Lynkeith Zandel James v. Scott Perry, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 07-559

LYNKEITH ZANDEL JAMES

VERSUS

SCOTT PERRY, JR., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 218,396
HONORABLE BRUCE C. BENNETT, JR., DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Mark L. Ross
Attorney at Law
600 Jefferson, #512, Box 23
Lafayette, LA 70501
(337) 266-2345
Counsel for Defendants/Appellees:
Scott Perry, Jr.
Sanitation Service, Inc.

Noland James Hammond
Attorney at Law
P. O. Box 1841
Alexandria, LA 71309
(318) 443-7191
Counsel for Plaintiff/Appellant:
Lynkeith Zandel James

Attlah Deniece Burrell
Attorney at Law
730 Murray St.
Alexandria, LA 71309
(318) 443-7191
Counsel for Plaintiff/Appellant:
Lynkeith Zandel James

EZELL, JUDGE.

Lynkeith James appeals a trial court’s award of general damages. Mr. James

claims the trial court erred in not allowing him to introduce the deposition of his

treating physician into evidence to establish his claim for damages. For the following

reasons, we affirm.

FACTS

Mr. James was in an accident with a Scott Perry’s sanitation service truck on

January 22, 2004, at the intersection of Fenner Street and Overton Street. Both

drivers were attempting to make a left turn from Fenner Street onto Overton Street,

a two-lane, one-way street. While turning, the vehicles came into contact with one

another. Minor damage was noted to both vehicles.

A bench trial was held on July 21, 2005. The court found that the sanitation

truck entered Mr. James’s lane of travel, causing the accident. One hundred percent

of the fault was assessed to the sanitation company. The trial court awarded $2,000

in general damages and $3,3831.79 in special damages to Mr. James. No damages

were awarded for damage to the vehicle because it was owned by Mr. James’s

mother, who was never named as a plaintiff. Mr. James appealed the trial court

judgment.

DEPOSITION

Mr. James first complains that the trial court erred in not allowing him to

introduce Dr. Robert Rush’s deposition. Mr. James has not explained to this court

how the trial court erred. He has only argued that Dr. Rush’s deposition would

establish his right to an increase in general damages.

Normally, assignments of error not briefed are deemed abandoned. Uniform

Rules--Courts of Appeal, Rule 2-12.4. However, since Mr. James’s remaining

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arguments concern the amount of general damages awarded and rely on information

found in Dr. Rush’s deposition, we will address it briefly.

At the beginning of trial, defense counsel objected to the admittance of Dr.

Rush’s deposition, which had been taken for discovery purposes by Defendants. The

trial court ruled the deposition was inadmissible but held the case open for thirty days

for a trial deposition of Dr. Rush. The trial deposition was never taken.

A trial court has much discretion in determining whether to allow the use of

deposition testimony at trial. Bourgeois v. A.P. Green Industries, Inc., 06-87

(La.App. 5 Cir. 7/28/06), 939 So.2d 478, writ denied, 06-2159 (La. 12/8/06), 943

So.2d 1095. Absent an abuse of discretion, that decision will not be disturbed. Id.

We agree with the trial court that Dr. Rush’s deposition was not admissible.

Pursuant to La.Code Civ.P. art. 1450(3), a deposition of a witness can be used for any

purpose if the witness is unavailable, or if the witness resides at a distance greater

than one hundred miles from the place of trial, or exceptional circumstances exist,

upon application and notice.

Mr. James never established that any of these circumstances existed.

Furthermore, Mr. James was given the opportunity to take the trial deposition of Dr.

Rush but never did. The trial court did not abuse its discretion in refusing to admit

Dr. Rush’s deposition into evidence.

DAMAGES

The trial court awarded $2,000 in general damages. Mr. James claims that this

is inadequate and should be increased. In reviewing an award of general damages,

an appellate court does not determine what it considers to be an appropriate award,

but instead reviews the trier of fact’s exercise of discretion in assessing damages.

Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S.

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1114, 114 S.Ct. 1059 (1994). The adequacy of the award is considered in light of the

facts or circumstances presented by a particular case. Id. Moreover, the discretion

accorded the trier of fact has been described as “‘great,’ and even vast, so that an

appellate court should rarely disturb an award of general damages.” Id. at 1261.

The only evidence regarding Mr. James’s injuries was his own testimony. He

testified that he went to Rapides General Hospital the day after the accident. Medical

records indicate that he complained of pain in his right shoulder, upper and lower

back, hips, and occasional numbness in his left foot. X-rays revealed no problems.

Several days later he went to St. Frances Cabrini Hospital complaining of back

pain. His request for narcotic pain medication was denied, and he was told to seek

treatment at Huey P. Long for pain management.

Mr. James testified that he then went to see his family doctor, Dr. Rush. Dr.

Rush prescribed physical therapy. Mr. James continued treatment with Dr. Rush for

six to seven months. A note from Dr. Rush indicates that he diagnosed Mr. James

with cervical and lumbar strains. Records from the Louisiana Physical Therapy

Centers indicate that Mr. James received treatment for approximately two months.

As observed by the trial court, Mr. James never testified to any pain or

suffering as a result of the accident. Other than the above evidence, there is no

medical testimony about the effects of this accident on Mr. James. We cannot say

that the trial court abused its discretion in its award of general damages.

The judgment of the trial court is affirmed. Costs of this appeal are assessed

to Lynkeith James.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3
Uniform Rules, Court of Appeals.

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