author: KEATY, Judge.

text:
    Alyce MOUTON v. WALGREEN COMPANY
    17-1025
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018 Rehearing Denied June 13, 2018
    Michael B. Miller, Miller & Associates, Post Office Drawer 1630, Crowley, Louisiana 70527-1630, (337) 785-9500, Counsel for Plaintiff/Appellant: Alyce Mouton
    James F. Scott, James F. Scott, III, L.L.C., 3045 Ridgelake Drive, Suite 201, Metairie, Louisiana 70002, (504) 838-8811, Counsel for Defendant/Appellee: Walgreen Company
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

Claimant, Alyce Mouton, appeals a judgment rendered by a workers' compensation judge (WCJ) in favor of her former employer, Walgreen Company (Walgreens), terminating her entitlement to indemnity benefits. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

After a March 27, 2007 trial, the WCJ rendered judgment on August 14, 2007, (hereafter "the original judgment") finding that Claimant "was injured in the course and scope of her employment with Walgreen Drug Stores on March 29, 2004 and April 5, 2004" and ordering Walgreens to pay her $429.00 in weekly temporary total disability benefits (TTDs) beginning April 6, 2004, along with all reasonable and necessary medical treatment resulting from her workplace injuries. This court affirmed the judgment. See Mouton v. Walgreen Co. , 07-1403 (La.App. 3 Cir. 4/2/08), 981 So.2d 75.

In December 2016, Walgreens filed a Motion to Modify Judgment and Suspend Indemnity Benefits, alleging that there had been a change in condition and that the original judgment should be modified, pursuant to La.R.S. 23:1310.8(B), to convert Claimant's benefits from TTDs to supplemental earnings benefits (SEBs), pursuant to La.R.S. 23:1221. The basis of Walgreens' motion to modify was a July 8, 2015 report issued by Dr. Angela Mayeux in her capacity as the Independent Medical Examiner (IME) wherein she found, for the first time, that Claimant had reached maximum medical improvement (MMI). In its motion to modify, Walgreens asserted that "Claimant cannot or will not cooperate with" a Functional Capacity Evaluation (FCE), "and is therefore released to return to work at light duty pursuant to the State IME." According to Walgreens, the findings in the IME constituted a change in condition pursuant to La.R.S. 23:1310.8 and warranted modification of the original judgment, converting Claimant's TTDs to SEBs. Because it had paid Claimant more than five hundred twenty weeks of indemnity benefits, Walgreens asked the WCJ to suspend its further payment of indemnity benefits. Claimant did not file an opposition to the motion to modify.

On February 23, 2017, the WCJ held a hearing on Walgreens' motion to modify. At the start of the hearing, Claimant's counsel stipulated that Walgreens had paid Claimant five hundred twenty weeks of indemnity benefits. Thereafter, Walgreens officially offered into evidence the documents that were filed with its motion to modify, including Dr. Mayeux's July 8, 2015 IME report. When Claimant's counsel attempted to offer exhibits into evidence, Walgreens' counsel objected based on La.Dist.Ct.R. 9.9, which requires that opposition memorandum be filed at least eight days before a contradictory hearing. After counsel for Walgreens declined the WCJ's offer to continue the hearing on its motion, the WCJ allowed Claimant's exhibits into evidence. Those exhibits consisted of the original judgment, the IME reports Dr. Mayeux completed after examining Claimant on three occasions, and certified records from Claimant's pain management physician, Dr. Daniel Hodges. No witnesses testified at the hearing. After hearing arguments from counsel, the WCJ took the matter under advisement and the parties were ordered to file post-hearing briefs. On July 5, 2017, the WCJ issued oral reasons for ruling in the presence of counsel in which it stated that it would enter judgment in favor of Walgreens and against Claimant, granting Walgreens' motion to modify judgment and suspend indemnity benefits, rendering judgment modifying the original judgment to convert Claimant's temporary total disability benefits (TTDs) to supplemental earning benefits (SEBs), and suspending and terminating Claimant's entitlement to indemnity benefits "as more than five hundred twenty (520) weeks of indemnity has been paid." Counsel for Walgreens submitted a written judgment in the substance of the WCJ's oral ruling which was signed on August 25, 2017.

Claimant now appeals, asserting the following assignments of error:

1. The workers' compensation judge erred in finding that Walgreens provided proof that there was a change in conditions.
2. It was error for the workers' compensation judge to find that Ms. Mouton was no longer entitled to temporary total disability benefits.
3. The workers' compensation judge erred in finding that Walgreens was entitled to change Ms. Mouton's weekly benefits from TTD to SEB and in terminating Ms. Mouton's indemnity benefits.

DISCUSSION

"Factual findings of the WCJ are subject to manifest error review." Numa C. Hero & Son v. Leleux , 15-305, p. 3 (La.App. 3 Cir. 10/28/15), 178 So.3d 595, 598. "Whether the burden of proof has been satisfied" is a question of fact for the WCJ. Id. "Under the manifest error rule, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable." Id.

Louisiana Revised Statutes 23:1310.8 (emphasis added), titled "Jurisdiction continuing; determining as to final settlement," provides in pertinent part as follows:

A. (1) The power and jurisdiction of the workers' compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified ....
....
B. Upon the motion of any party in interest, on the ground of a change in conditions , the workers' compensation judge may , after a contradictory hearing, review any award, and , on such review, may make an award ending, diminishing, or increasing the compensation previously awarded , subject to the maximum or minimum provided in the Workers' Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.
....
F. An award of temporary total disability benefits may be modified by the filing of a motion for modification with the same court that awarded the benefits and under the same caption and docket number without the necessity of filing a new dispute ....

"A party who seeks a modification of a worker's compensation judgment must prove by a preponderance of the evidence that the worker's disability has increased or diminished." Lormand v. Rossclaire Constr. , 01-515, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 675, 676. A WCJ's factual finding that a party has demonstrated a change in condition is entitled to great weight and "will not be disturbed unless clearly wrong." Id.

Louisiana Revised Statutes 23:1221(1)(a) provides that "[f]or any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages," the injured employee shall receive TTDs "during the period of such disability." The statute provides, however, that such benefits "shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required." La.R.S. 23:1221(1)(d). "Upon reaching maximum medical improvement, an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB benefits if he is unable to earn 90% of his pre-accident wages." Numa Hero , 178 So.3d at 600. Nevertheless, the right to receive SEBs "shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate." La.R.S. 23:1221(3)(d). "An IME's medical conclusions are given significant weight because the IME is an objective party; however, the WCJ should evaluate all of the evidence presented in making a decision as to a claimant's medical condition." Numa Hero , 178 So.3d at 602.

In Numa Hero , the employer filed a motion to modify an earlier consent judgment, under which it agreed to pay the claimant TTDs, to reclassify the benefits to SEBs while leaving the amount of benefits untouched. At the hearing on the motion, the parties submitted a deposition of the State-appointed IME physician, Dr. Christopher Belleau, along with the medical records and exhibits attached to it, plus the records of the employer's choice of physician and the claimant's pain management physician. In his deposition, the IME doctor stated the claimant "had reached maximum medical improvement and that he was capable of sedentary work with some restrictions," and the employer's choice of physician indicated that the claimant could perform work without restriction. Numa Hero , 178 So.3d at 597. This court affirmed the WCJ's ruling granting the employer's motion to modify the claimant's benefits from TTDs to SEBs, despite the claimant's testimony that his pain had become "more intense and frequent" and that he continued to see Dr. Hodges once every three months for pain management. Id. at 601. In doing so, this court first had to decide "the applicable burden of proof required for modification of TTD benefits to SEB benefits." Id. at 598. We noted that under La.R.S. 23:1310.8, the employer had to (1) "prove by a preponderance of the evidence that there was a change in [the claimant's] condition or circumstances in order to establish the WCJ's jurisdiction; and (2) It must also prove by a preponderance of the evidence that, because of [the claimant's] change in condition or circumstances, [her] entitlement to TTD under La.R.S. 23:1221(1)(d) had ceased." Id. at 599. In affirming the judgment on appeal, we noted that despite her failure to "mention La.R.S. 23:1221(1)(d) in her written reasons for ruling, she fully considered the facts necessary to terminate TTD under [that statute,]" and we concluded that her "factual findings were reasonable in light of the evidence presented." Id. at 600, 602.

Given the nature of the errors assigned by Claimant in this appeal, our task is to determine whether Walgreens met its burden of proving that it should be allowed to modify Claimant's TTDs to SEBs. In its oral reasons, the WCJ herein quoted extensively from Numa Hero . The WCJ then detailed the substance of Dr. Mayeux's July 8, 2015 IME report, which listed the medical records Dr. Mayeux reviewed since she last examined Claimant, along with Dr. Mayeux's current impression of Claimant's condition, which we repeat below:

Status post back and neck injury in 2004 with subsequent cervical and lumbar surgery, the patient does have findings today consistent with atrophy in her right upper extremity with decreased strength in C-7 bilaterally and some chronic denervation in the C-6 and C-7 nerve root on the right which goes along with her physical examination. In her lower extremity she was found to have two centimeters of atrophy in her right calf. I do not have the lower extremity nerve conduction studies to correspond. From the studies that I reviewed, it appears that her cervical and lumbar fusions are solid with no interval development of foraminal or central canal stenosis either in her cervical or lumbar spine based upon radiologic studies.
I feel that this patient is at maximum medical improvement. I was not asked to address her pain management situation, and I will defer to Dr. Hodges on that. As far as her ability to return to work, I would recommend a functional capacity evaluation. I would recommend that she be returned to work in a capacity that is consistent with the examination. If she cannot or will not cooperate with the functional capacity examination, I would recommend that she be returned to work at light duty.

Next, the WCJ stated he had reviewed the records from Dr. Daniel Hodges, who currently manages Claimant's pain symptoms with visits approximately once every three months. The WCJ referenced a questionnaire that Dr. Hodges filled out in June 2016, wherein Dr. Hodges was asked, "Per IME of 7.8.15, Dr. Mayeux opined Ms. Mouton is at Maximum Medical Improvement (MMI). Are you in agreement with this opinion? If "NO", anticipated date of MMI." Dr. Hodges' response was "Disabled can't work 8 hrs/day 5 days/wk." Dr. Hodges was then asked, "Dr. Mayeux recommended a Functional Capacity Evaluation (FCE) to address Ms. Mouton's ability to [Return to Work]. She stated she be returned to work in a capacity that is consistent with the FCE. Are you in agreement with this opinion?" In response, Dr. Hodges stated: "Don't think necessary b/c she is disabled; can't justify FCE." The next question was, "Dr. Mayeux recommended Ms. Mouton be returned to work at a light duty level if she cannot or will not cooperate with a FCE. Are you in agreement with this opinion?" Dr. Hodges responded, "No. Ms. Mouton is disabled." Finally, in the additional comments sections, Dr. Hodges wrote: "Not looking to get her back to work. Trying to make comfortable with meds."

The WCJ then ruled:

The Court has evaluated all the evidence. Considering the law and the evidence, the Court finds that the Defendants have met their burden of proof. The Court grants the motion to modify judgment finding that Ms. Mouton is entitled to supplemental earnings benefits at the full rate based upon a zero earnings capacity. Pursuant to the stipulation of the parties, Ms. Mouton has been paid five hundred and twenty weeks of weekly benefits, thus Ms. Mouton's right to supplemental earnings benefits has exceeded five hundred and twenty weeks and are terminated.

Claimant submits that Walgreens must show that her condition has improved since the original judgment was rendered. She contends that her having reached MMI is not a "change in condition" sufficient to allow Walgreens to modify her benefits under La.R.S. 23:1310.8 and that the February 23, 2017 hearing "was nothing more than a retrial of the 2007 trial with the same evidence, but a different workers' compensation judge." Claimant points out that the evidence shows that she continues to treat with Dr. Hodges and that as late as January 2017, she was referred to a Dr. Joseph Gillespie for C-Facet Injections. Moreover, Claimant insists that her being at MMI demonstrates that her condition has worsened, not improved.

Claimant's belief that Walgreens had to show an improvement in her condition is dispelled by the language of La.R.S. 23:1310.8(B) which allows a WCJ to "make an award ending, diminishing, or increasing the compensation previously awarded." Because the legislature provided a mechanism for a WCJ to increase the amount of compensation to a claimant, it must have contemplated situations where a claimant's condition would have diminished so as to entitle that claimant to a higher amount of compensation.

The WCJ's reasons for rulings demonstrate that he thoroughly reviewed the medical exhibits offered by Claimant and Walgreens. Included in Dr. Mayeux's July 8, 2015 IME report was an IME of Claimant done by Dr. Douglas Bernard in July 2013, at which time he opined that Claimant was at MMI and could return to work. Dr. Mayeux's report noted that she had reviewed Claimant's records from a Dr. R. Dale Bernauer who managed her pain from December 2012 to March 2015. Dr. Mayeux also noted that she reviewed notes beginning in December 2012 from Dr. Hodges. Dr. Mayeux stated that Claimant was apparently "getting medications from both Dr. Bernauer and Dr. Hodges, though she does not list the medications from Dr. Bernauer on her medical history."

"[W]hen the claimant no longer requires treatment and his physical condition has stabilized, an award for TTD benefits is no longer appropriate and a determination regarding the extent of the Claimant's disability must be made." Numa Hero , 178 So.3d at 600 (quoting Navarre v. K-Mart, 01-753, p. 6 (La.App. 5 Cir. 11/27/01), 803 So.2d 206, 209 ). Here, the medical evidence reveals that Claimant's condition has stabilized, which was not the case when the original judgment was rendered in 2007. Although she continues to receive pain management, which includes medications and facet joint injections, we note that the WCJ in Numa Hero modified the benefits of the claimant from TTDs to SEBs where his "condition [w]as no longer 'temporary' but had plateaued into a chronic pain situation ... treated with regular 3 month visits to Dr. Hodges." Id. In addition, since July 2013, Dr. Bernard found Claimant to be at MMI and able to return to work, and as of July 2015, Dr. Mayeux agreed that Claimant was at MMI and could perform light-duty work.

After reviewing the record before us, we are convinced that the WCJ applied the correct burden of proof in this matter. Moreover, given the totality of the medical evidence offered at the hearing on Walgreens' motion to modify, we cannot say that the WCJ's decision to grant the motion, modify Claimant's TTDs to SEBs, and suspend those benefits as Claimant had already collected those benefits for the maximum time allowed by La.R.S. 23:1221(3)(d) was manifestly erroneous. Thus, Claimant's assignments of error lack merit.

DECREE

For the foregoing reasons, the judgment in favor of Walgreens and against Alyce Mouton, granting Walgreens' motion to modify judgment and suspend indemnity benefits, modifying the original judgment to convert Alyce Mouton's temporary total disability benefits to supplemental earning benefits, and suspending and terminating Alyce Mouton's entitlement to indemnity benefits is affirmed. Costs of this appeal are assessed against Alyce Mouton.

AFFIRMED.

      We note that in its answer and all subsequent pleadings, Walgreens identifies itself as "Walgreens Drug Stores."

      The original judgment erroneously listed its signing date as 2005 rather than 2007.

      In addition, Walgreens was ordered to pay Claimant a $4,000.00 penalty for failure to pay medical and mileage benefits plus 12% of weekly compensation benefits that were then due and unpaid, plus $18,500.00 in attorney fees and court costs.

      We amended the total penalty award to fit within the $8,000.00 statutory cap.

      In light of the aforementioned stipulation, Walgreens withdrew several of the exhibits that had been attached to its motion.

      Dr. Mayeux examined Claimant on February 14, 2007, July 18, 2012, and July 8, 2015.

      In the August 25, 2017 judgment, the WCJ denied an exception of res judicata that Claimant's counsel filed in open court at the February 23, 2017 hearing. Claimant did not seek review of that ruling.

      The original judgment was rendered by Sam Lowery, and the judgment on appeal was rendered by Adam Johnson.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. McKartney YOUNG
    17-1108
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2018
    John Foster DeRosier, Fourteenth Judicial District Attorney, Brett Gaspard, Assistant District Attorney, Elizabeth B. Hollins, Assistant District Attorney, Karen C. McLellan, Assistant District Attorney, Carla S. Sigler, Assistant District Attorney, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR APPELLANT: State of Louisiana
    Todd S. Clemons, Todd Clemons & Associates, 1740 Ryan Street, Lake Charles, LA 70601, (337) 477-0000, COUNSEL FOR DEFENDANT/APPELLEE: McKartney Young
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

The State of Louisiana appeals the sentence imposed on Defendant/Appellee, McKartney Young, who was adjudicated a third felony offender pursuant to La.R.S. 15:529.1. The State contends that the sentence was illegally lenient. For the reasons that follow, we vacate Defendant's sentence and remand the matter to the trial court for resentencing in accordance with this opinion.

FACTS

Defendant was indicted by a Calcasieu Parish grand jury with Possession of a Controlled Dangerous Substance-Schedule II (cocaine) with intent to distribute, a violation of La.R.S. 40:967, and Possession of a Controlled Dangerous Substance-Schedule V (codeine) with intent to distribute, a violation of La.R.S. 40:970. Plea negotiations ensued Defendant's entry of a plea of not guilty. Despite the fact that he had not reached an agreement with the State on the recommended sentences, Defendant entered a guilty plea and was sentenced to five years imprisonment on each charge. These sentences were to run concurrently with each other and with a probation violation he was serving at the time.

The State then charged Defendant with being a fourth habitual offender pursuant to La.R.S. 15:529.1. Defendant denied the charge. At the hearing on the habitual offender charge, the trial court adjudicated Defendant a habitual offender, vacated the sentences imposed at Defendant's entry of the guilty pleas, and sentenced Defendant to twenty years imprisonment without benefit or probation, parole, or suspension of sentence.

Defendant filed a motion for new trial and reconsideration of sentence, which the trial court granted. At the new trial on the habitual offender bill, the State introduced evidence to prove that Defendant had been convicted in 2005 of simple burglary and possession of a Controlled Dangerous Substance-Schedule IV, in 2011 of possession of a Controlled Dangerous Substance-Schedule II, and of the 2015 guilty pleas referenced above. According to the testimony of Defendant's attorney at the time of his plea, while the State regularly threatened defendants with being charged as habitual offenders if they rejected a plea offer, Defendant's case was the first and only time he had actually seen the State carry through with such a threat following the entry of a guilty plea. Testimony was also adduced that Defendant had been charged with involvement in a homicide, but the State had dismissed the charges for lack of evidence. That attorney also testified that the State's offer of recommending a sentence of twenty years before the pleas were taken was so high because the State felt that Defendant "had beat a murder charge." Defendant also pointed out to the trial court that the relevant statute, La.R.S. 15:529.1, had been amended in 2017 to lessen the minimum sentence for a fourth and subsequent nonviolent offender from thirty years to twenty years. See 2017 La. Acts No. 82.

The trial court again adjudicated Defendant a habitual offender. The following discussion occurred:

THE DEFENDANT:
Judge Davis. I'm sorry. Yeah. I'm just here just asking for one more chance to show leniency, man. I just had a two-week-old kid. And the things I did in the past, I ain't going to do them no more, and I'm just asking you for one more chance.
MR. CLEMONS:
And, judge, I would like to-my client's, also, father is dying with stage 3-stage 4 cancer, judge. I just wanted to point that out to the Court.
THE COURT:
Well, I am convinced based on the testimony and based on, you know, things-information swirls around. Somehow, I remember, some sort, along the way the hint or the suggestion that the murder charge incident was driving a lot of the activities in this case, you know, on these unrelated drug charges. Plus we do have testimony from the last hearing that-from the attorney that confirmed that. That's very troubling that that would be a driving force on unrelated drug charges that are nonviolent.
I accept that, and that's part of my decision today to maintain the prior 5 years DOC on all matters to run concurrent, that along with the compelling argument made regarding the change in the law.
Obviously, we can't go back and apply that retroactively, but I wish we could because-the legislature has done that because it makes so much sense to reduce the timeline or timeframe to allow or to prevent prosecutors from imposing this Habitual Offender Law. And, finally, the obvious facts that these are all drug related, they're not crimes of violence, that is a compelling reason as well.
So I'm comfortable that this is appropriate, the right thing to do. It's constitutionally mandated for the Court to take note of all these matters and avoid an excessive sentence under these circumstances. Okay?
MR. GASPARD:
And, Judge, just for the record, is he-he's being sentenced as to both charges, the possession of CDS II of intent to distribute cocaine and-
THE COURT:
Well, you know, on that matter, that's-that's an odd-an odd set of circumstances. I don't-pardon me?
DEPUTY CLERK:
Where are those other charges that we're talking about, because the only thing we have is the third and subsequent-
MR. GASPARD:
Oh, I'm sorry.
DEPUTY CLERK:
-habitual offender?
MR. GASPARD:
It's-it's going to be under a different docket number that he pled to.
DEPUTY CLERK:
What is it?
MR. GASPARD:
It's going to be under-let's see-docket No. 18591-14, that's what he had pled to, and then that was the underlying-some of the underlying charges for the habitual offender bill.
THE COURT:
From-
MR. CLEMONS:
And then you-
THE COURT:
-a technical standpoint-
MR. CLEMONS:
-vacated that sentence.
THE COURT:
-all I'm doing is sentencing him under the habitual-
MR. CLEMONS:
Right.
THE COURT:
-one-one matter; is that right? I'm a little-
MR. CLEMONS:
The record is really confusing, Judge, but I just think what-if it's clear that your sentence is 5 years concurrent, even if it's 2 matters, I think the record will be clear, and I think that's what I heard you say, so.
THE COURT:
Well, the intent is that on everything that he faces, including the habitual offender bill, that it's going to be 5 years DOC to run concurrent with-to run concurrent with-
MR. CLEMONS:
With each other, but you also said the probation. Previous, you said probation violation concurrent as well. That's what you said originally.
THE COURT:
Well, I-my-yes.
MR. CLEMONS:
I just want to have the record clear.
THE COURT:
If that's in the mix, yes.
MR. CLEMONS:
Right. I just wanted to have the record to be clear, even if it's still in the mix, which you're right, it may be a moot point since you already said it once, so.
And, Judge, if we can just ask the record to reflect-
THE COURT:
Hang on. Let's make sure-are you okay?
DEPUTY CLERK:
Okay. what is the sentence for the habitual offender?
THE COURT:
5 years DOC to run concurrent with any other probation violations or-
MR. CLEMONS:
Drug sentences.
THE COURT:
-prior sentences on this defendant or pending.
MR. CLEMONS:
Drug case, right.
THE COURT:
Any sentence he is serving-
MR. CLEMONS:
Before you, right.
THE COURT:
-before me-
MR. CLEMONS:
Right.
THE COURT:
-is concurrent with this habitual offender sentence that I am imposing.
MR. CLEMONS:
And, Judge, I would just ask can you make the record clear that he receive credit for all time served under these docket numbers?
THE COURT:
Yes, sir.
MR. CLEMONS:
Thank you.
MR. GASPARD:
I'd like to note the State's objection for the record, Judge-
THE COURT:
Yes, sir.
MR. GASPARD:
-give notice for appeal and request a transcript of the hearing.
THE COURT:
Yes, sir.
DEPUTY CLERK:
And then credit for time served-what all docket numbers are you asking for? He said for all docket numbers.
MR. CLEMONS:
Right. I can give you the ones I have, the 18591-14.
DEPUTY CLERK:
That's going to be after-
MR. CLEMONS:
Then we have the 6713-15 is the habitual offender. I think that may be the only two.
THE COURT:
That makes sense. But back to the issue of cocaine versus codeine, he pled to both.
MR. CLEMONS:
Correct.
THE COURT:
So the idea that the Court should go back and cherry-pick one or the other and ignore one or the other doesn't make much sense to me. I understand why, because codeine is much less than the cocaine, but that's just-that would simply be the Court manipulating what he pled guilty to. The cocaine is 2 to 30. Codeine is zero to 5.
MR. CLEMONS:
Correct.
THE COURT:
In any event, it's going to be a maximum of 5 years DOC concurrent, credit for time served on the habitual so-
MR. CLEMONS:
Thank you.
THE COURT:
-for the reasons I've already stated.
DEPUTY CLERK:
(Inaudible.)
THE COURT:
Yeah. I'm not disturbing anything I've already done, just-I'm just running concurrent. The sentencing-the sentence on that-on that-on February 12 (sp) is, what, 5 years?
MR. CLEMONS:
5 years, correct.
THE COURT:
Yeah.

The State now appeals the sentence, which it contends is illegally lenient.

ANALYSIS

The hearing on the adjudication took place in September 2017. Until November 1, 2017, the minimum sentence for a third and subsequent non-violent habitual offender would have been twenty years for possession of Controlled Dangerous Substance-Schedule II with intent to distribute. La.R.S. 15:529.1(A)(3)(a). The constitutionality of a mandatory minimum sentence is presumed and rebutting that presumption by clear and convincing evidence is a defendant's burden. State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672. A downward departure from the statutory minimum sentence requires that a defendant prove that, in his unusual circumstance, the statutory minimum sentence is not crafted to address his culpability, the seriousness of the offense, or the particular circumstances of the case. Id. Even given those findings, a trial court is not empowered to pass whatever sentence it feels is appropriate; it "must sentence the defendant to the longest sentence which is not constitutionally excessive. This requires a sentencing judge to articulate specific reasons why the sentence he imposes...s the longest which is not excessive under the Louisiana Constitution." Id. at 677.

The record in this matter lacks sufficient clarity to allow us to adequately review this matter to determine what specific findings the trial court found were proven by Defendant. Based upon the colloquy quoted above, it appears that the trial court may have been swayed by Defendant's contention that the State vindictively prosecuted him on the two possession charges, but that is not clear. The trial court may have been influenced by Defendant's status as a new father, but that, too, is unclear. Defendant's father's health may have played a role in the trial court's downward departure, but whether it did remains a matter of conjecture. The trial court did not articulate its reasons adequately. Furthermore, La.R.S. 15:529.1 requires that a specific sentence be enhanced.

Therefore, we vacate Defendant's sentence and remand the matter to the trial court for resentencing. The trial court is instructed to provide specific reasons for sentencing, and said reasons should include any factors supporting a downward departure from the statutory minimum and any facts that demonstrate Defendant is "exceptional" so that such a downward deviation is appropriate. Further, the trial court must state which underlying sentence is being enhanced under the habitual offender law.

DECREE

Defendant's sentence is vacated. This matter is remanded to the trial court for resentencing. The trial court is instructed to articulate with specificity the findings of fact supporting any downward departure from the statutory minimum sentence imposed pursuant to La.R.S. 15:529.1, as it provided at the time of sentencing, in accordance with this opinion. The trial court is also instructed to state which sentence is being enhanced pursuant to La.R.S. 15:529.1.

SENTENCE VACATED AND REMANDED.

      During the hearing pursuant to Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the State announced its intention to charge Defendant as a habitual offender. Defendant nonetheless pleaded guilty.

      Defendant has been charged again with the homicide. At the time of the hearing of the new trial on the habitual offender charge, a motion to quash the charge was pending.


author: AMY, Judge.

text:
    NOLES-FRYE REALTY (NAI LATTER & BLUM) v. Holly DIXON, et al
    17-965
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2018
    William M. Ford, Post Office Box 12424, Alexandria, LA 71315-2424, (318) 442-8899, COUNSEL FOR DEFENDANTS/APPELLEES: Holly Dixon, Sandra Damico, Diana Ratner, Jayn Robison
    Christie C. Wood, Wilson & Wilson, Post Office Box 1346, Jena, LA 71342, (318) 992-2104, COUNSEL FOR DEFENDANTS/APPELLANTS: Andrea Talbot, Adrian Talbot
    Michael S. Ricci, 101 W. Robert E. Lee Boulevard, Suite 400, New Orleans, LA 70124, (504) 304-7115, COUNSEL FOR PLAINTIFF/APPELLEE: Noles-Frye Realty (NAI LATTER & BLUM)
    Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.
   AMY, Judge.

Following the failure of a purchase agreement, a realty company commenced this concursus proceeding so that the sellers and the purported buyer could advance their claims of ownership to the underlying deposit. Following a hearing, the trial court ruled in favor of the sellers after observing that, although the buyer was credible in her testimony regarding her inability to secure financing for the home, she failed to produce corroborating documentary or testimonial evidence in that regard. The buyer appeals. Following review, we reverse and render.

Factual and Procedural Background

Noles-Frye Realty filed a Petition for Concursus instituting this matter in December 2015, noting that it "became aware that a dispute existed as to the ownership or entitlement of funds, held in escrow as a result of a real estate transaction." The parties to the underlying transaction, a September 2015 Louisiana Residential Agreement to Buy or Sell ("the Agreement"), were named as defendants in the proceeding. The record indicates by the Agreement, Andrea Soltau-Talbot ("the Buyer"), sought to purchase residential property in Alexandria offered for sale by Holly Dixon, Sandra Damico, Diane Ratner, and Jayn Robison (hereinafter "the Sellers"). Although the closing date was twice extended, the sale was not completed.

Both the Buyer and the Sellers claimed entitlement to the $30,000.00 deposit provided by the Buyer pursuant to the Agreement. Each focused on the initial inquiry as to whether the Agreement provided that the sale was to be a financed one and the effect of the Agreement's condition that:

This sale is conditioned upon the ability of BUYER to borrow with this Property as security for the loan the sum of $ TBD or __% of the Sale Price by a mortgage loan or loans at an initial interest rate not to exceed _____% per annum, interest and principal, amortized over a period of not less than _____ years, payable in monthly installments or on any other terms as may be acceptable to the BUYER provided that those terms do not increase the cost, fees or expenses to the SELLER .

The Agreement further indicated that the loan was to be secured by "Fixed Rate Mortgage[.]" Following "Other financing conditions[,]" it provided that: "Financing to be done w/ credit union in New Orleans that buyer is member of. Buyer has already prequalified."

In support of their claim to the deposit, the Sellers argued that, while the Agreement indicated that the sale was to be a financed one, the "TBD" and otherwise uncompleted aspects of the financing details indicated that the sale was not, in fact, contingent on financing. As the sale was not completed, the Sellers sought the deposit by the purchase agreement's provision that:

DEFAULT OF AGREEMENT BY BUYER : In the event of any default of this Agreement by the BUYER , the SELLER shall have at the SELLER'S option the right to declare this Agreement null and void with no further demand, or to demand and sue for any of the following: 1) Termination of this Agreement; 2) Specific performance; 3) Termination of this Agreement and an amount equal to 10% of the Sale Price as stipulated damages.
Further, the SELLER shall be entitled to retain the Deposit. The prevailing party to any litigation brought to enforce any provision of this Agreement shall be awarded their attorney fees and costs. The BUYER may also be liable for Broker fees.

(Emphasis added.)

Conversely, the Buyer contended that she was unable to secure financing and that, by operation of the financing contingency, she was entitled to the return of the deposit pursuant to the following:

RETURN OF DEPOSIT: The Deposit shall be returned to the BUYER and this Agreement declared null and void without demand in consequence of the following events:
....
2) If this Agreement is subject to the BUYER'S ability to obtain a loan and the loan cannot be obtained, except as stated in lines 70 through 77 of this Agreement, but only if the BUYER has made timely application for the loan and made good faith efforts to obtain the loan [.]

(Emphasis added.)

Following a hearing, the trial court determined that the Buyer failed to prove that she made a good faith effort to obtain financing. Thus, the trial court ruled in favor of the Sellers and ordered that the Rapides Parish Clerk of Court tender the subject deposit to them.

The Buyer appeals, asserting that:

1. The trial court erred as a matter of law by shifting the burden to Appellant;
2. The trial court erred as a matter of law, by holding that Appellant did not make a reasonable effort to fulfill her obligations;
3. The trial court erred as a matter of law when it found Ms. Talbot forfeited her $30,000.00 deposit to the Sellers.

Discussion

Burden of Proof

In her first assignment of error, the Buyer references the trial court determination that she failed to sustain her burden of proving her good faith efforts to obtain financing. She contends, however, that the trial court erred in determining that she was required to sustain the burden of proof, "rather than requiring Seller to prove the contract had been breached in bad faith."

However, the Buyer's argument accounts for neither the fact that this matter is a concursus proceeding nor the specific wording of the contractual provision under which she advanced her claim. Louisiana Code of Civil Procedure Article 4651 explains that such a proceeding is "one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding." (Emphasis added.) See also La.Code Civ.P. art. 4654 (providing that a petition instituting a concursus proceeding "shall allege the nature of the competing or conflicting claims, and shall include a prayer that all of the persons having such claims be required to assert their respective claims contradictorily against all other parties to the proceeding.") (emphasis added). Significantly, "[e]ach defendant in a concursus proceeding is considered as being both a plaintiff and a defendant with respect to all other parties." La.Code Civ.P. art. 4656.

Given that posture, it bears repeating that each party claimed the deposit by virtue of adverse provisions within the Agreement. The Sellers contended that the Agreement contained no financing contingency, that the Buyer failed to complete the sale, and, therefore, that they were able to "retain the Deposit" by enforcing the "DEFAULT OF AGREEMENT BY BUYER " provision.

The Buyer contrarily referenced the Agreement's "RETURN OF DEPOSIT " provision, asserting that the Agreement was "subject to [her] ability to obtain a loan and the loan c[ould not] be obtained[.]" Thus, the Buyer noted that the provision indicates that "[t]he Deposit shall be returned to [her.]" However, that provision further indicates that the deposit was to be returned "only if the BUYER has made timely application for the loan and made good faith efforts to obtain the loan [.]" (Emphasis added.)

In ruling, the trial court referenced the burden of proving the Buyer's good faith effort in attempting to obtain financing, stating:

The issue before the Court is whether the buyer, after signing the buy-sell agreement on February 11, 2015, was in good faith in attempting to obtain financing for the house prior to the extended closing date of April 15, 2015.
A contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to obtain ownership of the thing. Three circumstances must exist for perfection of the contract: the thing sold, the price and consent. La. C.C. Art. 2439. A conditional obligation is one dependent on an uncertain event. If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive. La. C.C. Art. 1767. The obligation subject to a condition in this case is the sale of the house. The approval of financing was the uncertain event which suspended enforcement of the sale. The suspensive condition imposes on the buyer the duty to make a good faith effort to obtain the loan. Whether she has acted in good faith depends on the facts and circumstances in each case. If the buyer, through no fault of her own, is unable to obtain the loan, she is released from her obligation to purchase and is entitled to the return of her deposit. Woods v. Austin , 347 So.2d 897 (3rd Cir., 1997) ; La. C.C. Art. 1771.
....
Good faith requires she make a reasonable effort to obtain the agreed upon loan. The only evidence of her "reasonable effort" to obtain a loan is her testimony on the determinative issue which was not corroborated by other evidence.
Therefore, the Court finds that Andrea Saltau-Talbot did not meet her burden of proof that she was in good faith in obtaining a loan to comply with the suspensive condition in the February 11, 2015, Buy/Sell Agreement ....

To the extent she appeared as a plaintiff in her own claim, the Buyer asserted that the contract contained a financing contingency and, as she was unable to obtain financing, her obligations under the Agreement could not be enforced by the Seller. See La.Civ.Code art. 1767 (providing, in part, that: "A conditional obligation is one dependent on an uncertain event. If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive."). The Buyer thus initiated her claim under the contractual provision requiring her good faith effort in obtaining the loan as a further condition for the return of the deposit. Recognizing that claim, the trial court did not err in articulating that it was the Buyer's burden of proving that condition. See, e.g., Int'lCarriers, Inc. v. Pearl River Navigation, Inc. , 14-1189, p. 9 (La.App. 4 Cir. 4/15/15), 166 So.3d 1114, 1119 (noting that "interpleaded claimants must establish their respective claims to the fund.").

This assignment lacks merit.

Merits

By her final two assignments, the Buyer contends that the trial court was manifestly erroneous in determining that the evidence did not support a finding that she made a good faith effort to obtain financing for the home. She references the details of her testimony regarding efforts to obtain a mortgage from various financial institutions. In recounting her testimony, the trial court explained that:

After the buy-sell contract was signed by the parties, the buyer started her search for a conventional loan at a regular rate. Because she and her husband own mortgage property in North Carolina, she contacted the bank there to request financing the Alexandria house and learned they only provided loans on North Carolina real estate.
She then applied with Capital One Bank in Alexandria only to discover her credit report showed a 2005 "charge off." She testified after she and her first husband divorced, he defaulted on a loan that she subsequently paid. Once it was paid, she was under the impression it would not appear on her credit report and was surprised when Capital One informed her it was on her report. Because of the 2005 charge off, Capital [O]ne would not loan her money for the purchase of the house.
She then began to search for funding on the computer and found Gateway Funding. Who required her to make repairs and [s]ubsequently gave her a pre-approval for funding.
Gateway contacted and hired an Alexandria attorney, George Fine to check the title and handle the closing. He performed some curative work and then notified Gateway on March 13, 2015, that he had an unencumbered, marketable title and was ready to proceed with the closing. While this process was going on, Andrea made arrangements with Liberty Mutual to provide homeowner's insurance at the time of the closing.
Because of Andrea's search for funding, the closing on the house was extended from March 15 to March 31, 2015, and later to April 15, 2015.
She then sought financing with NOLA Lending and was also rejected by them.
Because she was unable to obtain financing, she didn't ask to extend the closing date after April 15, 2015, so she moved out of the house and requested a refund of her deposit.

The transcript supports the trial court's observations. The Buyer testified as to each lending institution she contacted in order to obtain financing. Those included a mortgage lender in North Carolina, Capital One, Gateway Funding, and, finally, the NOLA Lending Group. According to her testimony, she was unable to pursue funding with the North Carolina institution as it did not offer mortgage services for property in Louisiana. She also explained that, although she applied with the latter three organizations, she was never successful in obtaining financing. The Buyer testified that she even completed certain repairs to the home to facilitate approval from Gateway Funding. However, she explained that, despite her efforts, she was ultimately unable to obtain approval from any of the institutions. In particular, the Buyer testified she encountered difficulty in obtaining financing due to a poor credit history related to an earlier divorce.

In evaluating her testimony, the trial court explained that it was "impressed with Ms. Andrea Soltau-Talbot and believes her testimony was credible. She testified she attempted to obtain financing with her old bank in North Carolina, Capital One in Alexandria, Gateway and NOLA, both in New Orleans." We are mindful that such credibility determinations are within the province of the fact finder and will not be disturbed on appeal absent an abuse of discretion. Lomont v. Bennett , 14-2483 (La. 6/30/15), 172 So.3d 620.

Certainly, there is no evidentiary basis to disturb that determination following review of the record. While the Sellers suggest that the Buyer's claim of inability to obtain financing was undermined by her subsequent purchase of a more expensive property, we find no merit in that contention. Rather, the Buyer testified that she was able to obtain a multiple-indebtedness mortgage on the later-acquired property with the assistance of a new mortgage broker. That subsequent event with a different property, different lender, and different financing product is not contrary to the trial court's finding as to the Buyer's credibility in her testimony regarding the present property.

Having maintained the trial court's credibility determination, however, we find that its subsequent, anomalous determination that the Buyer ultimately failed to meet her burden of proof is manifestly erroneous. Despite its determination that her "testimony was credible" and that "[s]he testified she attempted to obtain financing" from various institutions, the trial court stated:

However, she did not produce any documents to prove she applied for a loan and didn't subpoena one loan officer to testify why her financing was denied. All that would have been required was the loan officer from Capital One in Alexandria to appear in Court with the application for financing and testify that she did apply and the reason her request was denied.
Good faith requires she make a reasonable effort to obtain the agreed upon loan. The only evidence of her "reasonable effort" to obtain a loan is her testimony on the determinative issue which was not corroborated by other evidence.
Therefore, the Court finds that Andrea Saltau-Talbot did not meet her burden of proof that she was in good faith in obtaining a loan to comply with the suspensive condition in the February 11, 2015, Buy/Sell Agreement ....

While it is apparent that the Buyer did not supplement her testimony with corroborating documentation, we find that the trial court erroneously concluded that her failure to do so was fatal to her claim. Rather, the plaintiff spoke extensively regarding her efforts to obtain financing and the financial institutions rejection of her applications. The trial court found merit in that testimony, detailing her efforts in its reasons for ruling.

However, the trial court specifically noted that the Buyer "did not produce any documents to prove she applied for a loan and didn't subpoena one loan officer to testify why her financing was denied." It suggested that: "All that would have been required was the loan officer from Capital One in Alexandria to appear in Court with the application for financing and testify that she did apply and the reason her request was denied." This requirement, however, strays from the confines of the Agreement.

Rather, the Agreement provided, in pertinent part, that if the loan could not be obtained, the deposit was returnable to the Buyer "but only if [she] made timely application for the loan and made good faith efforts to obtain the loan[.]" It does not qualify that return based upon a "reason" the loan could not be obtained. Thus, we find that the trial court was manifestly erroneous in concluding that the Buyer failed to meet her burden of proof by such corroboration. Instead, the Buyer testified regarding her efforts in obtaining the loan and her inability to do so. The trial court found that evidence credible. Following review, we find that the record does not otherwise question that testimony. Accordingly, we conclude that the record dictates a finding that the Buyer satisfied her burden of proving her entitlement to the return of the deposit pursuant to the Agreement. Below we enter a ruling in this regard.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is recast and rendered as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be Judgment in favor of ANDREA TALBOT and ADRIAN TALBOT, M.D. and against HOLLY DIXON, SANDRA DAMICO, DIANE RATNER, and JAYN ROBINSON, and further the Rapides Parish Clerk of Court is ordered to pay unto ANDREA TALBOT
and ADRIAN TALBOT the sum of $30,000.00 on deposit in the Registry of the Ninth Judicial District Court, Parish of Rapides, along with all of the accumulated interest.

All costs of this proceeding are assessed to the appellees, Holly Dixon, Sandra Damico, Diane Ratner, and Jayn Robinson.

REVERSED AND RENDERED.

      Although not a signatory to the purchase agreement, the concursus proceeding also listed Dr. Adrian Talbot, Mrs. Soltau-Talbot's husband, as a defendant. Although Dr. Talbot is an appellant here, we reference Mrs. Soltau-Talbot as the Buyer.

      Ms. Dixon testified that the Sellers inherited the property from their parents.

      The Sellers repeat that claim in their appellees' brief to this court. They argue that, notwithstanding the Buyer's argument regarding financing, "a more simple determination and conclusion was that the contract did not require as a condition that the buyer obtain financing." However, the trial court clearly rejected that argument and addressed its findings based upon such a condition. Although the Sellers focus on those aspects of the financing details left either unmarked or marked by "TBD," it is important to note that the financing contingency portion of the Agreement affirmatively indicated that the loan was to be secured by a "Fixed Rate Mortgage" and that, furthermore, a handwritten inscription referenced the Buyer's intention of using a New Orleans credit union. Although the Buyer testified that the mortgage lender was in North Carolina rather than New Orleans, that testimony does not otherwise reveal a lack of agreement that the purchase was conditioned on financing. Upon questioning, the agent who completed the Agreement responded "Most definitely" when asked whether it was his understanding that the sale was to be a financed one. He explained that certain details of the financing provision were not completed as he did not know the terms of the prospective loan, but only that it was required to be a fixed rate mortgage.

      The Buyer attempted to introduce certain financial institution materials, as well as correspondence with the realty company. However, the trial court excluded the evidence given its third-party nature and lack of associated witnesses. The Buyer proffered the exhibits for the record.


text:
    Carey DORSEY v. PROTEMP STAFFING SOLUTIONS, INC.
    17-793
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 2018 Rehearing Denied July 25, 2018
    Stacy C. Auzenne, Auzenne Law Firm, L.L.C., 3600 Jackson Street, Suite 121, Alexandria, LA 71303, (318) 880-0087, COUNSEL FOR DEFENDANT/APPELLEE: ProTemp Staffing Solutions, Inc.
    Charles W. Farr, 1966 N. Highway 190, Suite B, Covington, LA 70433, (985) 626-3812, COUNSEL FOR DEFENDANT/APPELLEE: Boise Cascade Company
    Carey Dwayne Dorsey, Post Office Box 562, Oberlin, LA 70655, (337) 977-1244, IN PROPER PERSON
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

The workers' compensation claimant sought benefits from injuries he allegedly sustained in a work-related accident. After the parties entered into a settlement, the claimant sought to reopen his claim by filing an amended claim. The workers' compensation judge concluded that the claimant failed to prove that the settlement should be set aside or modified. Subsequently, the claimant filed a motion to amend judgment and motion for new trial, and the workers' compensation judge denied both motions. The claimant now appeals.

For the following reasons, we affirm.

Factual and Procedural Background

On October 9, 2015, the claimant, Carey Dorsey, filed a "Disputed Claim for Compensation" in which he alleged that he injured his neck and back on September 21, 2011, while employed by ProTemp Staffing Solutions, Inc. ("ProTemp"). In particular, Mr. Dorsey asserted that the injury occurred when he was attempting to open a panel on a "chipper," which was subsequently engaged and jerked his body. Mr. Dorsey contended that his wage benefits terminated or were reduced on September 7, 2015, and that ProTemp should be assessed penalties, attorney fees, court costs, and legal interest, as well as a penalty for the failure to have workers' compensation insurance.

ProTemp answered and, in pertinent part, denied that Mr. Dorsey sustained an injury and denied that he was either temporarily or permanently disabled. In its answer, ProTemp stated that, at the time of Mr. Dorsey's alleged injury, it was insured by the Louisiana Safety Association of Timbermen. Additionally, ProTemp provided that compensation had been paid to Mr. Dorsey from September 21, 2011, the date of the alleged accident, until September 7, 2015. The record indicates that around September 7, 2015, the Louisiana Safety Association of Timbermen filed for bankruptcy.

Subsequently, Mr. Dorsey filed a "Motion and Order to File Amended and Supplemental Disputed Claim for Compensation." Mr. Dorsey alleged that, at the time of the injury, he had been "hired by ProTemp and loaned to defendant, Boise Cascade Company ("Boise Cascade") to perform work as a temporary employee." He further contended that, "[a]s the borrowing employer and/or the statutory employer, Boise Cascade is liable for workers' compensation indemnity benefits to Carey Dorsey." The workers' compensation judge granted Mr. Dorsey's motion. Mr. Dorsey and Boise Cascade ultimately entered into a consent judgment, which stipulated that Boise Cascade was the "special employer" or "borrowing employer" on the date of the alleged accident.

A hearing on Mr. Dorsey's claims was scheduled for November 16, 2016. However, prior to the start of the hearing, counsel notified the workers' compensation judge that the parties had reached an agreement to settle, and a compromise settlement was read into the record before the workers' compensation judge. Mr. Dorsey was represented by counsel, Gregory P. Marceaux, at this hearing. The workers' compensation judge asked Mr. Dorsey whether he had heard the terms and conditions of the settlement and whether he agreed with them, and Mr. Dorsey responded affirmatively to both questions. Thereafter, Mr. Dorsey, ProTemp, and Boise Cascade filed a "Joint Motion to Dismiss with Prejudice," which was granted by the workers' compensation judge. The parties then submitted signed compromise settlement documents and a "Joint Petition for Compromise Settlement of Workers' Compensation Claim" to the workers' compensation judge. On January 17, 2017, the workers' compensation judge signed the parties' "Request for Compromise or Lump Sum Settlement," as well as an "Order of Approval of Compromise Settlement" and an "Order of Dismissal." The "Order of Approval of Compromise Settlement" provided, in pertinent part:

EMPLOYER, PROTEMP STAFFING SOLUTIONS, INC. , and DEFENDANT, BOISE CASCADE COMPANY , shall be fully, finally and forever released and relieved from any and all further liability from any claims for compensation, damages as they relate to this workers' compensation claim, attorney's fees, travel expenses, penalties, medical expenses, and weekly workers' compensation indemnity or monthly supplemental earnings benefits or any other such claims arising heretofore which may hereafter arise out of the Louisiana Worker's Compensation laws in any manner connected with or growing out of any accident or injury occurring prior to the date of this Order, except for the obligation to comply with the terms of this Settlement Agreement.

On March 2, 2017, appearing in proper person, Mr. Dorsey filed an "Amended Disputed Claim for Compensation," which again named ProTemp and Boise Cascade and alleged that Mr. Dorsey had injured his neck and back on September 21, 2011. In the claim, Mr. Dorsey alleged that "Wage benefits terminated or reduced on 09/07/2015" and "Medical benefits terminated 09-07-2015." He also contended: "I have not received any temporary total disability benefits, cash or medical treatment and services since 09-07-2015. Comproise [sic] lump sum. And not seen by physican [sic] Dr. Hodges since 8-2015[.] Status TTD still unable to work. In treatment." ProTemp and Boise Cascade both filed exceptions of res judicata, motions to enforce the settlement, and motions for sanctions. On April 12, 2017, the workers' compensation judge held a hearing to address Mr. Dorsey's request. At the hearing, Mr. Dorsey argued that the settlement should be set aside on the basis of fraud or misrepresentation. After taking the matter under advisement, the workers' compensation judge issued a ruling, concluding that Mr. Dorsey had failed to prove that the settlement should be set aside or modified; denying Mr. Dorsey's motion to set aside or vacate the settlement; and held that the exceptions filed by ProTemp and Boise Cascade were rendered moot.

Subsequently, on April 26, 2017, Mr. Dorsey filed a "Motion to Amend Judgment and for New Trail [sic]." In response, ProTemp and Boise Cascade filed exceptions of res judicata, motions for sanctions, and memoranda in opposition to Mr. Dorsey's motions. After a hearing on June 12, 2017, the workers' compensation judge denied Mr. Dorsey's motions, as well as ProTemp's and Boise Cascade's exceptions of res judicata and motions for sanctions.

Mr. Dorsey thereafter appealed, and ProTemp and Boise Cascade moved to dismiss the appeal. A panel of this court issued a limited remand of the appeal in order for the workers' compensation judge to conduct a contradictory hearing and enter a ruling as to whether Mr. Dorsey timely fax-filed his motion for new trial. Dorsey v. ProTemp Staffing Solutions, Inc. , 17-793 (La.App. 3 Cir. 11/15/17), 233 So.3d 122. After the workers' compensation judge conducted the hearing and entered judgment finding that Mr. Dorsey timely filed the motion with an appropriate filing fee within the time required by La.R.S. 13:850, the panel denied the motions to dismiss the appeal. Dorsey v. ProTemp Staffing Solutions, Inc. , 17-793 (La.App. 3 Cir. 1/31/18), 237 So.3d 1195.

Accordingly, we now consider the merits of the appeal, in which Mr. Dorsey, appearing in proper person, asserts that the workers' compensation judge: 1) failed to adequately inquire into his understanding of the settlement agreement, thereby resulting in fraud and ill practices; 2-3) erred in failing to consider his claim on the merits and that benefits, penalties, and attorney fees should have been awarded; 4) erred in permitting the entry of the settlement agreement into the record at what should have been a hearing on the merits; 5-6) erred in approving the settlement agreement without adequate assurance that Mr. Dorsey was aware that it was a compromise of his claim; and 7) erred in not awarding a penalty due to the employers' alleged late payment of the sums due.

Discussion

Inquiry as to understanding of settlement

Mr. Dorsey contends that the workers' compensation judge failed to adequately inquire into his understanding of the settlement agreement. He further asserts that the workers' compensation judge erred in approving the settlement agreement without adequate assurance that Mr. Dorsey was aware that the settlement was a compromise of his claim. Mr. Dorsey alleges that the workers' compensation judge's actions constitute fraud and "Ill Practice" and allowed the "Defendants To Committ [sic] Unlawful Practice."

The procedural requirements for approval of workers' compensation settlement agreements are found in La.R.S. 23:1272, which provides, in pertinent part:

A. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers' compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding.
B. When the employee or his dependent is represented by counsel, and if attached to the petition presented to the workers' compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him; and, (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers' compensation judge shall approve the settlement by order, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.

In discussing La.R.S. 23:1272, this court has explained:

Although the procedural requirements of La.R.S. 23:1272 are mandatory, a judgment obtained in conformity therewith should be "virtually unassailable." Harrington v. Quality Steel Bldg. Erectors , 95-822, p. 6 (La.App. 3 Cir. 3/6/96), 670 So.2d 1372, 1376, writ denied , 96-1315 (La.6/28/96), 675 So.2d 1128 (quoting Smith v. Cajun Insulation, Inc. , 392 So.2d 398, 401 (La.1980) ).
Under its prior version,[ ] the statute required a district judge to "discuss" the terms of the settlement with the claimant. Now, a workers' compensation judge need only "determine" that the employee understands the settlement and that it is fair, equitable, and consistent with the workers' compensation law. If these safeguards are followed, the settlement may only be set aside for fraud or misrepresentation made by any party.

Sedgwick Claims Mgmt. Serv. Inc. v. Cormier , 02-0216, pp. 6-7 (La.App. 3 Cir. 3/26/03), 841 So.2d 1032, 1037, writ denied , 03-1185 (La. 6/20/03), 847 So.2d 1234. With this is mind, we turn to the facts of the case.

Included with the settlement documents that the workers' compensation judge received was a "Receipt and Release" signed by Mr. Dorsey and his attorney, Mr. Marceaux, which provided, in pertinent part:

[Carey Dorsey] further declares that he has been represented herein by Gregory P. Marceaux, Attorney at Law, who has advised him of all of his rights under the workers' compensation laws of the State of Louisiana and all other applicable laws, and that he fully understands these rights, and further that he understands and agrees that this settlement is intended to encompass and compromise all of his rights with regard to the above described incident.
Also came and appeared Gregory P. Marceaux, duly authorized attorney of record for CAREY DORSEY , who executed this release in order to concur in and consent to this release.

Additionally, the settlement documents contained a "Verification," which was signed by Mr. Dorsey and stated, in pertinent part:

CAREY DORSEY , who, after being duly sworn, did depose and state:
....
That his rights under the Workers' Compensation laws of the State of Louisiana have been fully explained to him;
....
That he fully understands the ramifications of this settlement and he fully understands that in the event this settlement is approved by the Office of Workers' Compensation Administration, he will accept said sum in full and final satisfaction of any and all claims which he has for workers' compensation benefits[.]

The settlement documents also contained a "Certificate," whereby Mr. Marceaux: "does hereby certify that he has discussed the terms, conditions and effects of the above and foregoing proposed settlement, with the said CAREY DORSEY , and has advised him of his rights under Louisiana Law and believes that the said CAREY DORSEY understands the terms, and conditions of the proposed settlement."

Further, as discussed above, the settlement agreement was read into the record at the November 16, 2016 hearing, at which time the following colloquy occurred:

THE COURT:
Gentlemen, you may put the terms and conditions on the record at this time.
MR. MARCEAUX:
Judge, the parties have agreed to settle the matter for $55,000; of that money, $31,000 is designated to settle the pending issues before the Court, the pending 1008; $24,000 is designated a lump sum settlement; out of $24,000, $5,000 will be set aside for an MSA, medical savings account, and of the remaining $19,000, that will be prorated over the lifetime of Mr. Dorsey's life expectancy for the reverse offset.
THE COURT:
Mr. Dorsey, you have heard the terms and conditions of the settlement, sir?
MR. DORSEY:
Yes.
THE COURT:
And you are in agreement with those terms and conditions?
MR. DORSEY:
Yes, ma'am.
....
THE COURT:
Thank you. The Court finds the settlement fair, equitable and consistent with the workers' compensation laws and, therefore, I am approving the terms and conditions of the settlement.

In the "Order of Approval of Compromise Settlement," the workers' compensation judge stated that the order was being issued upon:

[H]aving determined that the EMPLOYEE understands the terms and conditions of the settlement proceedings, and being of the opinion that the compromise settlement proposed is in the best interest of the parties, is fair and equitable ... and is in substantial accord with the terms of Title 23, Chapter 10, Revised Statutes of Louisiana[.]

The "Receipt and Release," "Verification," and "Certificate" excerpted above reveal that, in accordance with La.R.S. 23:1272, the workers' compensation judge approved the settlement after receiving an affidavit certifying that Mr. Marceaux explained to Mr. Dorsey his rights and the consequences of the settlement and certifying that Mr. Dorsey understood his rights and the consequences of the settlement. Though Mr. Dorsey suggests that the workers' compensation judge erred by not discussing the settlement with him, the workers' compensation judge was not required to do so. See Cormier , 841 So.2d 1032. Rather, the workers' compensation judge needed only to determine that Mr. Dorsey understood the settlement and that the settlement was fair, equitable, and consistent with the workers' compensation law. Id. The colloquy from the November 16, 2016 hearing, as well as the "Order of Approval of Compromise Settlement," evidence that the workers' compensation judge determined that Mr. Dorsey understood the settlement and that the settlement was "fair, equitable, and consistent with the workers' compensation law." Id. at 1037. Thus, we find that there is no merit in Mr. Dorsey's assertions that the workers' compensation judge erred by not further inquiring into his understanding of the terms of the settlement and by not more extensively ensuring that he understood that the settlement was a compromise of his claim, thereby resulting in ill practices. Moreover, we observe that Mr. Dorsey has not otherwise presented evidence of "fraud or misrepresentation made by any party" so as to justify setting aside or modifying the settlement pursuant to La.R.S. 23:1272(B).

Penalties, attorney fees, and legal interest

Next, Mr. Dorsey alleges that the workers' compensation judge erred by not assessing a penalty for ProTemp's failure to have workers' compensation insurance. He also asserts that the workers' compensation judge erred by not ordering penalties, attorney fees, and legal interest for the defendants' failure to reinstate his workers' compensation benefits. In Taylor v. Hathorn Transfer & Storage , 07-993, p. 4 (La.App. 3 Cir. 2/6/08), 976 So.2d 259, 262, a panel of this court noted:

A "compromise instrument is the law between the parties and must be interpreted according to the parties' true intent." Brown v. Drillers, Inc. , 93-1019, p. 7 (La.1/14/94), 630 So.2d 741, 748. "Thus, the intent which the words of the compromise instrument express in light of the surrounding circumstances at the time of execution of the agreement is controlling." Brown , 630 So.2d at 748.

For example, in Taylor , the parties entered into a compromise by which the claimant released the employer from any obligation to pay past or future weekly benefits, as well as medical benefits, whether or not the bills had been submitted to the employer at the time of the settlement. After the settlement, the claimant filed a disputed claim for unpaid mileage and unpaid medical bills. Id. The panel in Taylor concluded that any further claim for expenses was barred by the settlement. Id.

In this case, the settlement documents included a "Joint Petition for Compromise Settlement of Workers' Compensation Claim," which was signed by Mr. Dorsey, and which states, in pertinent part:

The EMPLOYEE has agreed to grant a full and complete release and discharge to the EMPLOYER and DEFENDANT from any and all liability for workers' compensation indemnity benefits, both temporary total and supplemental earnings, burial expenses, death benefits, penalties, medical expenses, mileage benefits, contingent expenses, other damages as they relate to this workers' compensation claim, attorneys fees, court costs, Medicare Secondary Payer reimbursement sums, and all other amounts, which might be due by reason of the alleged accident which occurred on or about September 21, 2011.

The settlement documents also included a "Verification" signed by Mr. Dorsey, which provides, in pertinent part: "[Mr. Dorsey] fully understands that in the event this settlement is approved by the Office of Workers' Compensation Administration, he will accept said sum in full and final satisfaction of any and all claims which he has for workers' compensation benefits[.]" Mr. Dorsey has not identified anything in the record demonstrating that he was misled or defrauded into signing the settlement documents. Further, Mr. Dorsey was represented by counsel when he signed the documents. See Taylor , 976 So.2d 259. Accordingly, we leave undisturbed the workers' compensation judge's conclusion that the totality of Mr. Dorsey's claim, including that for penalties, attorney fees, and legal interest, was subject to the compromise settlement.

Temporary total disability

We next turn to Mr. Dorsey's assertion regarding temporary total disability status. Mr. Dorsey argues that the workers' compensation judge erred in allowing ProTemp and Boise Cascade "To Ajudicate [sic] The Permanency of [his] Temporary Total Disability[.]" Louisiana Revised Statutes 23:1271 (emphasis added) provides, in pertinent part:

[A.] A lump sum payment or compromise settlement in exchange for full and final discharge and release of the employer, his insurer, or both from liability under this Chapter shall be allowed only:
....
(3) Upon the expiration of six months after termination of temporary total disability. However, such expiration may be waived by consent of the parties.

The "Joint Petition for Compromise Settlement of Workers' Compensation Claim" states: "Movers waive the six month waiting period of L.A.-R.S. 23:1271." Additionally, a completed "Waiver of Six Month Waiting Period for Joint Settlement and Compromise" was also submitted to the workers' compensation judge. The waiver provides, in pertinent part:

CAREY DORSEY ... who after being duly sworn did depose and state:
That he is the petitioning EMPLOYEE in these proceedings; that it has been explained to him that pursuant to La. R.S. 23:1271 a lump sum payment or compromise settlement in exchange for full and final discharge and release of the EMPLOYER, PROTEMP STAFFING SOLUTIONS, INC. , and DEFENDANT, BOISE CASCADE COMPANY , from liability under the worker's compensation laws of the State of Louisiana, shall be allowed only upon the expiration of six months after the termination of payment of benefits.
That he fully understands and intelligently waives the six month waiting period which is required under Louisiana law pursuant to La. R.S. 23:1271.

Considering the foregoing, we detect no error in the workers' compensation judge's conclusion. Rather, as evidenced above, the six month waiting period for a lump sum payment or compromise settlement after termination of temporary total disability was waived by consent of Mr. Dorsey, ProTemp, and Boise Cascade in accordance with La.R.S. 23:1271. Therefore, we find no merit in Mr. Dorsey's assignment in this regard.

Entry of the settlement at a hearing on the merits

Mr. Dorsey also asserts that the workers' compensation judge erred in permitting the entry of the settlement agreement at what should have been a hearing on the merits. However, Mr. Dorsey fails to point to a provision in the workers' compensation law prohibiting the entry of a settlement into the record on the date scheduled for a hearing on the merits. Thus, we find no merit in Mr. Dorsey's assignment of error.

Penalty allegedly due for late payment of settlement funds

Lastly, Mr. Dorsey lodges a seemingly alternative argument whereby he contends that the workers' compensation judge erred in not enforcing the settlement agreement and, in turn, by not assessing a penalty in accordance with La.R.S. 23:1201(G) due to the alleged untimely payment of the settlement funds following the November 16, 2016 hearing. In his brief to the Court, he asserts that he received a check in the amount of $19,200.00 on December 19, 2016. Mr. Dorsey states that on January 23, 2017, he received a check for $23,701.85, which constituted the remainder of the settlement. However, appellate courts will not, in general, consider issues that are raised for the first time on appeal and which were not addressed by the trial court. See Uniform Rules-Courts of Appeal, Rule 1-3 ; see also Allen v. Affordable Home Furnishings , 13-176 (La.App. 3 Cir. 11/13/13), 130 So.3d 345. Review of the record reveals that Mr. Dorsey's allegation that a penalty is owed for late payment of the settlement is presented for the first time on appeal and was not considered by the workers' compensation judge. As such, we do not consider Mr. Dorsey's assertions regarding the penalty allegedly owed for late payment of the settlement funds.

DECREE

For the foregoing reasons, the ruling of the workers' compensation judge, denying Mr. Dorsey's Motion to Amend Judgment and Motion for New Trial, is affirmed. All costs of this proceeding are assessed against Carey Dorsey.

AFFIRMED.

      In Smith v. Cajun Insulation, Inc. , 392 So.2d 398, 400 (La.1980), the supreme court summarized the prior version of La.R.S. 23:1272 :
      The procedure governing the approval of disputed workmen's compensation claims is set forth in La.R.S. 23:1272, which states in part:
      "The agreement entered into between the employee or his dependents and the employer or his insurer, shall be presented to the court for its approval upon a joint petition verified by all parties thereto. The judge to whom the petition is presented shall, in every case, discuss the settlement and its terms with the employee or his dependents. When the employee or his dependents are not represented by a lawyer ... the judge shall appoint one to advise them relative to the proposed compromise settlement. A reasonable fee for such services shall be fixed by the court and taxed as costs. The judge shall require such proof of the dispute between the parties and of the other facts set out in the joint petition as he thinks proper."


author: Judge Daniel L. Dysart

text:
    STATE of Louisiana IN the INTEREST OF R.W.
    NO. 2018-CA-0069
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 23, 2018
    Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, ASSISTANT DISTRICT ATTORNEY, Ralph Brandt, ASSISTANT DISTRICT ATTORNEY, William Dieters, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 220, Madisonville, LA 70447, COUNSEL FOR APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dale N. Atkins )
   Judge Daniel L. Dysart

On November 28, 2017, R.W. appeared with counsel for an adjudication hearing. He was adjudicated delinquent as a result of having committed a violation of La. R.S. 40:966E(1), possession of marijuana, and a violation of La. R.S. 14:69B(1), illegal possession of stolen things, to-wit: a vehicle valued at $30,000 which was the subject of a robbery or theft. R.W. appeals, arguing that the time limits to adjudicate this matter were expired. For the reasons that follow, we affirm the ruling of the trial court.

BACKGROUND:

The State filed a petition charging R.W. with the above offenses on August 28, 2017. He appeared with counsel on September 12, 2017, and pled not guilty. The trial court ordered, among other things, that R.W. enroll in the M.E.L.O.W. program (Men Engaging in Leadership Opportunities Works"), that he participate in a drug testing program, attend school, and abide by the curfew laws. As R.W. was not retained in custody, the trial court set the case for a M.E.L.O.W. review on October 17, 2017, and an adjudication hearing date of November 28, 2017.

The record indicates that R.W. did not enroll in the M.E.L.O.W. program as ordered, and that the trial court instructed the coordinator of the program to continue the attempts to contact R.W.'s mother. On October 17, 2017, the trial court issued a warrant for R.W.'s arrest for failure to participate in the program, and for failing to submit to a drug screen. The judgment also notes that R.W. was arrested on October 16, 2017, on new charges of unauthorized use of a motor vehicle and possession of stolen property, and that he had been placed back on electronic monitoring. When he was arrested on the warrant in this case on October 24, 2017, he was held in custody.

R.W.'s initial attorney withdrew from representation due to a conflict, and new counsel filed a Motion for Release on November 13, 2017. The motion was set for hearing on November 28, 2017, the original adjudication hearing date in this matter. On November 14, 2017, counsel filed a Plan for Release that was also set for hearing on November 28, 2017.

On the morning of November 28, counsel for R.W. filed a Motion for Release and Dismissal of Petition. At the adjudication hearing that same afternoon, R.W., through counsel, withdrew his previously entered plea of not guilty, and entered a plea of admission to the charges. A lengthy colloquy ensued between the court and defense counsel regarding the proposed sentence, and whether the court should order a pre-disposition investigation. R.W. addressed the court directly stating that, "I'm going to take the six months and get it over with."

At this point in the hearing, counsel for R.W. requested the court to consider the Motion for Release. Initially, the trial court indicated it would deny the motion, but then stated it would not hear the motion as a conformed copy had not been provided to the court. Counsel then requested that the plea be accepted pursuant to State v. Crosby, reserving review of R.W.'s Motion for Release. The trial court reiterated that it was not ruling on the motion at that time. Counsel then stated that R.W. wished to accept a six-month secure sentence. R.W. addressed the court personally, waived his rights verbally and initialed the Waiver of Constitutional Rights and Admission to Petition, which included the right to appeal.

Despite the waiver of the right to appeal, on December 6, the trial court denied the Motion for Release, and on December 20, 2017, signed an order granting R.W.'s Motion and Notice of Appeal.

DISCUSSION:

R.W. argues that the trial court erred in not granting his Motion for Release and Dismissal of Petition.

In his first assignment of error, R.W. argues that the trial court erred in failing to consider the motion to dismiss challenging the jurisdiction of the court to accept the plea or to consider an oral motion. Specifically, R.W. states that violations of La.Ch.C. arts. 819 and 877 are jurisdiction in nature, and thus cannot be waived. In support of his argument, R.W. cites State ex rel. R.D.C., Jr. , 93-1865 (La. 2/28/94), 632 So.2d 745. We do not agree.

Louisiana Children's Code art. 877, provides:

A. When the child is charged with a crime of violence as defined in R.S. 14:2(B) and the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within sixty days of the appearance to answer the petition. In all other cases, if the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not commenced timely, upon motion of the child, the court shall release a child in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

Art. 877 D allows a trial court to continue an adjudication hearing for good cause. In State ex rel. R.D.C., Jr. , the state was granted a continuance beyond the statutory deadline for adjudication on the ground that a witness was unavailable. Id., 93-1865, 632 So.2d at 746. Thus, contrary to R.W.'s argument, the discretion afforded the trial court indicates that this article does not create a jurisdictional issue.

In his second assignment of error, R.W. argues that the trial court erred in not granting his motion to dismiss.

The record reveals that R.W. was not held in custody thus making the ninety day commencement of adjudication provision applicable. La.Ch.C. art. 877B. However, prior to the adjudication hearing on November 28, 2018, R.W. was arrested again. The record indicates that he was arrested on unrelated charges on October 15 (and released with an electronic monitor), but was then arrested on October 24 in the subject case due to his non-compliance with previous court orders. R.W. argues that as he was at that point in custody, the provisions of La.Ch.C. art. 877A were triggered and the thirty day adjudication time limit would apply.

In this case, R.W. was adjudicated delinquent on November 28, 2017, thirty-five days after his re-arrest in this matter. On November 13, 2017, counsel for R.W. filed a Motion for Release, arguing that R.W. must be released as there was no probable cause hearing for his re-arrest as provided by La.Ch.C. art. 819. The trial court signed the order on November 27, setting it for hearing on November 28, 2017, without objection by defense counsel. On November 14, 2017, counsel for R.W. filed a Plan for Release that was also signed by the trial court on November 27, and set for hearing on November 28, 2017.

In State in the Interest of J.T. , 13-1273 (La.App. 4 Cir. 3/12/14), 2014 WL 1092350, this Court affirmed the grant of a motion for dismiss for failure to timely adjudicate. The Supreme Court reversed, finding that the prosecution had satisfied its burden of establishing good cause for an extension of the time limitation for trial. State in the Interest of J.T., 14-0762 (La. 11/14/14), 156 So.3d 1143.

We find the circumstances of this case warrant the same result. R.W.'s counsel filed the first Motion for Release on November 13, 2017, and the Plan for Release on November 14, 2017. The trial court signed both pleadings on November 27, setting both for hearing the following day (the original adjudication date). The record does not indicate that counsel for R.W. objected to either the delay in signing the pleadings or to the setting of the hearing date. As such, we find that counsel for R.W. acquiesced in the delay, serving as the functional equivalent of a good cause extension of the time limits. La.Ch.C. art. 877D.

Accordingly, for the reasons set forth above, we affirm the ruling of the trial court.

AFFIRMED

      338 So.2d 584 (La. 1976).

      La.Ch.C. art. 819. Continued Custody hearing; time limitations
      If a child is not released to the care of his parents, a hearing shall be held by the court within three days after the child's entry into the juvenile detention center or shelter care facility. If the hearing is not held, the child shall be released unless the hearing is continued at the request of the child.


author: DREW, J.

text:
    Sharunda PREVO, Plaintiff-Appellee v. Milton MOSBY, Defendant-Appellant
    No. 51,822-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 3, 2017
    MILTON MOSBY, SR., In Proper Person, Appellant
    LAW OFFICE OF ERNEST H. GILLIAM, III, Counsel for Appellee
    Before WILLIAMS, DREW, and BLEICH (Pro Tempore ), JJ.
   DREW, J.

In this child custody matter, the father appeals a judgment awarding joint custody, with the mother having domiciliary status. We affirm.

FACTS AND PROCEDURAL HISTORY

This is an appeal from a decision modifying the parties' respective child custody rights regarding their child, C.M. Milton Mosby and Sharunda Prevo apparently are the biological father and biological mother of two minor children-M.M. and C.M.

On October 6, 2016, the parties filed protective orders against each other on behalf of C.M. Milton alleged that Sharunda was responsible for "kidnapping" C.M. while he was in Milton's legal custody. Sharunda alleged that Milton had kicked C.M. out of his house, leaving C.M. homeless until she took C.M. into her home.

In ruling on these protective orders, the trial court modified the custody arrangement-by awarding joint custody, with domiciliary parent status awarded to Sharunda. The appellant was awarded "visitation" every other weekend. The previous custody arrangement had been more favorable to Milton, and was based in part on the fact that several years ago, Sharunda's former husband, Josh Vallo, raped M.M. As a result, Josh Vallo was convicted of aggravated incest in 2010.

TRIAL COURT's REASONS FOR JUDGMENT

The trial court offered oral reasons for judgment. The court noted that its duty is to do what is in the best interest of the minor child, C.M.; it also found a substantial material change in circumstances based on several facts. First, Josh Vallo is no longer a threat to the children as he is now imprisoned. Second, the court specifically found C.M.'s testimony-that he wants to live with his mother-to be "credible, true and genuine." The court also found that C.M., a 16 -year-old, has "reached the age of reason," and accorded substantial weight to C.M.'s preference. Third, the court also addressed problems that had occurred while the children were living with Milton, including the testimony of several witnesses that Milton had failed to pick up the children from the babysitter, and the children's testimony that Milton put C.M. out of the house.

APPELLANT's ASSIGNMENTS OF ERROR AND ARGUMENTS

Milton was not represented by counsel in the lower court and is not represented by counsel on this appeal. He appears to make the following arguments:

• The trial court lacked jurisdiction.
• He could not get a fair trial from any judge at the Second Judicial District Court because Sharunda is suing two judges of that court in a federal lawsuit; Judge Boddie, sitting ad hoc and not a party to federal lawsuit, ruled against Milton to placate Sharunda in regard to the federal lawsuit.
• The trial court ignored Sharunda's "kidnapping" of C.M.
• Judge Boddie erred in letting "Officer Trent Cook go October 24, 2016," without Milton first obtaining testimony from Officer Cook.
• The trial judge erred "when he did not get" Chief Mary Hoof from the Cullen Police Department; despite that she was subpoenaed for October 24, 2016, January 10, 2017, and May 28, 2017, she did not come to court one time.
• Judge Boddie erred "when he did not get Cyerra Prevo to court to testify to her Part kidnapping C.M.," despite that she was subpoenaed for May 28, 2017.

Jurisdiction of the trial court

Milton claims that the Second Judicial District Court lacked jurisdiction to modify the previous custody order regarding C.M.

District courts have original jurisdiction of all civil matters, except: (1) in worker's compensation matters; and (2) other matters specifically authorized by the Louisiana Constitution. La. Const. art. V, § 16. In this case, the district court had-and properly exercised-child custody jurisdiction regarding C.M.

Judge Boddie's alleged bias

Milton argues that it was error for Judge Boddie to hear the case because Sharunda has filed a federal lawsuit against two judges of the Second Judicial District Court, also regarding the custody of C.M. Milton implies that, in this case, Judge Boddie ruled in favor of Sharunda to placate her regarding the federal lawsuit.

However, Milton does not allege that Judge Boddie is a party to the federal lawsuit. Furthermore, we note that, because the judges of the Second Judicial District Court were recused, Judge Boddie was appointed ad hoc to hear this case. Thus, the apparent purpose of Judge Boddie's appointment was to remedy any supposed bias on the part of the Second Judicial District Court judges. We must consider that purpose to have been accomplished-indeed, the record is devoid of contrary evidence.

Additionally, Milton waived his right to object to Judge Boddie presiding over the case. La. C.C.P. art. 154 sets forth the procedure for recusing a judge, as follows:

A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recusation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing.

A party who fails to file a motion to recuse the judge despite the party's knowledge of the grounds for recusation waives his right to urge recusal upon the passage of the deadlines set forth in La. C.C.P. art. 154. Settle v. Bossier Parish School Bd. , 47,644 (La. App. 2 Cir. 7/3/12), 93 So.3d 1284, writ denied , 2012-1569 (La. 7/11/12), 92 So.3d 347.

Despite being fully aware of the federal lawsuit, Milton failed to file a motion to recuse Judge Boddie at any time in the trial court. Accordingly, Milton waived his right to complain about Judge Boddie's alleged bias.

Trial court's finding that Sharunda did not kidnap C.M.

"In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a district court's finding of fact unless that finding is clearly wrong." Hall v. Folger Coffee Co., 2003-1734 (La. 4/14/04), 874 So.2d 90. Upon review of the record, we hold that the trial court's finding that Sharunda did not "kidnap" C.M.-or have him kidnapped-was well supported by the record and not manifestly erroneous. Most importantly, C.M. himself testified that he voluntarily went to his sister's house and then his mother's house after Milton locked him out of Milton's house.

Nonappearance of witnesses

Due to the absence of witnesses, this matter was tried on three nonconsecutive days: October 24, 2016; January 10, 2017; and March 28, 2017. For the October 2016 hearing, the parties attempted to subpoena witnesses, but the subpoenas did not all issue, due to no fault of the parties. Additionally, at each of the three hearings, at least one subpoenaed witness did not appear. Accordingly, the court heard the witnesses who were present, and continued the matter to allow the parties to secure the presence of the remaining witnesses.

Milton complains that three witnesses did not appear, despite being duly subpoenaed, and that somehow constituted error on the part of the court. Specifically, Milton alleges that, despite being duly subpoenaed: (1) Officer Trent Crook failed to appear for testimony at the October 24, 2016, hearing; (2) Chief Mary Hoof of the Cullen Police Department failed to attend all three of the hearings, despite being subpoenaed for all of them; (3) Cyerra Prevo failed to attend the March 28, 2017, hearing.

Contrary to the appellant's assignments of error, Officer Trent Crook was present and did testify on October 24, 2016. Additionally, Cyerra Prevo testified on October 24, 2016; Milton cross-examined her.

At the January 2017 hearing, the court indicated that it would issue a writ of attachment for Chief Hoof. However, she failed to attend the March 28, 2017, hearing. The court was notified and instructed the bailiff to telephone Chief Hoof; the bailiff reported that there was no answer when her telephone number was called.

During the March 28, 2017, hearing, Milton never asked for a continuance on the basis of the absent witnesses. He did not ask that the record be left open until he could introduce the absent witness's testimony, and he did not otherwise object to the case proceeding to judgment without him being able to introduce their testimony.

In Hawkins v. City of Bossier, 51, 082 (La. App. 2 Cir. 1/11/17), 211 So.3d 665, the appellant claimed that he was "not allowed" to call any new witnesses at a certain hearing. The appellant subpoenaed two witnesses, who failed to appear, and on that basis, a continuance was granted. The appellant resubpoenaed those witnesses, who again failed to appear. The appellant then called one live witness and presented other evidence. The record did not show that appellant's then-attorney objected or moved to attach the two absent witnesses, or to continue the hearing until they could be found or hold the record open for their depositions. This court held that, without a timely objection to the proceedings, the issue of the witnesses' nonappearance was not properly preserved for appeal. Id.

Hawkins precludes Milton's appeal regarding the absent witnesses. As mentioned above, despite the nonappearance of these witnesses, Milton did not request a continuance, or request that the record be left open, or object the case proceeding to judgment. In short, he failed to do the necessary to preserve the issue of these witnesses' nonappearance. For this reason alone, Milton's assignment of error lacks merit as to all three "absent" witnesses.

This assignment of error lacks merit for additional reasons. Milton did in fact elicit testimony from Cyerra Prevo and Officer Trent Crook. Any deprivation of their testimony he suffered was the result of his own failure to ask all the questions he wanted to ask. What additional testimony he believes he would have elicited from any witness, and why that testimony was material to his case, is not in the record before us.

CONCLUSION

Based on the foregoing, at appellant's cost, the judgment is AFFIRMED.

      This is not a Uniform Child Custody Jurisdiction and Enforcement Act case because both parents and the child reside in Louisiana, and the record indicates that they also did so at the time of the previous custody order. Furthermore, the appellant has made no argument whatsoever supporting his claim that the trial court lacked jurisdiction.

      See, e.g., R. pp. 621, 649.

      Cyerra Prevo was served with domiciliary service in relation to March 28, 2017, hearing.