitive concept; consequently, La. Code Civ. Proc. art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit and abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which have clearly been abandoned. Clark, 00-3010, pp. 8-9, 785 So.2d at 785-86 ; Benjamin-Jenkins v. Lawson, 00-0958, p. 3 (La.App. 4 Cir. 3/7/01), 781 So.2d 893, 895.

In denying Ms. Rixner's motion, the district court set forth its reasons on the record, explaining that it examined whether the matter was abandoned specifically as to the served defendants, the Appellees, and that under the facts presented, Ms. Rixner's claims against the Appellee's were abandoned by operation of law. The district court reasoned:

... These are always difficult cases. The statute tends to - just like prescriptive statute, you are supposed to keep cases if you can. The difficulty I have now is that even I am looking - there is a 4th Circuit case Bissett versus Allstate Insurance Company . Although it is not right on point it is instructed [sic] because it talks about if no steps are timely taken [in] the prosecution of the suit as to an unserved defendant, then abandonment is not interrupted as to [that] defendant even if steps are taken by or against a served defendant.
We have the reverse of that. We have no action taken against served defendants[,] but service requested within the three years on another defendant this case tells me that [the defendants'] counsel is correct that it is defendant specific. If you do not serve one defendant within three years and do nothing and you take action against the served defendants, that does not interrupt the unserved defendants. This [sic] reverse has to apply.
You did not take action against the served defendants but you served a defendant who is unrelated to these two defendants. I have to follow that rule as defendant specific and grant the motion at this time - deny your motion, not grant your motion. Deny your motion to set aside the dismissal.

The district court's explanation of and reliance upon Bissett - a First Circuit decision misquoted as a Fourth Circuit decision- is inaccurate and necessitates explanation. The First Circuit's decision in Bissett v. Allstate Insurance Company , 560 So.2d 884, 886 (La.App. 1st Cir. 1990), upheld the abandonment of a case as to an unserved defendant pursuant to La. Code Civ. Proc. art. 561. Adopting the dissent of Judge Melvin Shortess, the Louisiana Supreme Court reversed the First Circuit in Bissett v. Allstate Insurance Company , 567 So.2d 598 (La. 1990).

Judge Shortess explained that two "steps" had occurred that prevented abandonment: a step in the defense of the action occurred when one of the defendants deposed a witness and that deposition was filed into the record; and a step in the prosecution of the action occurred where the unserved defendant herself was served with a motion for deposition and thereafter deposed by the plaintiff. The unserved defendant's deposition was also filed in the record. Judge Shortess concluded, as did the Supreme Court, that those steps were sufficient to interrupt the abandonment period as to the unserved defendant, who was later served. Id. ; see Bissett , 560 So.2d at 887. Based upon the facts of the instant matter, we find Bissett to be inapplicable.

The issue raised in the matter sub judice is not a res nova issue for this Court. In Bibeau v. Forest Manor Nursing Home , 05-0181, p. 3 (La.App. 4 Cir. 8/18/05), 917 So.2d 1123, 1125, we addressed whether a request for reissuance of service of a petition on an unserved defendant under La. Code Civ. Proc. art. 561 can also serve as a step in the prosecution of an action against a served defendant in the same proceeding.

In Bibeau , the plaintiff filed suit against three defendants, who were not solidarily liable. Of the three defendants, only one defendant, Forest Manor Nursing Home ("Forest Manor"), was served and filed an answer. The plaintiff was able to serve a second defendant, M. McGregor Jones Health Care Center ("McGregor"), but later discovered that service had been improperly made on McGregor's designated agent for service of process. Id. , 05-0181, pp. 1-2, 917 So.2d at 1124.

After the plaintiff requested reissuance of service on McGregor, Forest Manor moved to have the case dismissed as abandoned. The district court granted the motion for abandonment because the plaintiff had not taken any steps in the prosecution of the action against Forest Manor in three years. The district court subsequently denied the plaintiff's motion to set aside Forest Manor's order of abandonment. On appeal, this Court relied upon James v. Formosa Plastics Corp. of La. , 01-2056 (La. 4/3/02), 813 So.2d 335, wherein the Louisiana Supreme Court held that "when any party takes formal action in the trial court, it interrupts the abandonment period as to all parties." Id. , 01-2056, p. 5, 813 So.2d at 339. Consequently, we vacated the judgment of the district court and remanded the matter for further proceedings, holding that an effort to serve a defendant with a petition constituted a step in the prosecution of the case as a whole against all defendants. Bibeau , 05-0181, p. 5, 917 So.2d at 1126.

We find this holding to be controlling in the instant matter. Ms. Rixner's request for reissuance of service on December 20, 2016, which is in the record, on two unserved defendants was a timely step in the prosecution against all defendants, especially as they are alleged to be solidarily liable. Thus, the district court should have set aside its determination that this matter was abandoned on May 1, 2018, which is less than three years from December 20, 2016. See La. Code Civ. Proc. art. 561 ; See Brown , supra at 266.

Moreover, the clear and unambiguous wording of art. 561 is that "an action" is abandoned "when the parties fail to take any step in its prosecution or defense in the trial court for a period of three year s." The article does not require that the "step" taken by the plaintiff on the record be specific as to each defendant to preclude abandonment. Citation and service thereof are essential in all civil actions, except summary and executory proceedings. La. Code Civ. Proc. art. 1201. Furthermore, a plaintiff's "request for service upon one defendant" is "an unequivocal expression of plaintiff's intent to continue the litigation." Shulver v. Slocum , 566 So.2d 1089, 1092 (La.App. 2 Cir. 1990) [finding that a plaintiff's letter to the clerk of court requesting service upon a defendant constituted a step in the prosecution of the action that was sufficient to avoid abandonment]. See also Sullivan v. Cabral , 32,454, p. 3 (La.App. 2 Cir. 10/27/99), 745 So.2d 791, 792.

Similarly, we find that Ms. Rixner's request for reissuance of service evidenced her intent to advance the litigation in the instant matter as to all defendants. Louisiana jurisprudence that abandonment is to be liberally construed in favor of preserving lawsuits against abandonment when considered with the requirement set forth in La. Code Civ. Proc. art. 561 that a step must be made in the prosecution of the action, militates toward finding that Ms. Rixner's claims against the Appellees are not abandoned.

Lastly, while we recognize that the Appellees aver that Guillory v. Pelican Real Estate, Inc. , 14-1539, 14-1593, 14-1624, (La. 3/17/15), 165 So.3d 875, is applicable to this matter, we find their reliance upon Guillory to be inapposite. Guillory is factually distinguishable from the instant matter as it involves a discovery issue under La. Code Civ. Proc. art. 561.

In Guillory , plaintiffs alleging their home had redhibitory defects sued numerous defendants, one of whom filed third party demands against a broker, real estate agents, and the broker's professional liability insurer. The district court granted the liability insurer's ex parte motion to dismiss on ground that the plaintiffs' abandoned the lawsuit. However, the Third Circuit, in a split decision, reversed the district court, determining that the matter was not abandoned. Id. , 14-1539, pp. 2-3, 165 So.3d 875, 876-77.

Reversing the Third Circuit, the Louisiana Supreme Court held that discovery the plaintiffs had only served on one defendant did not constitute a step in the prosecution of their action as to another defendant because La. Code Civ. Proc. art. 561(B) specifies that in order for discovery to count as a "step in the prosecution of a suit" it must be served on all parties. Thus, the Supreme Court held that the case was clearly abandoned as to the liability insurer who was not served under art. 561, despite counsel for the defendant insurer participating in a Rule 10.1 conference. Id., 14-1539, pp. 4-5, 165 So.3d at 877-878.

Nonetheless, in the matter sub judice , service of discovery is not an issue and Ms. Rixner's "step in the prosecution" was her request for reissuance of service that appears in the record, which is a recognized step in advancing an action forward. Thus, pursuant to our de novo review and finding that Bibeau is controlling, we hold that the district court's denial of Ms. Rixner's motion to set aside dismissal was legally incorrect and reverse the judgment of the district court denying her motion.

Service of the Motion to Confirm Abandonment

Ms. Rixner's argument that the district court erred in holding that she should have been served with a copy of the ex parte motion to confirm abandonment lacks merit. Article 561 (B) of the La. Code of Civ. Procedure provides in pertinent part:

(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.

La. Code Civ. Proc. art. 561 does not require service of an ex parte motion for abandonment upon the adverse party. The only service that is required occurs after the motion for abandonment is ruled upon and the opposing party is served with the resulting order of dismissal. Additionally, when an order applied for by written motion is one to which mover is clearly entitled without supporting proof, such as in an abandonment matter, a trial court may grant the order ex parte and without hearing the adverse party. See La. Code Civ. Proc. art. 963.

The First Circuit holding in Wilkerson v. Buras , 13-1328 (La.App. 1 Cir. 8/12/14), 152 So.3d 969, supports this interpretation. The Wilkerson Court reasoned that because abandonment occurs automatically by operation of law, the ex parte motion for abandonment is not required to be served upon opposing counsel, rather only the order of dismissal is to be served upon the adverse party. The First Circuit explained:

Under Article 561, there is no requirement that an ex parte motion for abandonment be served on opposing counsel before the trial court can validly enter a formal order of dismissal. The formal order of dismissal merely recognizes that which has already occurred through operation of law. Article 561(A)(3) provides that either party may file an ex parte motion with the court, including an affidavit stating that no step has been taken in the prosecution or defense of the action for a period of three years and asking the court to declare the matter abandoned. Upon the filing of that motion, the court shall enter a formal order of dismissal as of the date of its abandonment.

Wilkerson , 13-1328, p. 8, 152 So.3d at 976.

We agree with the district court's interpretation of La. Code Civ. Proc. art. 561 that service of the motion to confirm abandonment was not required. This assignment of error is without merit.

Attorney's Fees, Court Costs and Other Costs

Lastly, in her remaining assignment of error, Ms. Rixner asserts that she is due attorney's fees, court costs and other costs on appeal and seeks the same award of fees and costs relating to the motion to set aside dismissal in the district court because of Planned Parenthood's alleged bad faith acts, such as pretending that they did not know unserved defendants Mses. Jordan and Lopez. Based upon our review of the record, we find that this assignment of error lacks merit. Therefore, finding no bad faith upon the part of the Appellees, we decline to award Ms. Rixner attorney's fees, court costs, and other costs relating to this appeal and the motion to set aside dismissal, under La. Code Civ. Proc. art. 2164.

DECREE

For the foregoing reasons, the July 16, 2018 judgment of the district court denying the Motion to Set Aside the Order of Dismissal of Brittney Rixner is reversed and this matter is remanded for further proceedings. The June 29, 2018 rulings of the district court on the issues of service and Ms. Rixner's request for attorney's fees, court costs and other costs, respectively, are affirmed.

REVERSED AND REMANDED IN PART; AFFIRMED IN PART

      "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. Civ. Code art. 9.

      See Benjamin-Jenkins v. Lawson, supra at 895; Clark, supra at 785.


author: KEATY, Judge.

text:
    STATE of Louisiana v. Robert STEWART a/k/a Robert Carter a/k/a Robert Stewart, III a/k/a Black Stewart
    18-757
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Keith A. Stutes, District Attorney, Robert L. Odinet, Assistant District Attorney, Post Office Box 3306, Lafayette, Louisiana 70502-3306, (337) 232-5170, Counsel for Appellee: State of Louisiana
    Edward K. Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, Louisiana 70602-1641, (337) 491-0570, Counsel for Defendant/Appellant: Robert Stewart
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

On March 1, 2016, Defendant, Robert Stewart, was charged by bill of information with: Count 1, illegal possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1 ; Count 2, illegal possession of a stolen firearm, in violation of La.R.S. 14:69.1 ; Count 3, possession of a dangerous weapon in the presence of a controlled dangerous substance (CDS), in violation of La.R.S. 14:95 ; and Count 4, possession of CDS I (marijuana), in violation of La.R.S. 40:966.

On April 16, 2018, the trial court denied Defendant's request to retain private counsel and overruled Defendant's objection that he was a sovereign citizen over whom the State of Louisiana had no jurisdiction. Prior to voir dire, the State notified the trial court that it would be proceeding to trial with Counts 1 and 2, and defense counsel and the State stipulated to the validity of Defendant's prior felony conviction for purposes of Count 1. After the jury was impaneled, court adjourned for the day. On April 17, 2018, Defendant failed to appear at court, and trial proceeded in his absence on Counts 1 and 2. See La.Code Crim.P. art. 832. After less than an hour of deliberation, the jury returned unanimous verdicts of guilty as charged on the possession of a firearm by a convicted felon charge and not guilty on the illegal possession of a stolen firearm charge. After the verdict was read, the trial court ordered the immediate arrest of Defendant and directed that he be held without bond until sentencing, which would take place after completion of a Presentence Investigation Report (PSI). Several months later, after reviewing the PSI, the trial court sentenced Defendant to twelve years at hard labor, with credit for time served, and without benefit of probation, parole, or suspension of sentence, plus a mandatory $ 1,000 fine. The trial court also recommended that Defendant enter a drug treatment program. Following sentencing, the State dismissed Counts 3 and 4 and noted its intent to charge Defendant as a habitual offender, which it did by bill of information dated July 13, 2018. On October 2, 2018, Defendant pled guilty to being a second felony offender, and the State recommended that Defendant be sentenced to twelve years at hard labor, without the benefits of probation, parole, or suspension of sentence.

Defendant now appeals his conviction, asserting there was insufficient evidence to support his conviction for possession of a firearm by a convicted felon. For the following reasons, we affirm Defendant's conviction and sentence.

FACTS

On September 12, 2015, officers with the Lafayette Police Department approached Defendant in front of a residence at 113 Sonny Street in Lafayette, Louisiana, to execute multiple arrest warrants. Upon his arrest, Defendant was found to be in possession of a handgun which was believed to be stolen.

At trial, Sergeant Jace Quebedeaux, a twenty-one-year veteran of the Lafayette Police Department, testified that he received information that Defendant had outstanding arrest warrants and was standing in front of a residence on the 100 block of Sonny Street. Thereafter, Sergeant Quebedeaux confirmed that Defendant had outstanding arrest warrants from city court and district court. He testified that multiple officers were directed to the residence in question to detain Defendant and that a Mr. Tevin Lewis was arrested at the same time on an unrelated matter. Sergeant Quebedeaux testified that, although multiple officers were present at the scene, Defendant was arrested by Officers Bart Ryder and Nathaniel Batiste.

Corporal Jack Martin of the Lafayette Police Department testified that he was present at the scene to collect evidence as a member of the Metro Crime Scene Unit. At trial, he identified an evidence box containing a Springfield .45-caliber pistol and ammunition that Detective Scott Broussard gave to him after receiving it from Corporal Ryder who collected it from Defendant at the scene.

Trooper Batiste of the Louisiana State Police, formerly a member of the Lafayette Police Department, testified that he was riding with Officer Ryder when they went to Sonny Street looking for Defendant. Trooper Batiste stated he and Officer Ryder observed Defendant standing in a driveway with three or four other people. They informed Defendant he was under arrest for outstanding warrants, and "Officer Ryder searched him and located a gun in his waistband." When asked about the gun, Trooper Batiste noted he never had possession of the gun but stated "[i]t was a semi-automatic pistol. I think it was, like, silver and black in color, maybe." Acknowledging that he had never met Defendant prior to his arrest, Trooper Batiste was unable to identify at trial a picture taken of Defendant on the day he was arrested.

Detective Dwayne Angelle of the Lafayette Parish Sheriff's Office testified that he was a twenty-five-year law enforcement veteran who had been a member of the Metro Crime Scene Unit for nearly twelve years. Detective Angelle was accepted as an expert in fingerprint identification. Detective Angelle testified he confirmed that Defendant's fingerprints obtained on September 12, 2015, matched the fingerprints of the Robert Stewart who was previously convicted of possession with the intent to distribute marijuana in East Baton Rouge Parish. Detective Angelle testified that the photograph attached to the fingerprint card from the Baton Rouge conviction appeared to be the same person as in the photograph attached to the September 12, 2015 fingerprint card; however, he acknowledged he had never met Defendant in person.

Detective Ryder of the Metro Narcotics Division testified that on September 12, 2015, he arrested Defendant on Sonny Street. Detective Ryder identified Defendant from the same photograph Trooper Batiste was unable to identify. Detective Ryder testified that he and Trooper Batiste approached 113 Sonny Street from the north and saw Defendant, whom he recognized from a "photo id" which had been given to them. Detective Ryder stated that there were "[m]ore than two or three" people outside the residence. Detective Ryder testified that as soon as they exited the vehicle, he noticed a gun "sticking out of [Defendant's] pocket," so he immediately handcuffed Defendant to prevent him from drawing the weapon. Detective Ryder identified State's Exhibit 2 as the gun he took from Defendant when he arrested him. Detective Ryder testified that he rendered the gun safe by removing the magazine and clearing the chamber, then placed the gun in his vehicle until he could turn it over to an agent from the Crime Scene unit.

DISCUSSION

In his sole assignment of error, Defendant contends the evidence presented at trial was insufficient to support his conviction for possession of a firearm by a convicted felon. The analysis for such a claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King , 436 So.2d 59 (La. 1983) ; State v. Duncan , 420 So.2d 1105 (La. 1982) ; State v. Moody , 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La. 1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

At the time of the offense, La.R.S. 14:95.1(A) (footnote omitted) provided:

It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

As this court previously noted in State v. Richardson , 16-107, p. 7 (La.App. 3 Cir. 12/28/16), 210 So.3d 340, 348, a conviction for possession of a firearm by a convicted felon requires "the State must have proven that 1) the defendant possessed a firearm; 2) a previous conviction for an enumerated felony; 3) the ten-year cleansing period has not passed; and 4) the general intent to commit the crime."

Prior to trial, the parties stipulated that Defendant had a prior conviction for possession with the intent to distribute marijuana, a felony violation of the Uniform Controlled Dangerous Substances Law. Officer Brandy Bonner of the Louisiana Department of Public Safety and Corrections, Probation and Parole Division, testified that she supervised Defendant on that conviction until November 6, 2012. Accordingly, the ten-year cleansing period had not yet run when Defendant committed the instant offense.

As noted by the second circuit in State v. Drayton , 46,191, p. 8 (La.App. 2 Cir. 4/13/11), 63 So.3d 319, 324, writ denied , 11-2343 (La. 6/1/12), 90 So.3d 430, "The general intent to commit the offense may be proved through the actual or constructive possession of the firearm." If the State can prove actual possession, it has satisfied the intent element of the offense. Defendant's argument, however, appears to be that he does not believe there was sufficient evidence to determine beyond a reasonable doubt that he was the person who possessed the firearm recovered by Detective Ryder. His argument is summarized as follows: "Not only were officers unsure of where the gun was located, they were unsure as to the color of the gun. The serial numbers of the gun allegedly seized were different from the one stolen, and Trooper Batiste could not recognize a picture of [Defendant] at trial."

Although Defendant contends the testimony of the officers differed "as to where the gun was located," we conclude that the evidence is sufficient to identify Defendant as the individual from whom the gun was recovered. Detective Ryder testified he apprehended Defendant and removed the gun from his front pocket almost immediately upon exiting his vehicle. Trooper Batiste, who was not the individual who actually arrested Defendant and who never possessed the weapon, testified that Detective Ryder removed the gun from Defendant's waistband. Given the proximity of an individual's front pocket and their waistband, we believe that this slight difference in memory between two law enforcement officers more than two years later is certainly understandable.

Defendant's argument relies heavily on the fact that Trooper Batiste did not accurately remember the color of the gun seized and could not recognize a picture of Defendant during trial. As this court has noted, however, "[i]n order to support a conviction, the defendant need only be positively identified by one witness." Richardson , 210 So.3d at 346. Detective Ryder, the officer who actually seized Defendant and possessed the weapon in question, identified Defendant's photograph and identified the firearm as the weapon he recovered from Defendant's front pocket. No evidence was presented to contradict Detective Ryder's testimony, aside from the slight discrepancy between his testimony and that of Trooper Batiste, as noted above. Although Defendant points out that there was a discrepancy between the serial number on the gun recovered and the serial number listed on the stolen weapon report, we note that such information is only relevant to whether the weapon was stolen, not weather Defendant had possession of it. In light of Richardson , Drayton , and Detective Ryder's testimony, we are convinced that "any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt" when viewing the evidence in the light most favorable to the prosecution under Jackson , 443 U.S. at 319, 99 S.Ct. 2781.

DECREE

Defendant's conviction and sentence are affirmed.

AFFIRMED.

      As noted by the trial court, Defendant received the same sentence under the habitual offender laws as that which he had received before being charged as a habitual offender.

      Defendant references the testimony of Mr. Chad Cormier in his brief to this court. Mr. Cormier's testimony was relevant only to identification of the firearm as having been stolen. As Defendant was found not guilty of possessing a stolen firearm, Mr. Cormier's testimony is not included in this factual summary.

      Bart Ryder is referred to at different times as both Corporal Ryder and Officer Ryder; however, his rank at the time of trial was Detective. We have kept the title used in reference to Detective Ryder by each witness.