text:
    Tommy Taylor THOMAS, CPA v. The STATE BOARD OF CERTIFIED PUBLIC ACCOUNTANTS OF LOUISIANA, Michael A. Henderson, CPA, Michael A. Tham, CPA, Carol T. Barnes, CPA, Susan C. Cochran, CPA, Mark P. Harris, Michael B. Bruno, Letti Lowe-Ardoin, CPA, and Craig Laborde, Special Investigator.
    No. 2008-CA-1491.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 2010.

      Brian D. Smith, J. Michael Nash, Un-garino & Eckert L.L.C., Shreveport, LA, for PlaintiffiAppellant.
    Eric J. Derbes, Albert J. Derbes III, Frederick L. Bunol, The Derbes Law Firm, L.L.C., Metairie, LA, for Appellee (State Board of Certified Public Accountants of Louisiana).
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

| iTommy Taylor Thomas, a certified public accountant, appeals a district court judgment dismissing his petition for judicial review of an order of the State Board of Certified Public Accountants of Louisiana (“the Board”) that revoked his license and imposed an administrative fine of $16,000.00. LSA-R.S. 49:964(G) of the Administrative Procedure Act enumerates the exclusive grounds upon which an administrative agency’s decision may be reversed or modified on appeal. Because we find none of those grounds exists in this case, we affirm the judgment.

|2In the 1980s, Carl and Irmgard Se-well , an elderly couple, retained the professional services of Mr. Thomas, a partner in the certified public accounting firm of Thomas, Hunter & Company, LLP (“the firm”). In 1996, the Sewells executed wills that named Mr. Thomas the executor of their respective estates and executed powers of attorney in his favor. Initially, Mr. Thomas only prepared annual tax returns for the Sewells. However, in 1998 the firm began providing “Elder Care Services.” After receiving a brochure advertising these services, the Sewells met with Mr. Thomas to discuss the matter, but never signed any agreement. In September 2000, Mr. Thomas prepared a letter and had Mr. and Mrs. Sewell sign it, which stated, among other things, that “Any un-billed services of Thomas, Hunter <& Company, LLP are to be billed and paid by your estate.”

In June 2002, Mr. Thomas began invoicing the Sewells $250.00 per month for elder care services. The monthly fee increased to $300.00 in October 2003. The Sewells timely paid for all services invoiced through July 2004. Notwithstand-mg the monthly invoices, Mr. Thomas also prepared invoices itemizing any hourly services that he and his wife performed for the couple; these invoices, totaling $40,597.00, included charges dating back to 1996. Mr. Thomas kept the itemized hourly invoices in a file at his office and never sent them to the Sewells.

|¡;On October 16, 2003, Mr. and Mrs. Sewell each executed a durable power of attorney in favor of Mr. Thomas. On July 19, 2004, two days before Mr. Sewell’s death, Mr. Thomas brought Mrs. Sewell to Hibernia Bank where she opened a checking account (“Special Account”) in the name of “Irmgard Sewell or Tommy Taylor Thomas.” Both Mrs. Sewell and Mr. Thomas were listed as authorized signatories on the account. Although all of the Sewells’ financial accounts were addressed to Mrs. Sewell, the Special Account was addressed to Mr. Thomas’ office. A Se-well Hibernia Bank certificate of deposit, in the amount of $7,141.11, and a $20,000.00 check drawn on Mrs. Sewell’s Merrill Lynch account were deposited into the Special Account.

On July 26, 2004, Mr. Thomas used the power of attorney to withdraw $50,000.00 from Mrs. Sewell’s Barksdale Federal Credit Union account and deposited the money in the Special Account. On August 2, 2004, Mr. Thomas wrote a check drawn on the Special Account made payable to Hibernia Bank in the amount of $40,597.00. In return, Hibernia Bank issued a cashiers check made payable to “Thomas Hunter” in the amount of $40,597.00, which he deposited into his firm’s account. After a bank employee notified Mrs. Sewell of the transactions by Mr. Thomas, Mrs. Sewell retained legal counsel to revoke the power of attorney and to obtain her financial records from him.

In July 2005, Mr. Richard M. John, Mrs. Sewell’s attorney, filed a complaint with the Board, alleging that Mr. Thomas had breached his legal and fiduciary 14duties to Mrs. Sewell. Specifically, the complaint alleged that when Mrs. Sewell learned of the above transactions and began to question Mr. Thomas about them, he indicated that the money paid to his firm was for the elder services he had rendered. However, during the time period in question, the Sewells were being billed for those services in the amount of $250.00 to $300.00 per month, which they promptly paid. At no time were the Sewells ever invoiced for any other charges relating to elder services. The complaint further alleged that Mrs. Sewell received the itemized hourly invoices only after she revoked Mr. Thomas’ power of attorney and had her lawyer request her financial records.

The Board notified Mr. Thomas of the complaint, requested a response and commenced an investigation. In response, Mr. Thomas denied any wrongdoing and claimed Mrs. Sewell knew of the fees charged for the services, as the firm had included the fee range in its tax engagement letter to its clients each year. However, he admitted that the Sewells had not signed an engagement letter or contract. Pursuant to a subpoena duces tecum, Mr. Thomas turned over the Sewells’ records to the Board. Eventually, Mr. Thomas was charged with numerous violations of the Louisiana Accountancy Act, LSA-R.S. 37:71 et seq., and the Louisiana Administrative Code (“LAC”) § 46:XIX relative to the professional and occupational standards of certified public accountants.

Following an administrative hearing, the Board found that Mr. Thomas was dishonest in dealing with his clients; used his power of attorney to pay his firm’s | ¿bill; engaged in self-dealing; failed to send invoices to his clients; and engaged in conduct that brought dishonor, or was detrimental, to the accounting profession. Specifically, it determined Mr. Thomas had committed violations of LSA-R.S. 37:79 A(4), (8) and (11); LAC § 46:XIX.1701.-B(l); LAC § 46:XIX.1707.A(2); and LAC § 46:XIX.1707.A(11). As a result, the Board revoked his license, and ordered him in to pay an administrative fine of $16,000.00 and all costs incurred by the Board in the proceedings. The Board stayed the revocation of his license for a period of two (2) years provided Mr. Thomas complied with the Board’s |(iorder. The Board further ordered that during the stay Mr. Thomas was prohibited from acting as a fiduciary for any client. After the trial court denied his petition for judicial review of the Board’s order, Mr. Thomas appealed.

In the first of three assignments of error, Mr. Thomas contends the Board violated his constitutional right to due process because he never had the opportunity to confront his accuser, Mrs. Sewell, who did not appear at the administrative hearing. We find no merit to this assignment of error.

In Driscoll v. Stucker, 04-0589, p. 24 (La.1/19/05), 893 So.2d 32, 50, the Louisiana Supreme Court stated that the “[gjenuine unavailability of a witness is the jurisprudential requirement to obviate constitutional confrontation problems. Furthermore, a witness is not unavailable for purposes of the exception to the confrontation requirement unless the authorities have made a diligent and good faith effort to obtain his presence at trial.” (Citations omitted). The record discloses that the Board, at the request of Mr. Thomas, issued a subpoena to Mrs. Se-well, which was served on her attorney, Mr. John. Because Mrs. Sewell had moved to Germany shortly after the filing of the complaint but before the administrative hearing, she was not available to testify as a witness. The Board clearly made a good faith effort to compel Mrs. Sewell’s appearance at the hearing. Also, as noted by the trial court in her reasons for judgment, Mr. John filed the actual complaint with the Board, not Mrs. Se-well.

17Mr. Thomas also claims that the Board erred in allowing Mr. John to testify at the hearing because a court should not allow an attorney to act as both a key witness and advocate for a party, citing Gutierrez v. Travelers Ins. Co., 358 So.2d 349 (La.App. 4th Cir.1978). As previously mentioned, Mr. John filed the actual complaint. In that regard, the Board did not err in allowing Mr. John to testify.

Also, this case is distinguishable from Gutierrez. In that case, the attorney, the plaintiffs stepson, represented her in a workers’ compensation claim against her deceased husband’s (his late father’s) former employer. At the trial, the attorney also testified as a material witness for the plaintiff; his testimony was a substantial part of her case. The appellate court annulled the judgment and remanded the ease for a new trial, finding that the attorney had violated the Code of Professional Responsibility by serving as both the plaintiffs advocate in pursuing her claim and as a material witness on her behalf. In the instant case, Mr. John was not the complaint counsel at the adjudication proceeding nor was Mrs. Sewell an actual party to it.

In his second assignment of error, Mr. Thomas contends the Board’s imposition of the $16,000.00 administrative fine violated LSA-R.S. 37:79(A), which allows the Board to impose an administrative fee not to exceed two thousand dollars ($2,000.00) per violation. He claims that the Board found only Rfour violations— dishonesty, misuse of the power of attorney, self-dealing, and failure to send invoices — and, therefore, the imposed fine should not exceed $8,000.00. We disagree.

The $1,000.00 limit (see n. 13, infra) is not a limit per statute or rule violated. Rather it is a limit for each violation of a statute or rule. The Board found Mr. Thomas had violated six different statutory provisions and rules and, in some instances, committed multiple violations of a statutory provision and/or rule, e.g., he sent the Sewells deceptive or misleading invoices on ten separate occasions. In view of the evidence, we find the Board exercised restraint in imposing a total administrative fine of $16,000.00.

In the final assignment of error, Mr. Thomas argues that the Board erred in imposing sanctions based on hearsay evidence. Again, he refers to the absence of testimony from Mrs. Sewell to verify the allegations against him. Without her testimony, Mr. Thomas argues, the Board’s findings are based on hearsay evidence. We find no merit to this argument.

Five witnesses, including Mr. Thomas, testified at the hearing and 43 exhibits were introduced into evidence. The documentary evidence was obtained by subpoena from Mr. Thomas. The written decision indicates that the Board sustained several charges against Mr. Thomas, including misuse of the power of attorney; dishonesty in dealing with clients; fiscal dishonesty by obtaining payment from clients for services without providing them with an invoice; engaging in self-dealing; engaging in efforts to defraud the public by not concealing the actual cost |9of the elder care services; and, engaging in conduct that brings dishonor, or is detrimental, to the accounting profession.

After reviewing the documentary evidence, including the power of attorney to Mr. Thomas; the firm’s invoices and billing worksheets; the Hibernia Bank and Barksdale Federal Credit Union banks statements; and the correspondence between Mr. Thomas and the Sewells, and considering Mr. Thomas’ own testimony, we conclude the Board’s decision was not based solely on hearsay evidence. Mr. Thomas did not dispute the authenticity of the documentary evidence, and he readily acknowledged that he used the power of attorney to pay his firm $40,597.00 from monies obtained from Mrs. Sewell’s bank accounts, without her knowledge, for elder care services for which the Sewells never received an invoice.

“A reviewing court should not set aside an administrative agency’s decision to impose a particular sanction unless that decision can be characterized as arbitrary, capricious or an abuse of discretion.’ ” Rabb v. State Board of Certified Public Accountants of Louisiana, 04-0586, p. 2 (La.App. 4 Cir. 12/22/04), 893 So.2d 904, 907 (citations omitted). The Board’s decision was not arbitrary, capricious or an abuse of discretion.

Accordingly, the judgment of the district court, dismissing Mr. Thomas’ petition for judicial review of the Board’s November 29, 2007 order, is affirmed.

AFFIRMED.

      .LSA-R.S. 49:964 G provides:
      The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
      (1) In violation of constitutional or statutory provisions:
      (2) In excess of the statutory authority of the agency;
      (3) Made upon unlawful procedure;
      (4) Affected by other error of law;
      (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise or discretion; or
      (6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand observation demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

      . LSA-R.S. 49:950 et seq.

      . Mr. Sewell died on July 21, 2004, at the age of 100. He suffered from dementia and was living in a nursing home at the time of his death. Mrs. Sewell, 90 years old and a native of Germany, resided in the United States for fifty years. In 2005, she moved back to Germany.

      . In November 2003, Mr. Thomas's wife, Wil-lica, began performing elderly care services for the Sewells, which included driving them to and from medical appointments, the bank, the store and other places; setting up a medical alert system in their home; setting up cleaning services for their home; and repairing their garage. Mr. Thomas initially billed the Sewells $20.00 per hour for his wife's time, but later increased that amount to $30.00 per hour. He billed his own time at $100.00 to $150.00 per hour.

      . Every check drawn on the Special Account, save the $40,597.00 check, was written and signed by Mrs. Sewell.

      . Mr. Thomas appeared at the hearing and represented himself. Also, the Board had issued a subpoena to Mrs. Sewell, which was served on her attorney, but she was no longer living in the United States and, therefore, did not appear.

      . As in effect at the lime of the offenses, LSA-R.S. 37:79, relative to enforcement against holders of professional accountant certificates and permits, provided, in part:
      A. After notice and a hearing as provided for in R.S. 37:81, the board may revoke any certificate or permit, or suspend for a period of not more than five years, or refuse to issue or renew any certificate or permit, reprimand, censure, or limit the scope of practice of any licensee, impose an administrative fine not to exceed one thousand dollars per violation, or place any licensee on probation, all with or without terms, conditions, and limitations, for any one or more of the following reasons:

      (4) Dishonesty, fraud, or gross negligence in the performance of services while holding a license or in the filing or failure to file the licensee’s own income tax returns.

      (8) Conduct reflecting adversely upon the licensee's fitness to perform services while a licensee.

      (11) Engaging in efforts to deceive or defraud the public.

      . LAC § 46:XIX.1701.B(1), provides:
      A licensee in the performance of professional services shall neither knowingly misrepresent facts nor subordinate his judgment to that of others. He shall be objective and shall not place his own financial interests nor the financial interests of a third party ahead of the legitimate financial interests of the client or the public in any context in which the client or the public can reasonably expect objectivity from one using the CPA title.

      . LAC § 46:XIX.1707.A(2), provides:
      Conduct reflecting adversely upon the licensee’s fitness to perform services, within the meaning of R.S. 37:79(A)(8), includes but is not limited to the following:
      (2) Fiscal dishonesty of any kind.

      . LAC § 46:XIX.1707.A(11), provides:
      Conduct reflecting adversely upon the licensee’s fitness to perform services, within the meaning of R.S. 37:79(A)(8), includes but is not limited to the following:
      (11) Conduct that brings dishonor, or is detrimental, to the profession.

      . The Board also ordered that its findings be published in Lagniappe, the official newsletter of the Society of Louisiana CPAs, and forwarded to all State Boards of Accountancy and other appropriate public authorities and private organizations.

      . LAC § 46:XIX.1909, relative to the administrative hearing, provides, in pertinent part, "[s]ubpoenas shall be issued upon request of the respondent, complaint counsel, or an investigating officer.”

      . Acts 2006, No. 214, § 1 increased the administrative fine from $1,000.00 to $2,000.00. Although the misconduct and the filing of the complaint occurred prior to the change in the law, the administrative hearing was held after the change. Because the fine is an administrative sanction, the law in effect at the time of the hearing was applicable. However, the Board's written decision indicates that it applied the law in effect at the time of the offenses, thus limiting Mr. Thomas' administrative fines to $1,000.00 for each violation.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    Pamela Stamps MITCHELL v. Paul R. VALTEAU, Jr., Three Dogs LLC, Washington Mutual Bank and Wells Fargo Bank, National Association.
    No. 2009-CA-1095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 2010.

      Henry W. Kinney III, Michael L. De-Shazo, John D. Miranda, Kinney & Ellin-ghausen, New Orleans, LA, for Plaintiff/Appellant Pamela Stamps Mitchell.

      Louis Graham Arceneaux, Stacy C. Wheat, Graham Arceneaux & Alien, LLC, New Orleans, LA, for Defendant/Appellee Wells Fargo N.A.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR.)
   PATRICIA RIVET MURRAY, Judge.

|, This is a suit for wrongful seizure damages. The plaintiff, Dr. Pamela Stamps Mitchell (“Dr. Mitchell”), appeals the judgment of the trial court granting the motion for summary judgment filed by the defendant, Wells Fargo Bank, National Association (“Wells Fargo”), and dismissing all the parties. We find the underlying executory proceedings were properly commenced by the holder of the mortgage note, Washington Mutual Bank (“WMB”). Given Dr. Mitchell’s failure to cure the default specified in the executory proceedings, we find WMB was entitled to complete the executory proceeding despite the mid-foreclosure transfer of the servicing of the mortgage note to Wells Fargo. Because Dr. Mitchell was served with the original notice of seizure, we find she was not entitled to be served with the amended notice of seizure. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 30, 2001, Dr. Mitchell borrowed $148,724 to purchase a house and the lot on which it was located, bearing the address 4528 Laurel Street, New Orleans, Louisiana (the “Property”). On that same date, Dr. Mitchell executed a note for the borrowed amount, which was secured by a mortgage on the Property. | ?The note was made payable to the original mortgagee, North American Mortgage Company. The mortgage contained a confession of judgment, providing for the acceleration of the amount secured and the sale of the property in the event of a default on the loan. On May 2, 2001, the mortgage was recorded in the mortgage records. Thereafter, North American assigned the mortgage note to Homeside Lending, Inc., who reassigned the mortgage note to WMB.

In 2006, Dr. Mitchell defaulted on her mortgage payments. On December 15, 2006, WMB commenced an executory proceeding. In its petition, WMB described with particularity its right to bring the action as the last holder of the mortgage note and described itself as the “successor to Homeside Lending, Inc.” The trial court ordered the issuance of a writ of seizure and sale.

On January 23, 2007, Dr. Mitchell was served personally with the notice of seizure, which stated that a sheriffs sale was tentatively scheduled for November 2, 2007.

Meanwhile, on January 16, 2007, WMB’s attorney sent a letter to the sheriffs office informing that the mortgage company had requested that the case be placed on hold and that service be withheld as the Property had hurricane damages.

Subsequently, WMB transferred the servicing of the mortgage note to Wells Fargo. On March 27, 2007, Dr. Mitchell and Wells Fargo entered into a “Stipulated Partial Reinstatement/Repayment Agreement.” According to the repayment agreement, Dr. Mitchell agreed to pay accelerated loan payments. The agreement provided that Wells Fargo would “hold legal action only upon receipt of agreed funds and the signed agreement.” Addressing the pending executory proceeding, the agreement provided:

| s“We will instruct our foreclosure counsel to suspend foreclosure proceedings once the funds for partial reinstatement have been received by the aforementioned date. If you make all the required payments resulting in reinstatement, we will instruct our foreclosure counsel to dismiss foreclosure proceedings and report to credit bureaus accordingly. If you default on total reinstatement or the terms of this repayment agreement, we will resume the foreclosure action.”

Although Dr. Mitchell made a few (about two) payments, she was unable to comply with the payment terms of the repayment agreement.

On July 12, 2007, WMB Mutual filed a Supplemental and Amended Petition incorporating by reference the allegations of its original petition and seeking the issuance of an amended writ of seizure to reflect the payments Dr. Mitchell had made.

On July 17, 2007, the sheriffs office returned the original writ of seizure with the following handwritten notation: “Rec’d said writ on 12/26/06 and recorded same. On 7/12/07, rec’d word to return writ to court ‘Unsatisfied. ’ Petition to be amended and amended writ to follow. 7/12/07 Writ returned Unsatisfied.”

On July 19, 2007, the trial court ordered that the original petition be amended and that an amended writ of seizure be issued. On September 7, 2007, the sheriff issued an amended notice of seizure. During the following week (September 10 to 17, 2007), the sheriff attempted to serve Dr. Mitchell at her residence on seven occasions. Because the sheriff was unable to serve Dr. Mitchell, WMB filed a motion to appoint a curator, which the trial court granted in October 2007. In November 2007, the curator accepted service on Dr. Mitchell’s behalf.

14On January 3, 2008, the Property was sold at a sheriffs sale to a third party purchaser, Three Dogs, L.L.C. (“Three Dogs”). Upon learning of the sale, Dr. Mitchell filed a petition for preliminary and injunctive relief. The trial court denied the request for preliminary relief, and dismissed her suit.

On February 27, 2008, Dr. Mitchell was evicted from the Property.

On April 11, 2008, Dr. Mitchell filed a Petition to Annul Executory Proceedings and Judicial Sale, and for Damages for Wrongful Seizure against four defendants: (i) Three Dogs; (ii) Paul Valteau, Jr., in his capacity as civil sheriff; (iii) WMB, the petitioner in both the original and amended petitions and the motion to appoint a curator; and (iv) Wells Fargo, who since January 2007, demonstrated that it was the holder of the mortgage note. Dr. Mitchell filed an amended petition for damages for wrongful seizure naming as defendants only WMB and Wells Fargo, effectively dismissing the other two defendants.

On June 17, 2008, Wells Fargo filed peremptory exceptions of no cause of action and res judicata. On October 17, 2008, the trial court denied the exception of no cause of action, but granted in part the exception of res judicata as to any allegation seeking to declare the sale pursuant to the executory proceeding null and void.

On November 12, 2008, WMB filed a Motion to Substitute its receiver, the Federal Deposit Insurance Company, in its place as the proper party defendant, which the trial court granted.

IsOn November 18, 2008, Wells Fargo filed a motion for summary judgment. Following a hearing, the trial court granted the motion and rendered judgment dismissing all the parties. The trial court orally reasoned:

“Pit’s a transaction with a secured property in the executory process once the original writ is served. The fact that they did all this stuff after she defaulted on the paper plan [repayment agreement] was really superfluous for my interpretation of law. I don’t see how I can give you any relief in that regard. And the fact that she didn’t receive additional notification that is sufficient documentation in the record that she may well have. But you know, once it starts, it’s a snowball headed down the hill.”

Dr. Mitchell filed a motion for new trial on the basis that the trial court legally erred in dismissing the suit as to WMB since WMB did not join in Wells Fargo’s motion for summary judgment. The trial court denied the motion. This appeal followed.

DISCUSSION

Appellate courts review the grant of a summary judgment motion de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Samaha v. Rau, 07-1726, p. 3 (La.2/26/08), 977 So.2d 880, 882-83. According to that standard, summary judgment shall be granted 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. “Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive | ^determination of every action’ and shall be construed to accomplish these ends.” King v. Parish National Bank, 04-0337 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966 A(2)).

In determining whether summary judgment is appropriate the two issues a court must resolve are 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, 04-0066, 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. Id. Simply put, a “material” fact is one that would make a difference on the trial on the merits. Id.

In this case, Dr. Mitchell’s cause of action is for wrongful seizure by execu-tory process. Executory process is an expedited in rem action. Hood Motor Co. v. Lawrence, 320 So.2d 111, 112-13 (La.1975). Executory process is “used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment.” La. C.C.P. |7art. 2631. Executory process is a “unique and harsh remedy requiring strict construction.” Moore v. Louisiana Bank & Trust Co., 528 So.2d 606, 609 (La.1988)(citing Myrtle Grove Packing Co. v. Mones, 226 La. 287, 291, 76 So.2d 305, 306 (1954)).

A creditor seeking to enforce a mortgage or privilege on property by executory process must file a petition praying for the seizure and sale of the property affected by the mortgage or privilege. La. C.C.P. art. 2634. To prove his right to use execu-tory process, a plaintiff-creditor must submit with its petition authentic evidence of three things: (1) the mortgage or privilege on the property sought to be seized and sold; (2) the amount of the indebtedness sought to be enforced; and (3) the plaintiff-creditor’s right to enforce the mortgage or privilege under the executory process. La. C.C.P. Art. 2637, Cmt. (a). Once the order has issued and the property has been seized, the defendant-debtor may contest the seizure only by taking a suspensive appeal or by instituting an injunction proceeding to arrest the seizure and sale. La. C.C.P. art. 2642.

In this ease, WMB filed a petition for executory process and attached thereto authentic evidence satisfying all three requirements for obtaining an order of seizure and sale: a copy of the note, mortgage agreement, and a certified copy of the assignment of the mortgage note to it. Given WMB satisfied all the authentic evidence requirements for executory process, the | strial court ordered the issuance of a writ of seizure, and the Property was seized. It is undisputed that Dr. Mitchell was served with the initial notice of seizure. Dr. Mitchell, however, contends that the sheriff also was required to serve her with the amended notice of seizure from which her property was seized and sold. In support of her argument that service of the amended notice of seizure was required, Dr. Mitchell cites La. C.C.P. art. 2721 as mandating the sheriff serve “any” notice of seizure upon the judgment debtor. Wells Fargo, on the other hand, cites Chase Manhattan Mortgage Corp. v. Lassiter, 04-484 (La.App. 5 Cir. 11/30/04), 889 So.2d 1155, for the proposition that once a debtor is served with an initial notice of seizure no further notice of seizure is required to be served.

Resolution of the issue of whether service of the amended notice of seizure was required turns on construction of several codal and statutory provisions. La. C.C.P. art. 2721 provides that the sheriff must serve upon the defendant “a written notice of the seizure of the property”. La. C.C.P. art. 2293(B) also provides that the sheriff shall serve “a notice of seizure.” The content requirements for the notice of seizure are enumerated in La. R.S. 13:3852(A), which provides that the notice of seizure shall include, “if applicable, the date of the first scheduled sale of the property.” La. R.S. 13:3852(A). A suggested form of notice is included in La. R.S. 13:3852(B), which provides in pertinent part: “This matter is scheduled for sheriffs sale on [the actual first scheduled date of sale] ... or any day thereafter as scheduled by the sheriff.”

| ^Construing La. R.S. 13:3852 and La. C.C.P. Art. 2293(B) in pari materia, the court in Lassiter, supra, rejected a debt- or’s argument that she was entitled to a second notice of seizure when the first sale was delayed. In Lassiter, supra, the debt- or was personally served with a notice of seizure, which included the date of the first scheduled sale of the property. That sale date was delayed due to the debtor’s bankruptcy filing. After the debtor’s bankruptcy was dismissed, the creditor rescheduled the sale without requesting that the debtor be served with another notice of seizure containing the new sale date. After the sheriffs sale occurred, the debtor filed a Motion to Annual Sale, contending that the sale of her property was not valid because she was not served with a second notice of seizure. Stated otherwise, she contended that the creditor “did not provide proper Mennonite notice to her of a second sale date.” Lassiter, 04-484 at p. 4, 889 So.2d 1156.

Rejecting the debtor’s contention, the court in Lassiter, supra, reasoned that the debtor had defaulted under the terms of the mortgage and that the creditor had validly exercised its right to have the property seized and sold in accord with the executory process provisions, La. C.C.P. arts. 2631-2638. The court further reasoned that read together La. C.C.P. art. 2293(B) — which requires service of “a written notice of seizure of the property” — and La. R.S. 13:3852 — which requires the notice include “the date of the first scheduled sale of the property” — mandate |10that “upon seizure of their property, a defendant receive a written notice that informs them of the first scheduled sale date.” Lassiter, 04-484 at p. 4, 889 So.2d 1157. The court still further reasoned that there was no Louisiana authority for requiring a creditor to provide a debtor with notice of a rescheduled judicial sale. Summarizing, the court in Lassiter held that when a sheriffs sale is delayed, the creditor is not required to serve the debtor with another notice of seizure. The court concluded that the Louisiana provisions for notice to a debtor in the event of seizure, which comport with the Mennonite due process requirements, mandate only notice of the original sale date. Under these provisions, the onus is placed on the debtor to monitor the executory proceeding for the rescheduled sales date.

Dr. Mitchell contends that Lassi-ter is distinguishable because it involved the same creditor seeking to reschedule the sale of the property under the same executory proceeding. In contrast, she contends that the Supplemental and Amending Petition filed in the executory proceeding involved a new creditor— Wells Fargo — and resulted in the issuance of a new writ of seizure. She contends that “[sjervice of notice of the new writ was mandatory under Article 2721, and could not be waived by service of notice of a prior writ by a former creditor [WMB] who no longer had the right to bring ex-ecutory proceedings against Dr. Mitchell.” We disagree.

The situation in this case is analogous to the situation presented in the Lassiter case. Dr. Mitchell defaulted on her loan agreement and WMB established its right to proceed by executory process to seize and sell the Property. Dr. | ^Mitchell was served with a notice of seizure. Thereafter, she entered into the repayment agreement. The repayment agreement is analogous to the bankruptcy filing in Lassiter. Both postponed a scheduled sale date. The repayment agreement expressly provided that the executory proceeding would be placed on hold for the time the repayment agreement was in place. The agreement also provided for the resumption of the foreclosure in the event of a default in its terms, which Dr. Mitchell acknowledged occurred. When the executory proceeding was resumed, there was no obligation to serve Dr. Mitchell with another notice of seizure.

Our holding is buttressed by the inclusion in the initial notice of seizure that Dr. Mitchell received of language warning her that she may not be given service of any resetting of the sale date and that she had the duty to monitor the executory proceeding. Particularly, the notice she received provided that if the Property did not sell or if the sale was rescheduled to a later date the mortgagor is “not guaranteed notice of the new sale date” and that it is the mortgagor’s “responsibility to monitor the progress of the case.” We thus find the trial court correctly concluded that there was no requirement that Dr. Mitchell be served with the amended notice of seizure.

Dr. Mitchell further contends that Wells Fargo, not WMB, was required to file the Supplemental and Amending Petition because it was the party with whom she entered the repayment agreement and the apparent holder of the mortgage note when the supplemental petition was filed. Continuing, she argues that Wells Fargo | i2was required to establish by authentic evidence its right to enforce the mortgage note. See American Security Bank of Ville Platte v. Deville, 368 So.2d 167 (La.App. 3rd Cir.1979). This contention would be correct if, as Dr. Mitchell suggests, WMB’s initial executory proceeding had been dismissed and Wells Fargo had commenced anew an executory proceeding after she defaulted on the repayment plan. However, the executory proceeding was neither dismissed nor commenced anew.

WMB was the proper party plaintiff to complete the executory proceeding it validly commenced for three reasons. First, the Property remained seized from the time WMB commenced the proceeding in December 2006 until the sheriffs sale to the third party purchaser in January 2008. Second, Dr. Mitchell never cured the initial default on the mortgage note that triggered the commencement of the executory proceeding. Finally, the repayment agreement expressly provided that in the event Dr. Mitchell defaulted on its terms the pending foreclosure action would be resumed.

Dr. Mitchell further contends, as she did at the trial court level, that it was error for the trial court to allow Wells Fargo to introduce into evidence at the summary judgment hearing the entire record of the underlying executory proceeding. She contends that Wells Fargo failed to identify any specific portions of that record as supporting its motion for summary judgment and that she had no opportunity to review the record or respond. Wells Fargo counters that because Dr. Mitchell’s suit is based upon the facts of the underlying executory proceeding, |iait logically follows that the inclusion of the record of that proceeding in this case was proper. Wells Fargo points out that Dr. Mitchell’s counsel was required to make a good faith examination of the executory proceeding record before bringing this suit. Wells Fargo further points out that it is customary to introduce the record of a related prior proceeding when, as in this case, that proceeding is at the heart of the issue in the case at hand. We find no error in the trial court’s evidentiary rulings that the record of the prior proceeding is a public record and that Wells Fargo could introduce that record in support of its motion for summary judgment.

Dr. Mitchell still further contends, as she did at the trial court level, that summary judgment was prematurely granted because no discovery had taken place at the time summary judgment was granted. In support, she cites La. C.C.P. art. 966 C(l), which provides that summary judgment should only be considered “[a]fter adequate discovery.” Wells Fargo counters that discovery is not a prerequisite to granting summary judgment. Wells Fargo emphasizes Dr. Mitchell’s failure to conduct any discovery despite the passage of more than nine months between the filing of the suit and the summary judgment hearing. Wells Fargo contends that discovery is irrelevant to establish compliance with the law regarding execu-tory process and that a delay for conducting discovery in this case therefore is unwarranted.

The jurisprudence holds that “while parties must be given fair opportunity to carry out discovery and present their claim, there is no absolute right to delay action on motion for summary judgment until discovery is complete.” Thomas v. North 40 Land Development, Inc., 04-0610, p. 31 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1179 (quoting Butzman v. Louisiana Power and Light Co., 96-2073, p. 4 (La.App. 4 Cir. 4/30/97), 694 So.2d 514, 517). As the Louisiana Supreme Court has held, “[t]he only requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact.” Simoneaux v. E.I. du Pont de Nemours and Co., 483 So.2d 908, 912-13 (La.1986). Applying these principles, we find the trial court did not prematurely grant summary judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The plaintiff is a veterinarian and a life-long resident of New Orleans.

      . Since Dr. Mitchell has not assigned as error the trial court's denial of her motion for new trial, the issue of whether WMB was properly dismissed is not before us on appeal. For this reason, the exception of no cause of action WMB filed in this court is denied as moot. (In her brief, Dr. Mitchell expressly noted that she takes no position on WMB's exception.)

      . An authentic act is one executed before a notary public in the presence of two witnesses. La. C.C.P. art. 2234. An act evidencing a mortgage or privilege imports a confession of judgment when the obligor acknowledges the obligation secured by the act and confesses judgment thereon, whether before or after maturity. La. C.C.P. art. 2632.

      . As noted elsewhere, Dr. Mitchell filed an injunction seeking to arrest the seizure and sale of the Property, which was dismissed. Based on that prior request for injunctive relief, the trial court in this case granted in part Wells Fargo's exception of res judicata. Although Dr. Mitchell assigns as error the trial court's ruling on that exception, we find it unnecessary to reach that issue since we find no substantive defects in the executory proceeding.

      . The court in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), recognized that "prior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide 'notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' ” 462 U.S. at 795, 103 S.Ct. 2706.


author: EZELL, Judge.

text:
    Cindy YOUNG, et al. v. Irvin T. JOY, et al.
    No. CA 09-756.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Daniel Keith Wall, Marcantel & Marcan-tel, Jennings, LA, for Plaintiff/Appellant, Cindy Young.
    Jennifer Bailey Drago, United States Attorney, Lafayette, LA, for Defendant/Appellee, USA, U.S. Army Corps of Engineers.
    David Oliver Way, Lafayette, LA, for Defendants/Appellees, Avis Rent-A-Car Systems, Inc., Pathfinder Insurance Company, Irvin T. Joy.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

11 Cindy Young appeals the decision of the trial court awarding her $22,524.24 as a result of a car accident with Irvin Joy. For the following reasons, we hereby affirm the decision of the trial court.

On November 14, 2005, Ms. Young was involved in a motor vehicle accident with Mr. Joy. As a result of the accident, she sustained neck and shoulder strains. Liability was stipulated to by the Defendants, Mr. Joy, Avis-Rent-A-Car Systems, and Pathfinder Insurance (hereinafter the Defendants). Only the damages incurred by Ms. Young were before the trial court. Despite fourteen months of treatment with her physician, Dr. Brian Wilder, the trial court found that because Ms. Young had failed to mitigate her damages, she suffered only a six-month injury. He awarded her $7,500.00 for pain and suffering damages, $2,500.00 for future pain and suffering, $4,171.50 in lost wages, $1,218.00 in expert fees for the testimony of Dr. Wilder, and $7,134.74 in medical damages. The medical damage award did not award her any damages for treatment received beyond six months after the accident. From this decision, Ms. Young appeals.

Ms. Young asserts eight assignments of error on appeal. She claims that the trial court erred in finding that she suffered only a six-month soft tissue injury; that the trial court erred in finding she failed to mitigate her damages; that the trial court erred in awarding only $7,500.00 in pain and suffering damages; that the trial court erred in awarding only $7,134.74 of $10,223.99 in medical bills incurred; that the trial court erred in failing to award $1,217 to her for failed mediation costs; that the trial court erred in failing to award her children loss of consortium damages; that the trial court erred in allowing evidence of her substance abuse and treatment; that the trial court erred in finding that Ms. Young had a “serious problem with abusing ^prescription medication prior to the accident.”

We will first address Ms. Young’s claims that the trial court erred in allowing evidence of her substance abuse into the record and in finding that she abused prescription drugs prior to the accident, as our rulings on these issues greatly affect our findings on her other assignments of error.

The district court is awarded vast discretion in its decisions on evidentiary rulings, and its decision to admit or exclude evidence will not be reversed on appeal absent a clear showing of abuse of that discretion. Foster v. Rabalais Masonry, Inc., 01-1394 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784. Ms. Young argues that a federal statute, 42 U.S.C. § 290(a)(a) through 290(f)(f), prohibits the disclosure of records relating to substance abuse treatment. However, this argument is of no moment as the records of Savoy Medical Center relating to her substance abuse were admittedly obtained via Ms. Young signing a medical records release specifically allowing the release of medical records protected under federal law, including records dealing with “drug abuse.” She simply cannot hide behind federal law when she specifically waived that protection by signing the waiver allowing the release of those records.

Additionally, Ms. Young objected that the records were irrelevant to the proceedings below. Again, we disagree. The records detail a serious substance abuse problem that Ms. Young fought with for a prolonged period of time. The fact that she was addicted to the exact prescription drugs she received as part of her treatment for the injuries sustained in this accident, as well as the depth of that addiction, is completely relevant to the veracity of her claims of pain following the accident. We cannot disagree with the trial court that evidence of Ms. Young’s substance abuse problem is relevant to this case.

| -¡Finally, Ms. Young argues in brief that language in the medical record constitutes hearsay evidence. However, “[t]o preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony, and state the reasons for the objection.” LaHaye v. Allstate Ins. Co., 570 So.2d 460, 466 (La.App. 3 Cir.1990), writ denied, 575 So.2d 391 (La.1991). Ms. Young did not properly preserve this issue by objecting at trial. Thus, it is not now before us, and we decline to consider it. The trial court did not abuse its discretion in admitting Ms. Young’s medical records dealing with her history of substance abuse.

Having determined that the trial court properly admitted evidence concerning Ms. Young’s prescription drug abuse problem, we next turn to her claim that the trial court erred in finding that she suffered from drug abuse prior to the accident.

A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Under the manifest error standard, the criterion is whether the trial court’s findings are reasonable; even if the appellate court feels its own evaluation of the evidence is more reasonable, the findings of the trial court cannot be reversed if they are, in fact, reasonable. Lewis v. State through Department of Transportation and Development, 94-2370 (La.4/21/95), 654 So.2d 311. In other words, the appellate court may not i’everse simply because it is convinced that, had it been sitting as a trier of fact, it would have ruled differently. Orea v. Scallan, 32,622 (La.App.2d Cir.1/26/00), 750 So.2d 483. A finding of fact by a trial court should be upheld unless it is clearly wrong. Madison v. Thurman, 32,401 (La.App.2d Cir.10/27/99), 743 So.2d 857.

Mayzel v. Gould, 44,081, p. 5 (La.App. 2 Cir. 2/25/09), 4 So.3d 979, 982.

Records from both the Savoy Medical Center and Allen Parish Hospital indicate that Ms. Young not only started abusing prescription drugs several years prior to the accident, but that she had been taking between twenty and thirty-five Lortabs per day for at least two years prior to the accident. Some of the records ^indicate that she may have had this problem as early as four years before the accident. Ms. Young admitted that she abused Lor-tabs, and pharmacy records show her filling prescriptions for the drug throughout 2004 and 2005 before the accident. The evidence in the record overwhelmingly indicates that Ms. Young had a serious drug problem prior to the accident. Ms. Young’s claim that the trial court erred in that finding is without merit.

Because they are so closely interwoven, we will next address Ms. Young’s claims regarding the trial court’s findings that she suffered only a six-month injury and that she failed to mitigate her damages together.

The medical records of Dr. Wilder show that Ms. Young suffered a cervical and shoulder strain as a result of the accident. Dr. Wilder ordered Ms. Young to undergo physical therapy and prescribed her Lor-tab, the drug she was addicted to, as well as a muscle relaxer, Soma. Dr. Wilder testified that Ms. Young never told him of her drug problem and that he prescribed these drugs to her on every visit she made to his office. An MRI performed on Ms. Young showed that she had a congenital narrowing of her spine unrelated to the accident as well as a mildly bulging disc that in no way impinged her nerves. Ms. Young complained of radiation of pain from her shoulder and neck until the MRI showed no impingement, then those symptoms disappeared. Ms. Young failed to go to physical therapy as ordered and was dismissed as a patient from the Thibo-deaux, Albro, & Touchet Therapy Group for this reason. However, she continued to tell Dr. Wilder that she was attending and improving with therapy. She did, however, continue to fill the Lortab prescriptions despite not attending therapy. Six months after the accident, she told Dr. Wilder that she was ninety-percent back to normal, and he hoped to discharge her soon thereafter. However, just before being discharged form his care, Ms. Young claims that she | .^aggravated the injury, requiring additional pain killers. When presented with Ms. Young’s history of drug abuse, Dr. Wilder admitted the potential that some of her complaints and treatments could be related to drug-seeking behavior. Most damningly, while treating with Dr. Wilder, Ms. Young went to rehabilitation in an attempt to break her addiction to pain killers. However, just four days after her release from the Savoy Medical Center, Ms. Young admits that she went back to Dr. Wilder, where she once again received a prescription for Lor-tab and Soma.

It is clear that the trial court examined these facts and determined that Ms. Young’s actions included drug-seeking behavior and that her credibility was sparse at best.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for 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.

Rosell, 549 So.2d at 844. When the factual finding of the trial court is based on a credibility call, that finding can virtually never be manifestly erroneous or plainly wrong. Stobart, 617 So.2d 880. The trial court found that Ms. Young was likely healed around the time that she told Dr. Wilder she was ninety percent better and faced discharge from her care. Moreover, the trial court found that by wilfully refusing to attend physical therapy, Ms. Young at the least prolonged whatever symptoms she actually suffered from up to and beyond this six-month time-frame. The trial court clearly attributed any alleged symptoms after this time to drug seeking, and based on the record before this court, we can find no error in this conclusion. We can find no error in this trial court’s conclusion that Ms. Young failed to mitigate her damages when she refused physical therapy in lieu of seeking only the pain medications she was addicted to at that time. These assignments of error also lack merit.

| ,¡We next turn to Ms. Young’s claim that the trial court erred in failing to award her children damages for loss of consortium. Again, we must disagree. There is no evidence in the record whatsoever concerning this claim save for a statement from Ms. Young that she was not able to play with her children as much after the accident. Nevertheless, there was no testimony from either Ms. Young or the children as to the decreased amount or quality of time she was able to spend with them, the effect on them, or any other evidence as to this claim. We can find nothing in the record indicating that the trial court’s ruling on this issue to be manifest error.

Having addressed Ms. Young’s assignments of error concerning the factual findings of the trial court below, we will now turn our attention to her assignments of error concerning damages.

It is well-settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages. Louisiana Civil Code article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74.... Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review.

Guillory v. Lee, 09-75, p. 14 (La.6/26/09), 16 So.3d 1104, 1116-17.

While the trial court’s award of $7,500.00 for the cervical and shoulder strains may be somewhat low for a six-month injury requiring medical treatment and therapy, this court cannot find the award to be abusively low, especially in light of the facts of this particular case, including Ms. Young’s failure to attend therapy and the trial court’s determination that much of Ms. Young’s treatment was related to drug-seeking behavior. Likewise, in light of these facts, we cannot find that the trial court abused its discretion in awarding special medical damages for only the first six |7months of Ms. Young’s treatment. Accordingly, we find that the trial court did not abuse its discretion in either its award of $7,500.00 for pain and suffering damages or in its award of $7,134.74 in special medical damages.

Finally, Ms. Young claims that the trial court erred in failing to award her $1,271.00 in costs for a failed mediation attempt. Ms. Young’s three-sentence addressing of this issue in brief is so scant as to border on waiving this assignment of error. However, out of an abundance of caution, we will address it. Ms. Young and the Defendants apparently agreed to mediation at some point in the proceedings, as there is no indication mediation was ordered by any court. This mediation failed to reach an amicable conclusion. Louisiana Revised Statutes 9:4109 states that “[i]f the case is not settled by mediation, the costs of mediation shall be taxed as costs of court upon rendition of a final judgment.” However, this subsection is subject to prior language stating it should apply “unless the parties agree to some other allocation of cost.” It is clear from the mediation bill that the parties had agreed to split the costs of the mediation, as the bill charges each party the $1,271.00 Ms. Young now seeks to recover. As there is nothing in the record to indicate anything other than this fact, the trial court did not err in failing to award Ms. Young her share in the failed mediation, especially in light of the fact that it is she, rather than the Defendants, who is appealing the outcome of the trial.

For the above reasons, the decision of the trial court is hereby affirmed. Costs of this appeal are hereby assessed against Ms. Young.

AFFIRMED.


author: DAVID E. CHATELAIN, Judge Pro Tempore.

text:
    Donald R. ALEXANDER v. Ira M. TATE, et al.
    No. 09-844.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Terry B. Loup, Roderick A. James, Morris Bart, LLC, New Orleans, LA, for Plaintiff/Appellee Donald R. Alexander.
    Ian A. MacDonald, Jones Walker, Lafayette, LA, for Defendants/Appellants Zack’s Auto Parts, Inc. Ira M. Tate Progressive Casualty Insurance Co.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and DAVID E. CHATELAIN, Judges.
   DAVID E. CHATELAIN, Judge Pro Tempore.

Bin this suit arising from a motor vehicle accident, the defendants appeal the trial court’s denial of their request to exercise a peremptory challenge to exclude a potential juror and allowing the plaintiff to introduce information concerning his settlement of a separate, unrelated motor vehicle accident claim. The defendants also appeal the amount the jury awarded for general damages and damages for loss of enjoyment of life. For the following reasons, we affirm.

FACTS

On August 3, 2005, Donald Alexander’s vehicle was hit broadside by a vehicle driven by Ira Tate when Mr. Tate failed to see Mr. Alexander’s vehicle as he approached the intersection of Louisiana Highway 85 and Hubertville Road in Iberia Parish. Mr. Alexander testified that he saw Mr. Tate’s vehicle stopping at the stop sign as he approached it and thought Mr. Tate was stopped. According to Mr. Alexander, Mr. Tate’s vehicle kept creeping forward, so he moved to the other lane of travel to avoid a collision and hit his brakes, but the vehicles collided anyway. Mr. Alexander sued Mr. Tate; Mr. Tate’s employer, the owner of the vehicle driven by him; and the insurer of Mr. Tate’s employer to recover damages he suffered as a result of the collision.

Mr. Alexander was forty-six years of age at the time of the accident. The Social Security Administration had declared him disabled due to a heart condition. After the accident, an ambulance transported him to the New Iberia Medical Center emergency room. He complained of abrasions to his right forehead and right elbow and pain on the left side of his neck and in his low back. The emergency room doctor prescribed Flexeril for muscle spasm and Voltaren for pain. X rays taken that day | .¿revealed degenerative changes in Mr. Alexander’s middle and low cervical spine. Thereafter, Mr. Alexander sought medical treatment for his injuries from Dr. Keith Mack, a general practitioner; Dr. Allen J. Johnston, an orthopedist; and Dr. Sandra Weitz, an anesthesiologist and pain management specialist.

Mr. Alexander first saw Dr. Mack six days after the accident. He complained of pain on the left side of his neck and his low back. He also had a small scratch on his forehead, which was healed, and skin abrasions on his right elbow. Dr. Mack instructed Mr. Alexander to continue taking the medication the emergency room doctor prescribed and also treated him with heat, massage, ultrasound, and electronic stimulation in his office. On September 2, 2005, Mr. Alexander’s neck was x-rayed again. The X rays were interpreted as evidencing cervical spasm and degenerative cervical discs. The medications and treatment Dr. Mack prescribed were not providing Mr. Alexander lasting relief, and Dr. Mack referred him to a physical therapist in his office.

Mr. Alexander returned to Dr. Mack on November 15, 2005, complaining that his neck and low back were not improving, the medications were not alleviating his pain, the physical therapy provided only temporary relief of his pain, he was having trouble sleeping, and he was stiff when he rose in the mornings. Dr. Mack prescribed a new anti-inflammatory medication and another muscle relaxer. He also suggested that Mr. Alexander get MRIs of his neck and back and a second opinion from an orthopedist. Mr. Alexander returned a month later; his complaints were the same. Dr. Mack suggested that he keep his previously-scheduled appointments for MRIs and a second opinion.

|sOn January 23, 2006, Mr. Alexander saw Dr. Mack again and reported that he felt much better and that he was essentially pain free. Dr. Mack discharged him and instructed him to return if needed. Approximately ten days later, Mr. Alexander returned, complaining of recurrent pain and stiffness in his neck and back. MRIs of his neck and low back were performed on March 3, 2006. The MRI of Mr. Alexander’s back revealed a paracen-tral disc herniation with an annular tear at L4-5, with spinal canal stenosis, facet ar-thropathy, ligamentous hypertrophy, and a right paracentral disc herniation at L5-S1. The MRI of his neck revealed a central disc herniation, resulting in borderline spinal canal stenosis and narrowing of the spinal canal at C6-7; ventral annular bulging at C5-6; and right paracentral annular bulging at C4-5. There was spur formation at C4-5 and C5-6. Thereafter, Drs. Johnston and Weitz treated him.

Mr. Alexander’s first visit with Dr. Johnston was March 17, 2006. He complained of neck and back pain and rated his pain as six out of ten in both areas. He denied numbness, tingling, and weakness in his arms but stated he had intermittent headaches and also complained of pain radiating down his right leg to his knee, which walking aggravated. Dr. Johnston prescribed new medications, a TENS unit to stimulate the muscles in his back, and home exercise. He also ordered a nerve conduction study which was conducted on April 28, 2006. The study revealed that Mr. Alexander had a pinched nerve or SI radiculopathy going into his left leg. Dr. Johnston testified that this finding was consistent with Mr. Alexander’s lumbar MRIs and that he thought the L5-S1 disc herniation could have caused the irritated nerve root.

|4On June 16, 2006, Mr. Alexander reported significant pain in his neck and back to Dr. Johnston. Dr. Johnston recommended that he see a spine specialist because his neck pain was worse than his back pain. On August 15, 2006, Dr. Johnston gave Mr. Alexander a steroid injection in his low back, which Mr. Alexander reported as providing him significant relief for his back pain and leg symptoms.

In July 2006, Mr. Alexander first saw Dr. Weitz. He complained of neck and low back pain; he stated that his neck pain radiated into his shoulder but the pain in his low back did not radiate. On November 16, 2006, Dr. Weitz injected an epidural steroid into Mr. Alexander’s cervical spine at C6-7. Two weeks later, Mr. Alexander reported that the injection had given him tremendous relief and had reduced his neck pain from seven to two on a scale of one to ten. In June 2007, Mr. Alexander had Dr. Weitz repeat the steroid injection, which Dr. Weitz testified was not unusual. Thereafter, Mr. Alexander reported that his neck pain was better and that he had more low back pain than neck pain at that time.

Dr. Weitz testified that more probably than not Mr. Alexander’s degenerative changes of facet arthropathy and ligamen-tous hypertrophy at L4-5 existed and were asymptomatic before the accident but were made symptomatic by the August 2005 accident. She also testified that she would expect his pain to wax and wane as Mr. Alexander complained his had.

Mr. Alexander returned to Dr. Johnston in late January 2007. He reported mild discomfort in his neck and back but felt he could return to his regular activities. Dr. Johnston assigned him a 10-12% permanent impairment rating and believed he could do light to medium duty work at that time. In October 2007, Mr. Alexander saw Dr. Johnston and stated that he was improved but that he was beginning to | r,experience more neck discomfort. Dr. Johnston refilled his medications and told him to return if he did not improve. On December 21, 2007, Dr. Johnston gave Mr. Alexander a second cervical steroid injection.

On March 3, 2008, Mr. Alexander was in another automobile accident, and he returned to Dr. Johnston on April 25, 2008. Upon his return to Dr. Johnston, he rated his pain as eight on a scale of one to ten; his pain had been four on scale of one to ten in December 2007.

Mr. Alexander pursued a claim for damages he suffered as a result of the March 2008 accident, which he settled for $8,000. Issues regarding causation arose herein with regard to injuries Mr. Alexander suffered in that accident, i.e., what, if any, injuries did the second accident cause; what pain and/or limitations were attributable to his pre-existing degenerative spine conditions; and what, if any, impact did the March 2008 accident have on the injuries caused by the August 2005 accident. At trial, Mr. Alexander sought to inform the jury that he settled his claim regarding the March 2008 accident for $8,000. The defendants objected, but the trial court ruled that the evidence was admissible.

The jury returned a verdict in favor of Mr. Alexander, assessing him with 10% fault and awarding him the following damages:

Past Medical Expenses $ 20,082
Bodily Injury, Past and Future Physical and Mental Pain and Suffering, Mental Anguish, and Disability $192,000
Loss of Enjoyment of Life $ 50,000

The defendants appeal and assign four errors: (1) the trial court erred in denying the defendant’s request to exercise a peremptory challenge because there was |fino evidence or finding that the exercise of that challenge was unconstitutionally discriminatory; (2) the trial court erred in allowing Mr. Alexander to introduce evidence of the settlement amount of the claim he made regarding his March 3, 2008 automobile accident; (3) the jury’s award of $192,000 for bodily injury, past and future physical and mental pain and suffering, mental anguish, and disability is an abuse of discretion and should be reduced; and (4) the jury erred in awarding $50,000 for loss of enjoyment of life.

DISCUSSION

Batson Challenge

The defendants contend that the trial court erred in denying their request to peremptorily challenge a prospective juror, Terri Mayes Thompson. Their contention is twofold: (1) Mr. Alexander failed to establish a prima facie case of discrimination; and (2) the trial court failed to determine whether Mr. Alexander carried his burden of proving purposeful discrimination.

During the jury selection process, defense counsel attempted to exercise a peremptory challenge to exclude Ms. Thompson from the jury. Mr. Alexander and Ms. Thompson were from Jeanerette. As soon as counsel for Mr. Alexander raised a Bat-son objection, defense counsel immediately stated that he believed his challenge was legitimate because of Ms. Thompson’s knowledge of Mr. Alexander from the community, explaining: “She knows him from the community, Your Honor. I’m just a little concerned about people who know-Jeanerette, as you know, is a small community and I’m concerned about that.”

Counsel for Mr. Alexander countered that Ms. Thompson stated that she had seen Mr. Alexander around but did not know him and that she did not know any of |7his family members. Defense counsel then opined that his reason had a “race neutral basis” and was, therefore, legitimate. Mr. Alexander’s counsel responded by asking the trial court to consider that the defendants had used their other peremptory challenges primarily against African-American jurors.

During voir dire, Ms. Thompson had stated that “I don’t have any association, but I am from Jeanerette and the person that I know as the plaintiff, Mr. Donald Alexander, I’ve seen him around Jeaner-ette.” Defense counsel asked, “Would you have known his name but for today or you just knew him as somebody you had seen around?” The juror responded, “Just from when I’ve seen him. I don’t know him — personally.” She also denied knowing Mr. Alexander’s family.

The trial court noted that defense counsel had not sought to exclude Wallace Davis, another potential juror from Jean-erette who had given almost the same responses Ms. Thompson gave. In response, defense counsel explained that he wanted to back-strike Mr. Davis but was not allowed to do so. The trial court continued, finding “Ms. Thompson was pretty neutral,” and granted Mr. Alexander’s Batson challenge.

In Alex v. Rayne Concrete Service, 05-1457, 05-2344, 05-2520 (La.1/26/07), 951 So.2d 138, our supreme court restated that discrimination on the basis of race in the exercise of peremptory challenges is prohibited by the Equal Protection Clause of the United States Constitution. In State v. Snyder, 98-1078, p. 7 (La.9/6/06), 942 So.2d 484, 489, rev’d on other grounds, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (quoting Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 973-74, 163 L.Ed.2d 824 (2006)), our supreme court set forth the process established by the Supreme Court to guide courts in the examination of peremptory challenges for constitutional infirmities:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Internal quotations and citations omitted.]

From the outset, the defendants contend that Mr. Alexander’s Batson challenge fails because he did not establish a prima facie case of discrimination. This contention is without merit. The issue of whether Mr. Alexander met his burden of proof was rendered moot once defense counsel offered a race-neutral explanation for striking the challenged juror. See State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000) (citing State v. Green, 94-887, p. 25 (La.5/22/95), 655 So.2d 272, 288, where our supreme court adopted the rule set forth in Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991), which states: “Once [an opposing party] has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the [challenging party] had made a prima facie showing becomes moot.”) See also, State v. Scott, 04-1312 (La.1/19/06), 921 So.2d 904, cert. denied, 549 U.S. 858, 1275 S.Ct. 137, 166 L.Ed.2d 100 (2006); State v. Jacobs, 99-991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Hobley, 98-2460 (La.12/15/99), 752 So.2d 771, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000).

The defendants also urge that the trial court failed to perform the third step of the Batson analysis. The third step of a Batson challenge requires the trial court to assess the plausibility of the challenger’s proffered reason in light of all the evidence bearing on it. Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). The focal point of the third step of the Batson inquiry is the trial court’s assessment of the “plausibility” of the proffered race-neutral explanation based upon the challenger’s credibility and demeanor. Snyder, 942 So.2d at 490. In resolving the ultimate inquiry before it, whether the challenger’s proffered race-neutral explanation should be believed, the trial court should examine all the evidence before it. State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). Like other credibility determinations a trial court is called to make, there will seldom be much evidence on this trial court determination. Holmes v. Great Atl. & Pac. Tea Co., 622 So.2d 748 (La.App. 4 Cir.1993), writ denied, 629 So.2d 1178 (La.1993). A trial court’s determination that a party attempted to exclude a potential juror by discriminatory exercise of a peremptory challenge will not be reversed unless it is manifestly erroneous. Alex, 951 So.2d at 164 n. 10; State v. Robinson, 02-1869 (La.4/14/04), 874 So.2d 66, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004).

Contrary to the defendants’ argument, the trial court’s ruling that Ms. Thompson was neutral belies the defendants’ contention that the trial court failed to consider the credibility of their proffered race-neutral explanation. Otherwise, the Imtrial court would have simply granted the defendants’ request to peremptorily exclude Ms. Thompson.

Moreover, we cannot say that the trial court’s refusal to allow the defendants to exercise a peremptory challenge against this juror was manifestly erroneous. First, notwithstanding the defendants’ assertion to the trial court that Ms. Thompson knew Mr. Alexander, a close examination of the record shows that she had only seen him in Jeanerette and that she had “no association or connection with any of the parties.” The defendants’ more forceful assertion about Ms. Thompson’s knowledge of Mr. Alexander is simply not supported by the record. Second, the trial court specifically observed that defense counsel had not sought to exclude Mr. Wallace, another potential juror from Jeanerette who gave similar responses as those Ms. Thompson provided during voir dire examination. Likewise, our review of the record further shows that Katina Miller was another potential juror from Jean-erette who also gave similar responses as those Mr. Wallace and Ms. Thompson gave. Defense counsel did not object to Ms. Miller serving on the jury.

“Batson’s admonition to consider all relevant circumstances in addressing the question of discriminatory intent requires close scrutiny of the challenged strike[] when compared with the treatment of panel members who expressed similar views or shared similar ... backgrounds.” State v. Elie, 05-1569, p. 6 (La.7/10/06), 936 So.2d 791, 796. Defense counsel’s failure to object to Ms. Miller and Mr. Wallace belie his argument and further illuminate the trial court’s assessment of the plausibility of defense counsel’s proffered race-neutral explanation with regard to Ms. Thompson. Therefore, there is no merit to the defendants’ assignment of error.

Admission of Settlement Information

| nAfter his March 2008 accident, Mr. Alexander sought damages for injuries he sustained in the accident. He settled his claim for $8,000 and sought to introduce evidence of this settlement amount at trial to establish that he was not seriously injured in that accident. The defendants objected to introduction of the settlement amount, claiming it was irrelevant and prohibited by La.Code Evid. art. 413 which provides: “Any amount paid in settlement or by tender shall not be admitted into evidence unless the failure to make a settlement or tender is an issue in the case.” After arguments in an unrecorded sidebar conference, the trial court denied the defendants’ objection and allowed Mr. Alexander to state that he settled the claim for $8,000.

The defendants’ argue that Article 413 prohibited the admission of the settlement amount. This evidentiary ruling is subject to the manifest error standard of review. Lam v. State Farm Mut. Auto. Ins. Co., 05-1139 (La.11/29/06), 946 So.2d 133.

In support of their argument, the defendants cite Calcagno v. Gonzales, 99-287 (La.App. 5 Cir. 10/13/99), 802 So.2d 643. At issue in Calcagno was a claim by two insureds against their uninsured motorist insurer. The trial court allowed the insurer to introduce the amounts of unconditional tenders it made to the insureds prior to trial. The appellate court found that the jury’s awards of $500 for general damages to each insured and medical expenses of $1,000 or less to each insured indicated that the jury considered those tenders in arriving at its damage awards and held that the trial court erred in allowing the amount of the tenders to be made known to the jury.

Mr. Alexander argues that the amount of the settlement was relevant and admissible because the defendants made the March 2008 accident and the extent of 112the injuries he suffered therein an issue at trial. He claims that the settlement amount was relevant to establish that the March 2008 accident merely aggravated injuries he sustained in the August 2005 accident, that the aggravation resolved shortly after the accident, and that he thereafter returned to his pre-March 2008 accident condition.

Mr. Alexander urges that Article 413 should be read in conjunction with La. Code Evid. art. 408(A), which prohibits the admission of evidence concerning compromise or offers to compromise a disputed claim “to prove liability for or invalidity of the claim or its amount” but does not prohibit evidence that is otherwise admissible “merely because it is presented in the course of compromise negotiations” or when “the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” La.Code Evid. art. 408(A). As support for his claim, Mr. Alexander relies on comments the authors of the “Handbook on Louisiana Evidence Law” made regarding Article 413. Those opinions state in part:

This Article was particularly designed to protect a plaintiff in a personal injury suit from the introduction of evidence that would inform the jury of the amount plaintiff received in settlement from other alleged tortfeasors, or the amount received by other claimants in settlement of their claims against the defendant, when the purpose of such evidence is to minimize the value of plaintiffs claim, or suggests that he has already received adequate compensation.

George W. Pugh, Robert FORCE, Gerald A. Rault, Jr., and Kerry Triohe, Handbook on Louisiana Evidence Law, 410 (2008 ed.). The authors then correlate Article 413 to Article 408, explaining that while Article 408 excludes evidence of settlements for the limited purpose of “proving or disproving liability or amount thereof,” Article 413 is written in broader terms than Article 408 and that it 113“seemingly mak[es] evidence of settlements ... inadmissible for any purpose.” Id. The authors continue, however, noting: “It is believed that [Article 413] should not be given such broad scope, and where the amount paid in settlement or tender has a relevance independent of its tacitly forbidden use, it should be held admissible, subject, of course, to the balancing test of Article 403.” Id.

There is no federal rule of evidence that is comparable to Article 413, but Federal Rule of Evidence 408 is comparable to La.Code Evid. art. 408. Jurisprudence under that rule holds that settlement terms pertaining to another dispute or litigation may be admissible to assist the trier of fact in understanding the case. See Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d 1284 (6th Cir.1997); Bradbury v. Phillips Petroleum Co., 815 F.2d 1356 (10th Cir.1987).

We find the Handbook on Louisiana Evidence Law’s observations regarding Article 413 and the federal jurisprudence persuasive and conclude that the trial court did not commit manifest error when it allowed Mr. Alexander to state the amount for which he settled his claim arising out of the March 2008 accident. Clearly, the settlement of this second accident did not involve the parties to this litigation, and it was relevant as to the severity of the injuries Mr. Alexander sustained in that accident.

Damages

Recently, in Guillory v. Lee, 09-75, p. 14 (La.6/26/09), 16 So.3d 1104, 1116, the supreme court reiterated the long-held tenet that a jury has “great discretion” in assessing damages and that a jury’s assessment of damages is “a determination of fact” which is “entitled to great deference on review.” Accordingly, when reviewing general damage awards, our role is to review the trier of fact’s exercise of discretion, 114not to decide what we consider to be an appropriate award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). If there is no clear abuse of discretion in the jury’s awards, the awards must stand. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

Bodily Injury, Past and Future Physical and Mental Pain and Suffering, Mental Anguish, and Disability

The defendants argue that the jury’s award of $192,000 in general damages was an abuse of its discretion. They contend that the accident was simply an aggravation of pre-existing conditions, that Mr. Alexander had substantially recovered from his injuries caused by the August 2005 accident prior to his March 2008 accident, and that any pain and/or symptoms Mr. Alexander had after the March 2008 accident were related to his pre-existing conditions or the March 2008 accident.

The evidence establishes that before the accident, Mr. Alexander had pre-existing degenerative changes in his neck and low back. The degenerative changes in his back were asymptomatic until about seven months prior to the accident at which time the degenerative changes in his low back were symptomatic for a period of four to five months. The evidence further establishes that more likely than not the accident caused a right paracentral disc herniation at L5-S1, and a central disc herniation at C6-7 or, at the least, caused the asymptomatic degenerative changes in his neck to become symptomatic. Additionally, the evidence establishes that the pain Mr. Alexander suffered after the accident led him to have steroid injections in his low back and his neck, which successfully alleviated his pain for a period of time.

Mr. Alexander testified that the back pain he had before the August 2005 accident was not as severe or as long in duration as the pain he suffered after that accident. He further stated that the March 2008 accident aggravated the pain he 11fisuffered after the August 2005 accident but subsided after a few months and that he thereafter returned to his pre-March 2008 status.

We find no abuse of discretion in the jury’s general damage award. The jury was able to view Mr. Alexander testify and to consider his testimony in light of Drs. Mack’s, Weitz’s, and Johnston’s testimonies and the evidence that he had sought treatment for low back pain prior to the August 2005 accident. The jury heard the doctors’ opinions on causation and aggravation of pre-existing conditions, which included testimony that because Mr. Alexander did not have any complaints of neck pain before the accident, that, at a minimum, the accident caused his degenerative neck conditions to become symptomatic, and that because Mr. Alexander did not complain of pain radiating down his left leg until after the August 2005 accident, Dr. Johnston did not believe his low back herniation existed prior to that accident. Lastly, the jury apparently accepted Mr. Alexander’s testimony that the March 2008 accident aggravated the problems he had before that accident, but his symptoms and pain levels returned to the levels that existed prior to that accident. In light of the issues concerning causation and/or aggravation of pre-existing conditions, we find no abuse in the jury’s award for bodily injury, past and future physical and mental pain and suffering, mental anguish, and disability.

Loss of Enjoyment of Life

The defendants urge that the jury’s award of $50,000 for loss of enjoyment of life is excessive because Mr. Alexander’s other health problems already compromised his quality of life. “Loss of enjoyment of life ... refers to the detrimental alterations of a person’s life or lifestyle or a pei'son’s inability to participate in the activities or pleasures of life that were formerly enjoyed.” McGee v. A C & S, Inc., 05-1036, p. 3 (La.7/10/06), 933 So.2d 770, 773. Our review of the record shows a reasonable basis for the jury to determine that because the accident caused injuries, those injuries further diminished Mr. Alexander’s already limited quality of life, making his loss greater than it may have been otherwise. Therefore, we cannot say that this conclusion is unreasonable or an abuse of the jury’s great discretion in awarding damages.

DISPOSITION

The judgment of the trial court is affirmed. All costs are assessed to the defendants.

AFFIRMED.

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

      . Implicit in the discussion on the record is that the two other jurors from Jeanerette referenced by the trial court and counsel were not African-American.

      . Although the defendants have not raised an assignment of error regarding the trial court's handling of back-strikes, we note that our supreme court has held that this practice is neither constitutionally nor statutorily mandated in civil cases. Riddle v. Bickford, 00-2408 (La.5/15/01), 785 So.2d 795. "[T]he right to back-strike in civil cases is left within the sound discretion of the trial judge, who ultimately has the responsibility for orderly conduct of the trial.” Id. at 803.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Tyrone CONNER.
    No. 2009-KA-1023.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 3, 2010.

      Leon A. Cannizzaro, Jr. District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Tyrone Conner.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

lTOn remand the district judge sentenced Tyrone Conner, a quadruple offender, to twenty years at hard labor without benefit of probation, parole or suspension of sentence. Mr. Conner appeals the sentence as constitutionally excessive. For the reasons which follow, we affirm the sentence.

I

Mr. Conner was convicted by a jury of the crime of attempted burglary, a violation of La. R.S. 14:27 and 14:62. The maximum sentence for this crime is six years or one-half of the maximum length for the completed offense, which is twelve years. La. R.S. 14:27 D(3). After ordering a pre-sentence investigation and report, the district judge sentenced Mr. Conner to one year at hard labor. The district |2attorney then filed a multiple bill, alleging that Mr. Conner, having three prior felony convictions, was a quadruple offender. La. R.S. 15:529.1. The prior convictions were in 1992 for simple burglary, in 1994 for possession of crack cocaine, and in 2003 for simple robbery. After an initial evidentiary hearing, the district judge adjudicated Mr. Conner a triple offender and sentenced him to ten years at hard labor, which was less than the statutory maximum sentence. La. R.S. 15:529.1 A(l)(b)(i). At the same time that Mr. Conner appealed his conviction, the prosecution applied to this court for supervisory review of the sentencing court’s determination that it had not proven that Mr. Conner was a quadruple offender. La. Const, art. V, § 10 A and La.C.Cr.P. art. 881.2 B(l)(b). We affirmed the conviction by unanimous decision, reversed the habitual offender finding by majority decision, and the matter was remanded to the district court with instructions to sentence Mr. Conner as a quadruple offender. State v. Conner, 08-0473 (consolidated with 08-0345 (La.App. 4 Cir. 10/1/08), 996 So.3d 564 (Bonin, J., concurring in part and dissenting in part)).

At the sentencing hearing on remand, defense counsel argued that the statutory minimum sentence of twenty years without benefit of probation, parole, or suspension was excessive and urged the sentencing judge to downwardly depart on the authority of State v. Dorthey, 623 So.2d 1276 (La.1993). The Louisiana Supreme Court in Dorthey, relying in part on La. Const, art. I, § 20 (“No law shall | .-¡subject any person ... to cruel, excessive or unusual punishment.”), remanded the case,

... for its determination as to whether the minimum sentence mandated for this habitual criminal defendant by virtue of R.S. 15:529.1 for simple possession of cocaine is constitutionally excessive as applied to this particular defendant, and for appropriate sentencing.

Dorthey emphasized the judiciary’s constitutional duty to review sentences for excessiveness:

... we recognize that the review of sentencing, including sentencing under R.S. 15:529.1, is a long established function of the judicial branch. Accordingly, Louisiana’s judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). According to Sepulvado, the 1974 Louisiana Constitution, Article I, Section 20 “‘gives the courts, in the exercise of their judicial power, a basis for determining that sentences, whether fine, imprisonment or otherwise, though not cruel and unusual, are too severe as punishment for certain conduct and thus unconstitutional. It is a basis for extending the court’s control over the entire sentencing process.’ ” Id. at 766, citing “The Declaration of Rights of the Louisiana Constitution of 1974”, 35 La. L.Rev, 1, 63 (1974). Thus, “[t]he imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment ...” Id. at 767. Accordingly, under the 1974 Constitution “the excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.” Id. at 764. (emphasis added)

Dorthey, supra at 1280. If a sentence is constitutionally excessive, a sentencing judge not only has the option but “indeed the duty [ ] to reduce such sentence to one that is not.” Id.

The sentencing judge declined to consider a sentence less than the statutory minimum.

JJI

The Eighth Amendment and Louisiana Const, art. I, § 20 proscribe excessive sentences. No sentence is per se constitutional. Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). However, Mr. Allen’s sentence is presumptively constitutional. State v. Johnson, 97-1906, p. 5-6 (La.3/4/98), 709 So.2d 672, 675. Mr. Conner bears the burden of rebutting the constitutionality of the imposition of the statutory minimum sentence on him or, stated another way, of clearly and convincingly establishing the excessiveness of his sentence. Johnson, supra p. 8, 709 So.2d at 676-678; see also State v. Short, 96-2780, p. 8 (La.App. 4 Cir. 11/18/98), 725 So.2d 23, 27.

Mr. Conner’s burden under Dorthey, supra at 1280-1281, is to factually establish that the imposition of this sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime.” No evidence was introduced in the district court in support of the claim of excessiveness of sentence. While it does appear unusual that the district judge with the benefit of a pre-sen-tence report (which presumably included information about Mr. Conner’s criminal history of burglary and robbery) initially considered a sentence of one year to be appropriate, the pre-sentence report was not made a part of the record for the purposes of our review. Without |5the factual information contained in the pre-sentence repoi't, we as a reviewing court have no way of evaluating the reasonableness of the sentencing court imposing a sentence twenty times greater than the initial sentence. Moreover, there is nothing suggestive in the initial sentence from which we might infer, for example, that the sentencing judge believed that Mr. Conner’s career criminal conduct was related to an untreated drug addiction; there was surely no evidence introduced to support a factual finding that Mr. Conner required treatment for an addiction rather than twenty years in the penitentiary. Dor-they, after all, involved a quadruple offender, all of whose convictions were for simple possession of crack cocaine. Dorthey, supra at 1277.

Mere argument — unsupported by factual evidence — that a sentence is excessive is insufficient to carry the burden of proof. In the absence of an evidentiary record, there is simply nothing for this court to review on appeal. See State v. Allen, 09-813, p. 6 (La.App. 4 Cir. 1/13/10), 30 So.3d 1024, 1027, 2010 WL 117681. Here, Mr. Conner did not make a proffer of any evidence. See La.C.Cr.P. art. 881.1 D.

We conclude that Mr. Conner failed to carry his burden of establishing the exces-siveness of his sentence and, therefore, failed to overcome the presumption that the sentence imposed upon him does not violate the proscriptions of the Eighth Amendment and of La. Const, art. I, § 20.

_b.ni

The district court followed this court’s mandate to sentence Mr. Conner as a quadruple offender. Because Mr. Conner did not factually establish that the statutory minimum sentence of twenty years without the benefit of probation, parole, or suspension of sentence was excessive when imposed upon him, the district judge did not err when he did not downwardly depart and impose a lesser sentence. The sentence is affirmed.

SENTENCE AFFIRMED.

      . See La. R.S. 15:529.1 A(l)(c)(i) and La. R.S. 15:574.4 A(l).

      . The text of the statute reads, in pertinent part:
      (b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
      (i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.

      . La.C.Cr.P. art. 877 was amended by Acts 1985, No. 384, § 1, to add a third paragraph, section C, rendering the article as it reads today, in pertinent part:
      C. The presentence investigation report, edited to protect sources of confidential information, shall be made a part of the record if the defendant seeks postconviction relief only on the grounds of an excessive sentence.
      Thus, after the 1985 amendment and prior to the Louisiana Supreme Court’s decision in State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172, which precludes review of sentencing errors post conviction, article 877 effectively operated to allow a defendant to include the presentence investigation report in the record. While it appears that the legislation has simply not caught up with the jurisprudence, the inconsistency illuminates the fact that a defendant has no meaningful procedural mechanism under article 877 by which to introduce this information on direct appeal of his sentence. See also La.C.Cr.P. arts. 875 and 881.3.

      . The importance of a full evidentiary hearing in the district court on a claim of excessiveness can hardly be overstated. The only opportunity for review of the sentencing decision is on direct appeal as there is no post-conviction review available on such claim. State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172. Moreover, under State v. Thomas, 08-2912 (La. 10/16/09), 19 So.3d 466, there is no post-conviction review available for ineffective assistance of counsel at sentencing claims.