author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Jefferson DAVIS, Jr., Appellant
    No. 52,453-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019.
    LOUISIANA APPELLANT PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, RON STAMPS, CHARLES K. PARR, REBECCA EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, COX, and McCALLUM, JJ.
   MOORE, J.

A jury convicted Jefferson Davis, Jr., as charged for first degree rape, sexual battery of a victim under the age of 13, and indecent behavior with juveniles of a victim under the age of 13. The court imposed the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence on Davis for the first degree rape conviction. For the sexual battery of a victim under the age of 13, the court sentenced Davis to 30 years' imprisonment at hard labor, 25 years of which are required to be served without the benefit of parole, probation, or suspension of sentence. For his conviction for indecent behavior with juveniles of a victim under the age of 13, the court sentenced Davis to 20 years' imprisonment at hard labor, 2 years to be served without the benefit of parole, probation, or suspension of sentence. The court ordered the three sentences to be served consecutively. No motion to reconsider sentence was filed.

Davis filed this appeal alleging that the sentences imposed are unconstitutionally harsh. For the following reasons, we affirm the convictions and sentences as imposed by the trial court. We also order that the trial court minutes be amended to reflect the sentencing as imposed in the record.

FACTS

The victim in all three counts was Davis's nine-year-old grandniece, K.M. Davis was 63 years old when he committed the offenses in the spring of 2016. The molestations occurred in Davis's bedroom while he was living with his sister, K.M.'s grandmother, whose backyard abutted the backyard of K.M.'s mother's house. The child sometimes stayed at her grandmother's house when her mother, Quinnette Morris, was at work. The crimes came to light when K.M. described the sexual incidents to her older sister, S.M., who, in turn, reported them to her mother. Quinnette immediately contacted the police.

After a police investigation in which Davis admitted to sexual acts with K.M., the evidence was presented to the grand jury of Caddo Parish, which returned an indictment charging Davis with three counts: Count 1: first degree rape ( La. R.S. 14:42(A)(4) ); Count 2: sexual battery of a victim under the age of 13 ( La. R.S. 14:43.1(A)(1) & (2) ); and, Count 3: indecent behavior with juveniles under the age of 13( La. R.S. 14:81(A)(1) & (2) ). The indictment charged that all of the offenses occurred between March 15 and July 2016.

Trial by jury commenced on April 10, 2018. K.M.'s older sister, S.M., testified that on August 11, 2016 (when K.M. was nine years old), K.M. told her that "Uncle Jeff," i.e., the defendant, had licked her breasts and rubbed his "private part" against her "private part." K.M. also told S.M. that the defendant inserted his finger in her "private part," licked her "private part," and made her lick his private part. Upset by this revelation, S.M. reported it to her mother.

Quinnette Morris testified that S.M. told her about the sexual acts the defendant had performed on K.M. She questioned K.M. and confirmed what S.M. had reported to her. She said K.M. told her that sexual acts began after K.M.'s father died on February 25, 2015. According to Quinnette, the sexual abuse occurred 13-15 times in the defendant's room.

At trial, a videotaped Gingerbread House interview of K.M. was introduced into evidence (Exhibit S-1) and played for the jury. During the interview, K.M. described the sexual acts committed on her by her grand uncle. She described to the interviewer, Alex Person, how the defendant licked her private parts, sucked her breasts and made her suck his private parts and rubbed his private parts against her. K.M. also described how the defendant tried to put his private part inside her, but that she told him to stop because it hurt, and she knew it was wrong. The child said that the defendant told her that she "had to take it." K.M. said that the defendant did not fully insert his penis inside of her, but rubbed his private part against her body and "white stuff" came out. She also explained that the defendant would lick his pinky finger and make K.M. "pinky promise" that she would not tell anyone about the sexual acts.

Ms. Person testified regarding the Gingerbread House interview of K.M. The interview was held on August 15, 2016. Ms. Person showed K.M. anatomical drawings of a young girl and a grown man, so that K.M. could circle parts of the body that she identified during the interview. (Exhibit S-1). Exhibit S-2 consists of the drawings that K.M. circled the vagina, breasts, and buttocks of the naked girl to show where she had been violated, and she circled the male penis on the drawing of the man and described the sexual acts during the interview.

At trial, K.M. confirmed that she gave the interview at the Gingerbread House, and that everything she said was true. She also testified that Uncle Jeff, the defendant, was the person who committed the sexual acts.

Detective De'Andre Belle, a sex crimes investigator in the Shreveport Police Department, testified that he was assigned the case on August 12, 2016. He contacted K.M.'s mother and set up the Gingerbread House interview for K.M. and her mother on August 15, 2016. He supervised K.M.'s interview and heard the statements that K.M. made during the interview. He said that her statements were consistent with the factual statements K.M. reported that prompted the investigation, namely that her "great uncle" made her perform oral sex on him, performed oral sex on her, touched her vagina and tried to penetrate her vagina with his penis, which he said that she said, "it hurt."

Detective Belle testified that Davis voluntarily came to his office to talk about the incident and signed a Miranda rights form which was admitted in evidence as Exhibit S-4. Belle recorded the interview with Davis, which was authenticated and admitted into evidence at trial as S-5. This recording was played before the jury, after which, Det. Belle testified that the recording corroborated what K.M. had told him. In this taped interview, the defendant admitted that he licked K.M.'s vagina, sucked her breasts, tried to insert his penis in K.M.'s vagina, and that she performed oral sex on him. The defendant also admitted he masturbated with K.M. in the room.

The defense presented no evidence. The jury returned guilty verdicts on all three charges.

The defendant filed a motion for post-verdict judgment of acquittal arguing that the evidence presented by the state failed to prove beyond a reasonable doubt that the defendant committed the crimes for which he was convicted. Further, the defendant argued that the evidence failed to exclude every reasonable hypothesis of innocence, and that after viewing the evidence in the light most favorable to the prosecution, no rational finder of fact would have found the essential elements of the offenses were proven beyond a reasonable doubt.

The trial court considered the motion, and after reviewing the evidence, it disagreed with its premises and denied the motion. The trial court noted for the record that K.M.'s testimony was quite impressive.

Davis appeared for sentencing on May 8, 2018. Prior to sentencing Davis, the trial court informed Davis of the sentencing delays provided in La. C. Cr. P. art. 873, which Davis waived.

Thereafter, the court informed the defendant of the minimum and maximum sentences for each conviction. The court considered the following factors outlined in La. C. Cr. P. art. 894.1A, and of which require a sentence of imprisonment. It found that all the factors applied, namely:

(1) there is an undue risk that during a period of suspended sentence or probation the defendant will commit another crime;
(2) the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; and,
(3) a lesser sentence will deprecate the seriousness of the defendant's crime.

Next, the court considered all the factors in La. C. Cr. P. art. 894.1B, both mitigating and aggravating factors. It found four aggravating circumstances that applied to each count of conviction:

(1) the offender's conduct during the commission of the offense manifested deliberate cruelty to the victim;
(2) the offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth;
(3) the offender used his position or status to facilitate the commission of the offense; and,
(4) the offense resulted in a significant permanent injury or significant economic loss to the victim.

The court found no mitigating factors.

Thereafter, the court sentenced Davis to three terms of imprisonment on the three convictions as previously stated above, and it ordered the sentences to be served consecutively. The court stated that it ordered consecutive sentences due to the length of time of the abuse, the age of the child, and the trauma she suffered.

This appeal followed.

DISCUSSION

Davis's sole assignment of error is that the trial court erred in imposing an unconstitutionally harsh and excessive sentence. He argues that his sentence was excessive considering that he was 65 years old when he was arrested and the life sentence imposed will result in him dying in prison. Additionally, he argues that a life sentence followed by 50 years of imprisonment is an excessive sentence in violation of La. Const. art. I, § 20. Davis urges that the Louisiana Supreme Court has held that a sentence within statutory limits can be reviewed for constitutional excessiveness and that when a sentence imposes punishment that is grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering, it is unconstitutionally excessive. Davis contends that, considering the facts of the case, the sentences were excessive because they serve no purpose. Thus, he maintains that his sentences should be reversed and set aside, and the case remanded for resentencing.

A reviewing court applies a two-prong test to determine whether a sentence is excessive. First, we examine the record to determine if the trial court used the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Boehm , 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence. La. C. Cr. P. art. 894.1(C). The goal of La. C. Cr. P. art. 894.1 is an articulation of the factual basis for the sentence, not simply a mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence, resentencing is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Fontenot , 49,835 (La. App. 2 Cir. 5/27/15), 166 So.3d 1215.

The defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation are important elements to consider. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. Boehm , supra . There is no requirement that specific matters be given any particular weight at sentencing. State v. Boehm, supra .

Second, a sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Boehm , supra . A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Boehm , supra .

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Boehm, supra .

Regarding concurrent and consecutive sentences, La. C. Cr. P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

Concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences under those circumstances are not necessarily excessive. State v. Mitchell , 37,916 (La. App. 2 Cir. 3/3/04), 869 So.2d 276, writ denied , 04-0797 (La. 9/24/04), 882 So.2d 1168 ; State v. Burns , 44,937 (La. App. 2 Cir. 2/2/10), 32 So.3d 261. It is within a trial court's discretion to order sentences to run consecutively rather than concurrently. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Mitchell , supra .

After review, we find no merit in Davis's claim that his sentences for the three offenses are excessive individually or collectively.

First degree rape of a victim under the age of 13 carries a mandatory life sentence without benefits if the district attorney does not seek a capital verdict, i.e. a conviction punishable by death. La. R.S. 14:42(A)(4) and La. R.S. 14:42(D)(2)(b). Davis received the mandatory life sentence. Hence the trial court had no discretion to impose a lesser sentence than the one imposed absent exceptional circumstances that would render the statutorily required sentence constitutionally excessive. State v. Johnson , 96-3041 (La. 3/4/98), 709 So. 2d 679. Those circumstances do not exist in this case. The statute has no provision concerning the age of the offender, only the victim. In this instance, the 54-year age difference between Davis and his victim, K.M., a 9-year-old relative, renders this offense and the others even more egregious, especially considering the extended period of abuse and the age of the victim. Additionally, the fact that Davis will likely die in prison simply defines what life imprisonment constitutes. We are unaware of any sentence of life imprisonment that means something other than the natural life of the person serving the sentence. The court found several aggravating factors that clearly apply to this case. Considering the nature and depravity of the offense, the deliberate cruelty to the young victim, our sense of justice is not shocked by the life sentence. We find no abuse of discretion by the sentencing court by imposing this mandatory sentence.

Sexual battery on a victim under the age of 13 by an adult has a sentencing range of 25 years to 99 years, and the first 25 years imposed must be served without benefits. La. R.S. 14:43.1(C)(2). In Davis's case, the court sentenced him to 30 years and applied the mandatory probation, parole and suspension of sentence restrictions. Considering the sentencing range, this sentence leans toward the lesser end of the sentencing range. The same aggravating factors regarding this offense and the others apply. Arguably, had this sentence not been tacked on to the life sentence for first-degree rape, it could clearly be considered a lenient sentence given the aggravating factors and lack of any mitigating circumstances. This sentence is neither disproportionate to the offense nor does it shock our sense of justice. Accordingly, it is not excessive.

Finally, the crime of indecent behavior with juveniles on a victim under the age of 13 by an adult requires a term of imprisonment at hard labor for not less than two, nor more than 25 years. Davis received a 20-year sentence in which the first 2 years must be served without benefits. Although this is at the high end of the sentencing range, we do not find it to be excessive considering the age of the pre-pubescent victim, 9 years old, the age of Davis, 63, the family circumstances, namely Davis is K.M.'s granduncle, and the exercise of that relationship of power on an innocent victim. Considering these factors, we find no abuse of discretion, nor constitutional excessiveness.

We note that Davis particularly complains about the two consecutive sentences imposed for Counts 2 and 3 totaling 50 years of imprisonment after his life imprisonment sentence.

When it imposed the sentences and ordered that they be served consecutively, the trial court expressly considered length of time of the abuse, the age of the child, and the trauma that she has suffered as reasons for a consecutive sentence. The court stated it was particularly impressed with the victim's testimony. While the trial court noted that the victim, K.M., was uncomfortable testifying and it caused her great emotional distress to recount the events that occurred and the abuse that she endured, she was not overly emotional.

The court stated that K.M. was clear, articulate, and very convincing, and the jury and the trial court found her to be very credible. The court found that the jury's decision was well supported by the record, evidence, and testimony of all of the witnesses.

A court has discretion to impose consecutive rather than concurrent sentences. State v. Mitchell , supra ; State v. Burns , supra . Here, the trial court specifically and succinctly articulated reasons for ordering consecutive sentences, noting length of time of the abuse, the age of the child, and the trauma that she has suffered as reasons.

We find no abuse of discretion by the trial court in ordering that the sentences be served consecutively.

Accordingly, we hold that Davis's assignment that his sentences are constitutionally excessive is without merit.

Error Patent Review :

Review of the record reveals that the trial court imposed both sentences for count two and three without the benefit of parole, probation, or suspension of sentence for 25 years and 2 years, respectively. However, the minutes fail to note the restrictions of benefits.

We hereby order that the trial court minutes be amended to reflect the sentencing as imposed in the record. See State v. Shelton , 50,851 (La. App. 2 Cir. 9/28/16), 207 So.3d 549.

CONCLUSION

For the foregoing reasons, we conclude that the sentences imposed on the defendant were not constitutionally excessive. All the sentences were imposed within the sentencing ranges provided by law, and the trial court did not abuse its discretion. Accordingly, the defendant's convictions and sentences are affirmed with correction of the minutes.

AFFIRMED, ORDERED TO CORRECT MINUTES.

      Although the expressions "great uncle" and "great aunt" are commonly used to designate this degree of kinship, the correct relationship designation of a brother or sister of one's grandparent is "granduncle" or "grandaunt." See Betty Eichhorn, "Relationship Chart." Eastman's Online Genealogy Newsletter , www.blogegon.com/2015/01/20/a-relationship-chart-by-betty-eichhorn.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    Eula M. COLLINS, Plaintiff-Appellant v. Charles D. HILL, Individually, Charles D. Hill d/b/a Charles D. Hill Enterprises, and Charles D. Hill Realty, Defendants-Appellees
    No. 52,457-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019
    SMITH & NWOKORIE By: Brian G. Smith, Counsel for Appellant
    G. SCOTT MOORE, Counsel for Appellee
    Before MOORE, GARRETT, and STEPHENS, JJ.
   GARRETT, J.

The plaintiff, Eula M. Collins, appeals a decision by the trial court granting summary judgment in favor of the defendant, Charles D. Hill. The judgment dissolved a sale of immovable property, awarded Hill money deposited into the registry of the court, recognized Hill's entitlement to other funds previously paid by Collins, and terminated all rights of Collins to possession of the property. For the following reasons, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

This dispute began in April 2013, and has been in the judicial system for almost six years. It appears that at least five different judges have presided over the matter. Hill's legal position has evolved over time. To understand why the summary judgment was improperly granted, a review of the events leading up to the suit and its progress is necessary.

In March 2009, Collins entered into a rental agreement with Hill concerning a house in Sterlington, Louisiana. This arrangement changed when Hill sold the property to Collins. In October 2010, Collins and Hill executed a "Deed Subject to Mortgage" conveying title to the immovable property to Collins. The deed acknowledged receipt by Hill of a $ 5,000 payment from Collins. The deed further provided that the sale was subject to a mortgage executed by Hill in 2009, in the original amount of $ 69,893.97, with a current balance of $ 68,749.53. The deed provided that Collins was to make the mortgage payments to Hill. After buying the property, Collins claimed that she made $ 25,000 worth of improvements, in addition to other expenditures for repairs, insurance, and taxes.

For reasons disputed by the parties, on April 2, 2013, Collins deeded the property back to Hill. The recited consideration was the "return" of the property subject to the mortgage. At that time, the balance due on the mortgage executed by Hill was $ 60,538.34. Hill claimed the transaction was done to avoid foreclosure, because Collins was behind in making the mortgage payments. Collins claimed that Hill fraudulently told her there was a title problem and she needed to deed the property back to him. He would then deed it back to her when the problem was cured. According to Collins, in April 2013, soon after the allegedly fraudulent deed was executed, Hill served her with an eviction notice obtained from a justice of the peace.

On April 29, 2013, Collins instituted the present suit for breach of contract, which sought recognition of her ownership rights, damages, and attorney fees. Collins claimed that she could not be evicted from the property because she was the owner. Attached to her petition were copies of two eviction notices obtained by Hill through a justice of the peace, the 2010 deed to her, and numerous other documents.

In October 2013, Hill filed an answer and reconventional demand claiming that the business relationship with Collins began in March 2009, as a rental agreement. In October 2010, a deed subject to a mortgage was executed. In his answer, Hill maintained that Collins did not make the $ 5,000 down payment and failed to make the mortgage payments. Hill claimed that in April 2013, Collins deeded the property back to him and continued to live in the house under an oral month-to-month rental contract. In his reconventional demand, Hill demanded the past-due rent, termination of the month-to-month lease, and an order evicting Collins from the property.

On January 31, 2014, Collins filed an exception, claiming that Hill had no cause of action for eviction because she had purchased the property and was not renting it. She urged that the trial court should first determine the primary issue of ownership. Collins later filed an exception of no right of action, essentially making the same arguments raised in the first exception. In March 2014, Collins amended her petition to allege that Hill acted fraudulently in inducing her to deed the property back to him. Hill answered, denying the fraud allegations.

On April 24, 2014, the parties appeared in court and agreed to have the exceptions considered at the trial on the merits. Collins presented a check for $ 7,640, representing ten months' payments. The check, as well as future monthly payments of $ 764 per month, were ordered to be deposited into the registry of the court.

In December 2016, Hill filed an amended and supplemental reconventional demand arguing that, if Collins had occupied the property under the 2010 deed, then she had failed to pay the purchase price. Hill noted that Collins paid $ 7,640 in court in April 2014, but since that time had only paid $ 19,864. Hill contended that Collins was delinquent in the amount of $ 3,820. Hill also alleged that, if Collins possessed the property as owner, she had failed to fulfill her obligation under the agreement to pay the property taxes and insurance. According to Hill, due to Collins's failure to pay, the sale should be dissolved for nonpayment under La. C.C. art. 2561, which provides in part that, if the buyer fails to pay the price, the seller may sue for dissolution of the sale. Collins answered and denied these allegations.

In March 2017, Hill filed the instant motion for summary judgment. He first claimed that Collins breached her lease agreement. He alleged "as an alternative action" that there was a sale between the parties and urged that he was entitled to have the sale dissolved for Collins's failure to pay the consideration for the purchase of the property. Hill maintained that Collins failed to make all payments required by the deed, including insurance and property taxes.

In his affidavit, Hill contended that Collins was a lessee and was delinquent in her rent payments. He again acknowledged that Collins paid $ 7,640 in court in April 2014, that he actually received those funds, and that Collins paid $ 19,864 into the registry of the court since that time. He claimed that her payments were delinquent in the amount of $ 6,112. If she was the owner, he asserted that she also owed for property taxes and insurance for a total delinquency of $ 11,083.63, after application of all her payments made into the registry of the court. Hill acknowledged that Collins made the $ 5,000 down payment for the sale, even though in his answer and reconventional demand, he previously denied this. Hill alleged that the only dispute between the parties was whether this was a lease or a sale conditioned on payment of the mortgage. He contended that it did not matter whether there was a lease or a sale because, under either scenario, Collins breached her obligation to pay and he was entitled to relief.

In her affidavit attached to her opposition to the motion, Collins claimed that she paid insurance and taxes on the property and that she never defaulted on the payment of the original mortgage. Collins contended there was a genuine issue of material fact as to whether the agreement between the parties was a lease or a sale, noting that Hill acknowledged this dispute in his motion for summary judgment.

In his response to Collins's opposition to the motion for summary judgment, Hill contended that the delinquency for monthly payments had increased to $ 8,404. He again asserted that, whether the agreement was a lease or a sale, Collins was not entitled to possess the property, due to her failure to pay.

A hearing on the motion was held on May 11, 2017, before a judge pro tempore . At the hearing, Hill's lawyer abandoned the contention that the agreement between the parties was a lease and acknowledged that the agreement was, in fact, a sale.

Collins maintained that she paid the $ 5,000 down payment and made the payments into the registry of the court as required. However, her attorney stated that he was not sure if she made all the payments required. He argued that, if Collins was behind on the payments under the sale, the appropriate remedy would have been a foreclosure action and not the relief being sought by Hill.

Hill countered that he could not foreclose, because he was not the mortgage holder. He urged that Collins was obligated to pay the mortgage company. Because the trial court had previously ordered Collins to pay money into the registry of the court, Hill complained that this required him to pay the mortgage company. He also contended that Collins was delinquent on her payments into the registry of the court by $ 8,404. Hill asked that the sale be dissolved under La. C.C. art. 2561, that he be awarded all the money in the registry of the court, and that he be allowed to keep the $ 7,640 previously tendered.

The trial court summarily granted judgment in favor of Hill. As a result of the ruling, Hill was awarded ownership of the property and was allowed to retain all the money paid by Collins, whether before or during the lengthy pendency of the claim. Collins appealed suspensively. The appeal was later converted to a devolutive appeal. On October 24, 2017, Hill filed another rule to evict Collins, but on November 15, 2017, he informed the court that Collins had abandoned the property and a hearing on the rule would not be necessary.

SUMMARY JUDGMENT

In her appeal, Collins maintains that the trial court erred in granting Hill's motion for summary judgment without considering her exceptions in which she argued that she was the owner of the property and could not be evicted; in finding that she should be evicted from the property; and in failing to make a determination of her status as an owner or a tenant. Collins requests that this court reverse the trial court judgment and remand the matter for further proceedings. Collins essentially argues that the trial court erred in granting summary judgment in favor of Hill. We agree.

Legal Principles

Appellate courts review motions for summary judgment de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co. , 2012-2292 (La. 6/28/13), 144 So.3d 791 ; Bank of Am., N.A. v. Green , 52,044 (La. App. 2 Cir. 5/23/18), 249 So.3d 219 ; Chanler v. Jamestown Ins. Co. , 51,320 (La. App. 2 Cir. 5/17/17), 223 So.3d 614, writ denied , 2017-01251 (La. 10/27/17), 228 So.3d 1230.

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002. The procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2).

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3) ; Chanler v. Jamestown Ins. Co. , supra .

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Jackson v. City of New Orleans , 2012-2742 (La. 1/28/14), 144 So.3d 876, cert. denied , --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014). In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Chanler v. Jamestown Ins. Co. , supra .

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1) ; Bank of Am., N.A. v. Green , supra.

Discussion

Neither party seemed to have a firm grasp on the issues presented in this case. The issues and theories of recovery evolved and shifted constantly during the lengthy period of time that this case has been pending. The judgment signed by the trial court completely short-circuited the procedures required by the Louisiana Civil Code if dissolution is ultimately determined to be the appropriate remedy. In the trial court, Collins argued that there was a dispute created by Hill as to whether the agreement between the parties was a lease or a sale. When Hill filed his motion for summary judgment, he acknowledged that there was a dispute as to whether the agreement between the parties was a lease or a sale. He contended that this was not a material issue of fact because, if Collins had failed to pay her obligation, under either scenario, the result would be essentially the same. Either the sale would be dissolved or Collins would be evicted. Hill also asserted that, in either instance, he would be entitled to receive the money paid into the registry of the court.

When the parties appeared in court for the hearing on the motion for summary judgment, Hill's attorney abandoned his client's original position that this was a lease dispute. Instead, Hill's attorney admitted that the agreement was a sale. Hill's lawyer said:

I'd stipulate that the sale - the sale that occurred on April 10, 2010, is a valid sale. It's still a sale and I say she's breached her obligation of consideration of payment under that sale and therefore, 2561. I - that's the confusion. I don't care if it's an eviction, whatever. I'll say - I'll say it's a sale. I'll agree with him. It is a sale. Therefore, you have breached your obligation of payment of the consideration of that sale, therefore, 2561. I'll say it's a sale right here in this hearing. It is a sale. And we'll go from there.

At that point, the dispute about whether the agreement was a sale or a lease was ended. Hill's lawyer never argued that the subsequent transfer of the property from Collins to Hill in 2013 was valid.

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. La. C.C. art. 1853. Bank of Am., N.A. v. Green , supra. A judicial admission or confession is a party's express acknowledgment of the correctness of the fact or the act charged against him by his adversary. Such a confession is designed to dispense with evidence and has the effect of withdrawing the subject matter of the confession from issue. Luquette v. Allstate Ins. (Indem.) Co. , 50,177 (La. App. 2 Cir. 8/12/15), 174 So.3d 736, writ denied , 2015-1641 (La. 10/30/15), 180 So.3d 300.

A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. La. C.C. art. 1853 ; Wilkerson v. Wilkerson , 42,324 (La. App. 2 Cir. 8/15/07), 962 So.2d 1137 ; Cash Point Plantation Equestrian Ctr., Inc. v. Shelton , 40,647 (La. App. 2 Cir. 1/25/06), 920 So.2d 974. A declaration made by a party's attorney or mandatary has the same effect as one made by the party himself. La. C.C. art. 1853, Revision Comment (b); C.T. Traina Inc. v. Sunshine Plaza Inc., 2003-1003 (La. 12/3/03), 861 So.2d 156 ; Anderson v. Houston , 44,766 (La. App. 2 Cir. 9/23/09), 22 So.3d 1029 ; Murphy v. Kavanaugh , 41,541 (La. App. 2 Cir. 9/27/06), 940 So.2d 693. The attorney's response to questioning by the court may also constitute a judicial confession. Anderson v. Houston, supra .

Even after the judicial confession, in her assignments of error, Collins argued that the trial court erred in considering and ruling on Hill's motion for summary judgment without first ruling on her exceptions. Collins contended that Hill had no cause or right of action for eviction because she owned the property and was not leasing it. Her other assignments of error were also related to the issue of whether the agreement between the parties was a sale or a lease. She argued that the trial court erred in failing to determine whether she was an owner or a tenant, and erred in ordering that she be evicted from the property because, as an owner, she could not be evicted. Because Hill's attorney judicially confessed that the agreement was a valid sale, there was no issue to be decided regarding whether the agreement was a lease or a sale.

This does not end the inquiry. The record shows that, in spite of this judicial admission, there were numerous disputed issues of material fact precluding summary judgment. These issues include whether Collins had failed to pay; whether Collins was entitled to recover some or all of the money she had paid, including her claim for improvements made to the property; whether Hill was entitled to an offset for the fair rental value of the property while Collins possessed it; and whether Collins should be granted more time to pay. Under La. C.C.P. art. 2164, this court is required to render any judgment which is just, legal, and proper. Because of the numerous genuine issues of material fact presented in this matter, together with unresolved legal issues, we are compelled to find the trial court erred in granting summary judgment in favor of Hill.

Failure to Pay

In order to dissolve the sale, Hill was required to show that Collins had not paid the price. He claimed that she admitted she had not paid the price. The record does not support this claim, which was largely based upon an equivocal statement by Collins's attorney that he did not know if his client was behind in her payments. The record shows that Hill eventually admitted that Collins made the substantial $ 5,000 payment described in the 2010 deed. In her affidavit attached to her opposition to the motion for summary judgment, Collins claimed that she paid insurance and taxes on the property and that she never defaulted on the payment of the original mortgage. Collins stated in her response:

The plaintiff attests that she was current in all payments up to her last payment, to the Court, of $ 19,864.00.
The plaintiff has since become aware that the Court Order has not been followed and Mr. Hill has possession of monies that have been ordered paid into the Court.
The plaintiff has the mortgage payments.

Hill presented nothing more than an affidavit setting forth amounts he claimed had not been paid. Collins filed an affidavit stating that she made all payments due and that she had the money to pay the mortgage. Therefore, whether Collins had, in fact, failed to make the payments required of her under the sale was a genuine issue of material fact precluding the grant of summary judgment.

Remedy

If Hill is able to prove entitlement to dissolution of the sale, the remedy for dissolution is complex and raises genuine issues of material fact that, in this case, preclude the grant of summary judgment.

Regarding sales, the buyer is bound to pay the price and to take delivery of the thing. La. C.C. art. 2549. Payment of the price is due at the time and place stipulated in the contract, or at the time and place of delivery if the contract contains no such stipulation. La. C.C. art. 2550 ; Stroope v. Smith , 50,685 (La. App. 2 Cir. 5/18/16), 199 So.3d 612. While he originally claimed that the status of the parties was lessor/lessee, Hill later sought to dissolve the sale under La. C.C. art. 2561, which provides:

If the buyer fails to pay the price, the seller may sue for dissolution of the sale. If the seller has given credit for the price and transfers that credit to another person, the right of dissolution is transferred together with the credit. In case of multiple credit holders all must join in the suit for dissolution, but if any credit holder refuses to join, the others may subrogate themselves to his right by paying the amount due to him.
If a promissory note or other instrument has been given for the price, the right to dissolution prescribes at the same time and in the same period as the note or other instrument.

Revision Comment (c) to La. C.C. art. 2561 states that, after perfection of the sale, where the buyer fails to pay the price, the seller may either sue for payment of the price or for dissolution under this article. If there is a judicial dissolution of the sale, the property is restored to the seller and the buyer is discharged from his obligation to pay the price. If the buyer has paid a part of the price, he is entitled to have that part returned to him. Sliman v. McBee , 311 So.2d 248 (La. 1975) ; Stroope v. Smith , supra ; White v. Crook , 426 So.2d 334 (La. App. 2 Cir. 1983).

Louisiana law affords a unique remedy to the uncompensated seller. Until the buyer has paid the purchase price of the property, he holds a defeasible title only, which can be successfully attacked and divested from him by a judicially-declared dissolution of the sale, and to the prejudice of rights acquired through the purchase by third parties. United States v. Maniscalco , 523 F.Supp. 1338 (E.D. La. 1981).

The seller's right to dissolve the sale for the buyer's failure to pay the purchase price under La. C. C. art. 2561 is an entirely separate and independent remedy from the right of the seller to sue for any amount due on the purchase price. Toler v. Toler , 337 So.2d 666 (La. App. 3 Cir. 1976) ; Morgan v. Pardue , 2016-667 (La. App. 3 Cir. 12/7/16), 206 So.3d 280, writ denied , 2017-0332 (La. 4/7/17), 218 So.3d 114.

The effect of a successful dissolution action brought under La. C.C. art. 2561 is annulment of the initial sale and return of the property free and clear of all encumbrances not placed thereon by the seller. Sliman v. McBee , supra ; United States v. Maniscalco , supra . The effect of the dissolution is to place all the parties in the same position they occupied prior to the sale. See Sliman v. McBee , supra ; Robertson v. Buoni , 504 So.2d 860 (La. 1987) ; Hollanger v. Hollanger Rice Farms, Inc. , 445 So.2d 117 (La. App. 2 Cir. 1984), writ denied , 449 So.2d 1028 (La. 1984).

When the seller dissolves the sale for nonpayment of the price, he must return to the buyer all money received from him, with interest. In addition, the seller must pay for the improvements made upon the property by the buyer. Dian Tooley-Knoblett and David Gruning, Sales , § 15:22 in 24 Louisiana Civil Law Treatise (2012). See also Cappel v. Hundley , 168 La. 15, 121 So. 176 (1929).

The principal amount due on Hill's mortgage when the 2010 deed was executed was $ 68,749.53. The 2013 deed indicates that the balance had been reduced to $ 60,538.34, which reflects that payments had been made. The record shows that Collins made a $ 5,000 cash payment on the property in 2010, and more than $ 35,000 in additional payments. Together with the $ 5,000 payment, it appears that Collins spent more than $ 40,000 toward the purchase of the property. She also claimed that she made improvements to the property worth $ 25,000. If facts are established which would allow the sale to be dissolved under La. C.C. art. 2561, Collins might be entitled to recovery of some or all of the amounts she made for the purchase of the property and for improvements, with interest.

Under the jurisprudence, it is clear that the defendant, whether the original vendee or a subsequent vendee, in an action for dissolution of the sale, is accountable to the vendor for the fair rental value of the property during defendant's possession. Groner Apartments v. Controlled Bldg. Sys. , 432 So.2d 1142 (La. App. 3 Cir. 1983), writ denied , 438 So.2d 1106 (La.1983).

Hill might be entitled to the fair rental value of the property while Collins possessed it. Resolution of all these complex accounting issues would require rulings on genuine issues of material fact. The ruling by the trial court completely bypassed the procedures required by the law.

Extension of Time to Pay

If Collins is behind in her payments, and if proper facts are established, the trial court also has discretion to allow Collins more time to make the payments. La. C.C. art. 2562 states:

When an action is brought for the dissolution of the sale of an immovable and there is no danger that the seller may lose the price and the thing, the court, according to the circumstances, may grant the buyer an extension of time, not in excess of sixty days, to make payment, and shall pronounce the sale dissolved if the buyer fails to pay within that time. When there is such a danger, the court may not grant the buyer an extension of time for payment.

As observed in Bailey v. Wadley , 185 So. 466 (La. App. 2 Cir. 1938), the immediate dissolution of a sale for nonpayment of the price is only awarded when there is danger that the seller may lose the price and the thing also. In the absence of such danger, the law tempers the rigidity of the rule and allows the court the right to grant the purchaser additional time in which to meet his obligation. Under La. C.C. art. 2562, if dissolution of a sale is warranted, and if there is no danger that the seller will lose the thing and the price, the trial court has discretion to allow the buyer up to 60 days to make the payment. In this case, the determination of whether to allow Collins up to 60 days to pay would involve a factual determination, which cannot be decided on a motion for summary judgment.

The record demonstrates Hill failed to carry his burden of establishing entitlement to dissolution of the sale and summary judgment. The trial court clearly erred in granting summary judgment in Hill's favor; awarding him all the money deposited into the registry of the court, together with all the funds that were remitted directly to Hill; and ordering that Collins was not entitled to possession of the property. We reverse the trial court judgment and remand to the trial court for further proceedings.

CONCLUSION

For the reasons stated above, we reverse and vacate the trial court ruling granting summary judgment in favor of the defendant, Charles D. Hill. The matter is remanded to the trial court for further proceedings. Costs in this court are assessed to the defendant, Charles D. Hill.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

      We note that the summary judgment in this matter was rendered in favor of Charles D. Hill only. The business entities listed in the original petition were not mentioned.

      In connection with his motion for summary judgment filed in March 2017, Hill listed material facts he contended were not in dispute. Interestingly, he stated that the check for $ 7,640 was not deposited into the registry of the court, as ordered by the court, but was given directly to Hill by the attorney representing him at the time. Hill retained possession of the money.

      The 2010 deed provided that the mortgage payments were to be paid by Collins to the transferor, which was Hill. Presumably, Hill was responsible for paying the mortgage company.

      The sale was actually executed on October 18, 2010. The record fails to show that any agreement between the parties was executed on April 10, 2010.


author: Judge Edwin A. Lombard

text:
    Athena ANTIPPAS v. NOLA HOTEL GROUP, LLC, et al.
    Athena Antippas v. Nola Hotel Group, LLC, et al
    Athena Antippas v. Nola Hotel Group, LLC, et al
    NO. 2017-CA-0798 NO. 2018-CA-0397 NO. 2018-CA-0468
    Court of Appeal of Louisiana, Fourth Circuit.
    February 27, 2019
    Galen M. HairDavid P. VicknairJennifer J. GreeneKassie L. Richbourg Sarah Kalis SCOTT VICKNAIR HAIR & CHECKI, LLC 909 Poydras Street, Suite 1100 New Orleans, LA 70112 COUNSEL FOR PLAINTIFF/APPELLANT
    Ryan M. Malone Jade M. Wandell DUPLASS, ZWAIN, BOURGEOIS, PFISTER, WEINSTOCK & BOGART, APLC 3838 North Causeway BLVD., Suite 2900 Metairie, LA 70002 COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Edwin A. Lombard

Before the Court in these consolidated cases are the cross-appeals of Plaintiff Athena Antippas and the Defendants, Damon Young and Parking Management Services, who seek review of an August 2, 2017 district court judgment, conforming to a jury verdict rendered on June 28, 2017. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the district court, finding no abuse of discretion.

Facts and Procedural History

This is a bicycle-automobile collision case. Ms. Antippas avers that on the afternoon of August 10, 2014, she was cycling on Burgundy Street, in the French Quarter, with three to four feet of space between both her and the parked cars on the right side of the road as well as the passing vehicular traffic to her left. Cycling with the flow of traffic, Ms. Antippas was struck by a car door that valet Damon Young had partially opened in front of the Hotel St. Pierre. Ms. Antippas testified that she was thrown to the ground upon impact and was helped up by Mr. Young, who apologized to her. Ms. Antippas sustained several injuries, including to her cervical and lumber spine, sacroiliac joints and her right hand, which is her dominant hand. Ms. Antippas testified to these facts at trial, which were stipulated to by the parties.

In 2015, Ms. Antippas filed suit against a number of defendants, including Mr. Young and Parking Management Services. At the time of trial, in June 2017, only Mr. Young and Parking Management Services (collectively referred to as "the Defendants") remained as the Defendants.

A three-day jury trial was held in June 2017, during which four witnesses testified: Ms. Antippas; her orthopedic surgeon, Dr. Marco Rodriguez; Louis Miller, the Parking Management Services manager; and Douglas Robert, a liability expert. The jury ultimately rendered a verdict finding Ms. Antippas 30% at fault and the Defendants 70% at fault for the accident. The jury awarded Ms. Antippas:

Past Medical Expenses - $ 15,000
Future Medical Expenses - $ 100,000
Past Physical Pain and Suffering - $ 10,000
Future Physical Pain and Suffering - $ 10,000
Past and Future Mental Anguish -$ 5,000
Past and Future Emotional Distress- $ 5,000
Past and Future Loss of Enjoyment of Life - $ 5,000

Thus, her award of $ 150,000 was reduced by $ 45,000, due to her percentage of fault, totaling $ 105,000. The trial court signed a judgment, conforming to the jury verdict, on August 2, 2017. Ms. Antippas later timely appealed this judgment.

Thereafter, the Defendants filed a Motion for Judgment Notwithstanding the Verdict, which the district court denied. Both parties then appealed the district court's August 2017 judgment.

Assignments of Error

On appeal, Ms. Antippas asserts that the jury erred in apportioning her any fault. Moreover, both parties, in their respective appeals, challenge the propriety of the jury's award of past and future medical expenses. Lastly, Ms. Antippas challenges the amount of general damages awarded to her. Below we address the jury's:

• Allocation of fault;
• award of past and future medical expenses; and
• award of general damages.

Allocation of Fault

The jury allocated Ms. Antippas 30% of the fault for the accident at issue. Ms. Antippas maintains that the jury erred for two reasons. First, she asserts she did not deviate from the statutory degree of care required for bicyclists under La. Rev. Stat. 32:197. Second, she maintains that the undisputed facts fail to show any fault on her part to be apportioned, especially considering that the Defendants stipulated to her version of the facts at trial and failed to present testimony or evidence demonstrating that she was partially at fault. While the parties did so stipulate, we find that a reasonable factual basis exists to support the jury's determination that Ms. Antippas was partially at fault for her injuries.

Allocations of fault are factual determinations, which are not to be disturbed by appellate courts in absence of manifest error or unless a particular finding of fact was "clearly wrong." Aetna Life and Casualty Company v. Solloway, 25,462 (La.App.2d Cir. 1/19/94), 630 So.2d 1353, 1356 ; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Allocation of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range. Allocations of fault within such a range cannot be clearly wrong.

Foley v. Entergy Louisiana, Inc. , 06-0983, p. 32 (La. 11/29/06), 946 So.2d 144, 166 [citations omitted].

The jury, in the instant matter, was presented with testimony from Ms. Antippas that she was traveling equidistant from the passing vehicular traffic to her left and the parked cars to her right, when Mr. Young partially opened a car door into her from her right side. The streets in the French Quarter, according to Mr. Douglas' testimony, are narrower than average streets, measuring 22 feet wide. He further testified that a car door's length, at most, is three feet. Ms. Antippas testified that she was cycling three to four feet away from the parked cars.

It was also established at trial that bicyclists, such as Ms. Antippas, have a statutory duty to travel nearer to the right side of the street. "Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction." La. Rev. Stat. 32:197(A) ; Guillot v. Valley Forge Ins. Co., 99-1044, p. 4 (La. App. 3 Cir. 12/8/99), 753 So.2d 891, 894. Bicyclists are also subject to the same duties applicable to drivers of motor vehicles, including the duty to keep a proper lookout at all times. La. Rev. Stat. 32:194 ; Clement v. State Department of Transportation and Development, 528 So.2d 176, 180 (La.App. 1st Cir. 1988).

Ms. Antippas relies upon the Supreme Court's holding that "the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, where the record indicates no sound reason for its rejection." Robertson v. Scanio Produce & Inst. Foods, Inc. , 449 So.2d 459 (La.1984). However, the jurors may have found sound reason for rejection of Ms. Antippas' assertion that she was not at fault based upon her own testimony. Additionally, the jurors had the freedom to "believe in whole or part the testimony of any witness." Pennison v. Carrol , 14-1098, p. 12 (La. App. 1 Cir. 4/24/15), 167 So.3d 1065, 1076.

The jury in this matter clearly determined that Mr. Young failed in his duty to perceive Ms. Antippas' presence. Nevertheless, the jurors could have reasonably concluded that, despite her testimony, Ms. Antippas was travelling nearer toward the right side of the street than she claimed in order for this accident to have occurred. Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State of Louisiana, through the Department of Transportation and Development , 617 So.2d 880, 883 (La.1993). Also, while the parties stipulated to the facts, they did not stipulate to fault, which was within the jury's discretion to determine. Finding that the apportionment of fault is not manifestly erroneous or clearly wrong, we uphold the jury's 30% apportionment of fault to Ms. Antippas.

Damages

As stated above, both parties contest the jury's awards of $ 15,000 in past medical expenses and $ 100,000 in future medical expenses.

Ms. Antippas asserts that the jury abused its discretion in awarding past and future medical expenses, which she asserts should be increased to $ 32,812.29 and $ 158,700, respectively. In contrast, the Defendants aver that the jury erroneously awarded past and future medical expenses for two reasons: 1.) the past and future medical expenses awarded for the alleged injuries of to Ms. Antippas' neck, back, and hips were made in error because she failed to meet her burden of proving these were causally related to the accident; and 2.) the future medical expenses awarded for her hand injury were unsubstantiated due to her alleged failure to establish future medical expenses to a reasonable degree of certainty.

Ms. Antippas was also awarded $ 35,000 in general damages, which she asserts on appeal should be increased to $ 550,000.

Having examined the propriety of each of the aforementioned awards and assessing whether the jury abused its discretion, we conclude that the jury did not abuse its discretion. We discuss each of these awards in turn.

Past Medical Damages

A jury's determination of special damages is entitled to great deference. In order to disturb the jury's award of special damages or to reverse its refusal to award an element of special damages, there must be no factual basis for the jury's determination and the finding must be clearly wrong. See Kaiser v. Hardin , 06-2092, p. 12 (La. 4/11/07), 953 So.2d 802, 810.

A plaintiff bears the burden of proving that his or her injuries are causally related to an accident in order to recover past medical expenses by a preponderance of the evidence. Yohn v. Brandon , 01-1896, p. 6 (La.App. 1 Cir. 9/27/02), 835 So.2d 580, 584 ; Am. Motorist Ins. Co. v. Am. Rent-All, Inc., 579 So.2d 429, 433 (La. 1991). The test to determine if that burden has been met is whether the plaintiff has established through medical testimony that it is more probable than not that the injuries were caused by the accident. Yohn , 01-1896, p. 6, 835 So.2d at 584. "In the absence of bad faith, it is error for the trier of fact to fail to award the full amount of medical expenses that are proven by a preponderance of the evidence that were incurred as a result of an accident." Boxie v. Smith-Ruffin , 07-264, p. 13 (La. App. 5 Cir. 2/6/08), 979 So.2d 539, 548 [citations omitted]. Moreover, plaintiffs who have incurred medical expenses in good faith and evidenced by a bill may recover for said expenses even under circumstances when such treatment could be viewed as unnecessary. Watson v. Hicks , 15-0046, pp. 25-26 (La.App. 4 Cir. 5/27/15), 172 So.3d 655, 675.

A review of this matter, therefore, turns upon the testimony of both Ms. Antippas and Dr. Rodriguez, who was the sole source of medical testimony at trial.

Ms. Antippas

Prior to this accident, Ms. Antippas admitted to suffering from right wrist pain and a June 2014 workout injury where she pulled a muscle. According to her, the pain she experienced before the crash was short term and had resolved prior to the accident at issue.

Ms. Antippas testified that as a result of the accident she sustained several injuries, including the following:

• Disc herniation and annulus tear at the 5/6 and 6/7 levels
• Disc bulges on the lumbar spine at the L-5/S-1 level
• numbness and loss of range of motion in her right long (trigger) finger
• Sacroiliac joint injury and sacroiliitis
• Lumbar and cervical strain
• Inflammation
• Radiating pain from left hip down left leg
• Gluteal muscle pain
• Hip and tailbone pain

Explaining that her life has not been the same since the accident, Ms. Antippas related that she feels physically weaker than she did prior to the collision and is unable to be as active as she once was. She testified that in the three years following the accident she treated with several medical providers, including chiropractors, an orthopedic surgeon, and physical therapists, seeking relief for her injuries. She continues to suffer with ailments in her spine, hips, legs and right hand.

She testified to receiving an injection in her right hand, which did not relieve her pain, causing her to opt for surgery. The surgery, however, was unsuccessful as it did not completely resolve her issues. She explained that she continues to have a limited range of motion, pain and difficulty performing fine motor functions, such as making her bed and washing dishes. She stated that she may have to have another hand surgery. She further testified that she experiences discomfort with sleeping, as well as walking and sitting for long periods. Lastly, Ms. Antippas explained that while plagued by depression since her youth, she has continued to suffer from depression stemming from the sadness she feels in the change in her life.

Dr. Rodriguez

Dr. Rodriguez was accepted by the trial court as an expert in orthopedic surgery. He testified that he prepared for trial by: reviewing Ms. Antippas' MRIs dated January 2015 and May 2016; meeting with the physician who treated Ms. Antippas' hand, Dr. Eric George; and reviewing Ms. Antippas' medical records, physical therapy and chiropractic records, with the exception of some medical records from Hong Kong related to treatment for her right hand. Dr. Rodriguez testified that Ms. Antippas has continued to receive treatment for her injuries since the day of the accident at issue.

Opining on direct examination that Ms. Antippas suffered injuries to her right hand, cervical and lumbar spine, as well as to her sacrum or sacroiliac joint, Dr. Rodriguez noted that she complained of neck and back pain with radiation into the left buttocks and hip, as well as issues with her right hand, when she initially presented to him for treatment in May 2016. He explained that this visit occurred prior to Ms. Antippas' relocation to Hong Kong for work and that he did not see her again until just prior to trial. According to Dr. Rodriguez, the aforementioned injuries were more probably than not related to the bicycle accident. He further concluded that Ms. Antippas will have to deal with pain for the rest of her life and further that all of her injuries will affect her daily activities for the rest of her life.

Dr. Rodriguez admitted that he did not treat Ms. Antippas for her hand injury. Ms. Antippas, he related, injured her right long or trigger finger, specifically that tendon in her hand was damaged or inflamed causing her coordination, function and stiffness issues. Dr. George initially treated her injury by giving her a hand injection, which was followed by hand surgery to release the pulley connected to the damaged tendon and improve her range of motion. The surgery was unsuccessful; therefore, she received another injection. However, Dr. Rodriguez explained that she still lacks hand function and recommended she undergo a tenolysis procedure. Dr. Rodriguez guessed this procedure would cost a minimum of a $ 30,000 because it is a hospital procedure.

He further testified that he performed a plain x-ray of her cervical spine, which are the top seven bones in the neck. She was diagnosed as having annulus tears at the 5/6 and 6/7 levels on her cervical spine. Dr. Rodriguez recommended cervical epidurals or steroid injections for treatment. He further testified that her cervical spine is prone to re-injury with two disk herniations with tears for the rest of her life.

Regarding her lumbar spine, Dr. Rodriguez explained that Ms. Antippas has a bulging disk at the L-5/S-1 level. He testified that lumbar spine pain can cause every movement to bother someone, such as bending at the waist, pain with sitting because the disks are more loaded when we sit. Ms. Antippas, he stated, had a facet injection at the L-5/S-1 level in Hong Kong, but the procedure was unsuccessful. He testified that her sciatica pain, sacroiliac pain and lower facet joints on the right side combined are causing pain in her lower back, buttocks and lateral hip.

His review of the chiropractic and physical therapy records of Ms. Antippas indicated back pain and treatment for her lumbar spine injuries. He further testified that her lumbar spine injuries were the source of her buttocks and low back pain, specifically her gluteal muscle pain, sciatic nerve pain and sacroiliac pain, causing pain to radiate on the side of her legs, buttocks, and where her pelvis meets the sacrum. He recommended a medial branch blocking injection to treat her injury at the L-5/S-1 level of her lumbar spine, which would cost $ 3,500. He further testified that more probably than not she would need a surgical endoscopic rhizotomy at the L-5/S-1 level, costing $ 40,000.

Regarding Ms. Antippas sacroiliac joint damage and diagnosis of sacroiliitis, Dr. Rodriguez also opined that Ms. Antippas will have inflammation and pain in the sacrum, the portion of the spine that is in the pelvis, for the rest of her life. Ms. Antippas complained to him of pain in the sacrum and the upper buttocks and lower back radiating around the hip. He identified the cause of her pain as facet joint, disk bulge and nerve irritation and sacroiliac pain. He recommended a sacroiliac joint injection with therapy as treatment. The injection would cost $ 3,000 and can be repeated up to three times a year. Her sacroiliac injury injection, according to Dr. Rodriguez, will require more than one round annually or biannually with therapy for the rest of her life. He further testified that there is possibly a combination of the facet joint and sacroiliac joint causing her left side and hip pain as well as her buttocks pain.

On cross-examination, Dr. Rodriguez was presented with medical records for Ms. Antippas from chiropractor Dr. Theresa Harris dating from March 2014 to August 2014, which he had not reviewed prior to trial. Dr. Harris treated Ms. Antippas before and after the bicycle collision. Based upon his review of those records at trial, Dr. Rodriguez reasoned that the symptoms Ms. Antippas reported before and after the bike accident were similar in the neck, back and hip. Significantly, he noted that those records, showed that Ms. Antippas was suffering from neck, right shoulder, mid-back and bilateral hip pain just weeks prior to the bicycle accident, and that she had been diagnosed with cervical thoracic and lumbar segmental dysfunction, hip, TMJ pain, headaches and right wrist issues. He further testified that Ms. Antippas could have been suffering from a cervical herniation or shoulder issue prior to the bicycle accident.

Lastly, on re-direct, Dr. Rodriguez explained that the post-accident MRIs of Ms. Antippas showed that she had two herniated discs with annulus tears on her cervical spine at the 5/6 and 6/7 levels and disc bulges at the L5-S1 level on her lumbar spine. He testified that prior to the accident at issue there were no MRIs of her cervical and lumber spine. He also testified that her medical records prior to the crash did not show a diagnosis of inflammation of sacroiliac joints.

Analysis

In the instant matter, the record reveals no allegations or evidence introduced at trial of bad faith on Ms. Antippas' part in receiving medical treatment. Moreover, although the Defendants established at trial that Ms. Antippas suffered from preexisting injuries to her neck, hips and back, Dr. Rodriguez opined that her injuries to those areas were related to and exacerbated by the bicycle collision, and, in addition to her hand injury, were causally linked to the bicycle accident. Any preexisting conditions that Ms. Antippas may have suffered from do not serve to bar her from recovery where she has established that she sustained more injuries.

Having weighed the credibility of the witnesses as well as the conflicting evidence and testimony, the jury clearly found that some of Ms. Antippas injuries and resulting pain were not caused by the accident at issue. We note that with regard to Ms. Antippas' testimony, the jury was not required to fully accept her perception of the degree and magnitude of her injuries. See Phiratsamy v. Pipes , 27,209, p. 4 (La.App.2d Cir. 8/23/95), 660 So.2d 172, 175. There was more than one permissible view of the evidence relating to the nature and causation of the claimed injuries under the facts presented, including that Ms. Antippas had preexisting neck, back and hip conditions prior to being hurt in the accident at issue. Moreover, we note that because defendants take their victims as they are found, defendants are responsible for all natural and probable consequences of their tortious actions. Bryan v. City of New Orleans , 98-1263, pp. 3-4 (La. 1/20/99), 737 So.2d 696, 698.

The $ 15,000 past medical expenses award under these circumstances is consistent with a finding that Ms. Antippas was injured in the accident at issue, but was not entitled to recover all of her requested expenses. In light of this, we cannot disturb the jury's award because it is supported by the record. Thus, we find both the assignments of error of Ms. Antippas and the Defendants, respectively, to be without merit.

Future Medical Expenses

Unlike past medical expenses which can be verified by both bills and testimony, future medical expense awards are "in great measure highly speculative and not susceptible to calculation with mathematical certainty." Menard v. Lafayette Ins. Co., 09-1869, p. 13 (La. 3/16/10), 31 So.3d 996, 1006. A plaintiff is required to establish that future expenses will, more probably than not, be medically necessary. Id. Future medical expenses must be established with some degree of certainty, including supporting medical testimony and estimations of the probable cost of the medical expenses. Duncan v. Kansas City S. Ry. Co. , 00-0066, p. 17 (La. 10/30/00), 773 So.2d 670, 685. However, the effect and weight to be given medical expert testimony is within the broad discretion of the fact finder, who may accept or reject, in whole or in part, the opinions expressed by an expert. Yohn , 01-1896 at p. 7, 835 So.2d at 584 ; Harris v. State, Department of Transportation and Development , 07-1566, p. 25 (La.App. 1 Cir. 11/10/08), 997 So.2d 849, 866.

In the matter sub judice , as stated above, the jury was presented with medical testimony solely from Dr. Rodriguez. He testified that Ms. Antippas would need future medial branch blocks treatments for her spine for the rest of her life, physical therapy, surgical endoscopic rhizotomy and sacroiliac joint injections bi-annually for the rest of her life as well as another hand surgery and hand therapy. The jury clearly found his testimony compelling as it awarded Ms. Antippas $ 100,000 in damages.

The Defendants argue on appeal that because Dr. Rodriguez guessed as to the cost of Ms. Antippas' future hand procedures, at $ 30,000, that her award should be reduced by this allegedly excessive amount. However, the record provides no insight as to whether the jurors actually opted to compensate Ms. Antippas based upon his estimate.

Moreover, given the highly speculative nature of future medical expenses and the vast discretion afforded to the jury, we cannot say that the amount awarded is unreasonable or disproportionate, as Ms. Antippas asserts, nor excessive, as the Defendant's maintain. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence, most favorable to the plaintiff, which reasonably could have been made by the trier of fact. Locke v. Young , 42,703, p. 18 (La. App. 2 Cir. 12/12/07), 973 So.2d 831, 843 (citing Manuel v. State Farm Mutual Automobile Company , 30,765 (La.App.2d Cir. 8/19/98), 717 So.2d 277 ). Based upon Dr. Rodriguez's testimony as to the various procedures and therapy Ms. Antippas will need in the future, we find that this award is supported by the record and, therefore, not excessive, when viewed in the light most favorable to Ms. Antippas. Therefore we find the respective assignments of error of the parties to be without merit.

General Damages

As previously noted, the jury awarded Ms. Antippas $ 35,000 in general damages in the following amounts:

Past Physical Pain and Suffering - $ 10,000
Future Physical Pain and Suffering - $ 10,000
Past and Future Mental Anguish -$ 5,000
Past and Future Emotional Distress- $ 5,000
Past and Future Loss of Enjoyment of Life - $ 5,000

Ms. Antippas asserts that this award is grossly inadequate, claiming that $ 550,000 is the damage amount that is warranted under the facts of this case. We disagree.

General damages, which "involve mental and physical pain and suffering, inconvenience, loss of intellectual gratification of physical enjoyment, and other losses of lifestyle that cannot be definitively measured in monetary terms," are "speculative in nature and cannot be fixed with mathematical certainty." Waters v. Oliver , 16-1262, p. 18 (La. App. 4 Cir. 6/22/17), 223 So.3d 37, 49 [citations omitted]. The factors to be considered in assessing quantum for pain and suffering are severity and duration. Simon v. Reel , 03-0932, p. 6 (La. App. 3 Cir. 3/3/04), 867 So.2d 174, 178-79 (citing Glasper v. Henry , 589 So.2d 1173 (La.App. 4 Cir. 1991). Additionally, " 'loss of enjoyment of life ... refers to detrimental alterations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed' prior to the injury." McGee v. A C and S, Inc., 05-1036, p. 3 (La. 7/10/06), 933 So.2d 770, 773. Unlike pain and suffering, "whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury." Id. , 05-1036, p. 5, 933 So.2d at 775.

General damage awards are reviewed under an abuse of discretion standard because the trier of fact is in the best position to evaluate witness credibility and see the evidence firsthand. See Duncan , 00-66, pp. 13-14, 773 So.2d at 682-83. "An appellate court may not overturn an award for general damages unless it is so out of proportion to the injury that it shocks the conscience." Lee v. Lu , 05-899, p. 9 (La. App. 5 Cir. 4/11/06), 931 So.2d 365, 371 [citation omitted].

In the instant matter, as previously stated, the jury heard and considered the testimony of Ms. Antippas and Dr. Rodriguez about the injuries she sustained and that pain for the rest of her life. Although a different trier of fact may have awarded Ms. Antippas more in general damages, we do not find that the amount awarded is so disproportionate that it shocks the conscience, especially because we do not know how credible the jury found the witnesses to be with regard to this issue. Thus, we affirm the award of general damages and find that this assignment of error is without merit.

DECREE

In consideration of this consolidated matter and the cross-appeals of Plaintiff Athena Antippas and the Defendants, Damon Young and Parking Management Services, we affirm the August 2, 2017 judgment of the district court for the foregoing reasons.

AFFIRMED

LEDET, J., CONCURS IN THE RESULT

      Mr. Young is also known as Damon Barre.

      Ms. Antippas further testified that the driver of a Ford Mustang passed her, on her left side, when the accident at issue occurred.

      Mr. Robert was retained as an expert by Ms. Antippas, but was called to testify by the Defendants.

      Ms. Antippas is the appellant in two of the three consolidated appeals, 2017-CA-0798 and 2018-CA-0468, while the Defendants are the Appellants in the second-filed appeal, 2018-CA-0397. Concerned that her first Motion for Devolutive Appeal was premature and thus did not properly trigger an appeal, Ms. Antippas filed the second Motion and Order for Devolutive appeal out of an abundance of caution. The parties filed a Joint Motion to Consolidate in this Court, which was granted on October 11, 2018.

      Furthermore, the record reflects that some of Ms. Antippas' medical records that were accepted as exhibits at trial-specifically patient intake forms-stated that she cycled into an open car door.

      He later testified that a medial branch block is a confirmatory or diagnostic tool that determines if the facet joints are a problem, and, thus, that there is no confirmed diagnosis.