author: | p,JAMES L. CANNELLA, Judge.

text:
    Marilyn PATERNOSTRO v. OCEAN TECHNICAL SERVICES, INC.
    No. 04-CA-515.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Larry P. Boudreaux, Sr., Thibodaux, LA, for PlaintifiyAppellant.
    Henry W. Kinney, III, Tara E. Clement, Kinney & Ellinghausen, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, CLARENCE E. McMANUS.
   | p,JAMES L. CANNELLA, Judge.

The Plaintiff, Marilyn Paternostro, appeals from the trial court ruling in favor of the Defendant, Ocean Technical Services, Inc., granting exceptions of no cause of action and lack of subject matter jurisdiction. For the reasons which follow, we reverse and remand.

The Plaintiff timely filed a petition in the Twenty Fourth Judicial District Court for the Parish of Jefferson, asserting a claim against the Defendant for injuries that she suffered on July 27, 2002, when she slipped and fell on the Defendant’s premises while performing janitorial work. In response to the petition, the Defendant filed “Defendant’s Peremptory Exception of No Cause of Action and Declinatory Exception of Lack of Jurisdiction over the Subject Matter of the Court.” The basis of both exceptions was the contention that the Plaintiff was an employee of Defendant’s and, therefore, her claim for injuries is exclusively within the Louisiana Workers’ Compensation Act, under La. R.S. 23:1201 et seq. The Plaintiff opposed the motion. The parties agreed to forego a hearing and have the matter decided on the petition, exceptions and memoranda. | aAfter submission of the matter the trial court rendered judgment on March 12, 2004 granting the exceptions. It is from this judgment that the Plaintiff appeals.

On appeal the Plaintiff argues that the trial court erred in granting the exceptions. More specifically, she argues that the exception of no cause of action is to be considered solely on the face of the petition and that the petition herein clearly states a cause of action against the Defendant. Moreover, the burden is on the Defendant to prove the grounds of the exception to the court’s jurisdiction and, upon submitting the matter on memorandum, the Defendant did not meet his burden. The evidence that was submitted was done so by the Plaintiff and consisted of the Defendant’s motion for summary judgment filed in response to her workers’ compensation claim. The motion for summary judgment was grounded on the argument, with supporting affidavit, that the Plaintiff was an independent contractor and not an employee of the Defendant’s within the meaning of the Workers’ Compensation Act. The Plaintiff argues that this mandates denial of the exceptions.

The Defendant argues that the Plaintiff accepted a settlement to the workers’ compensation claim and, therefore, she should be barred from asserting the instant tort claim. It argues that her acceptance of the settlement is tantamount to an admission that she was an employee of the Defendant’s. Further, the defense argues that the Plaintiffs “Petition alleges that she was injured in the course and scope of her employment with O-Tech.” On this basis, the Defendant argues that the trial court was correct in granting the exceptions.

It is well settled that the function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Darville v. Texaco, Inc., 447 So.2d 473 (La.1984). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. |/Therefore, the court reviews the petition and accepts well pled allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Hall v. Zen-Noh Grain Corp., 01-0324 (La.4/27/01), 787 So.2d 280; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993); Kuebler v. Martin, 578 So.2d 113 (La.1991); Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984); Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975).

In reviewing a trial court’s ruling sustaining an exception of no cause of action, the reviewing court conducts de novo review because the exception raises a question of law. Jackson v. State ex rel. Dept. of Corrections, 00-2882 (La.5/15/01), 785 So.2d 803; City of New Orleans v. Board of Commissioners of the Orleans Levee Dist., 93-0690, p. 29 (La.7/5/94), 640 So.2d 237, 253. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording to the plaintiff the opportunity of presenting evidence at trial. Jackson, supra; Parish of Jefferson v. SFS Const. Group, Inc., 01-1118 (La.App. 5th Cir.2/13/02), 812 So.2d 103, unit denied, 02-0791 (La.5/31/02), 817 So.2d 95.

After reviewing the petition in this ease we find that it states a cause of action upon which relief could be granted. The Plaintiff does not, as argued by the Defendant, state that she was an employee of the Defendant’s at the time she was injured. The petition avoids stating that. The pertinent part of the petition provides:

On and prior to July 27, 2002 petitioner was employed as a janitor with the responsibility of cleaning and maintaining the premises owned by the defendant located at 1140 Peters Road, Harvey, Louisiana in this Parish and State.
On July 27, 2002 while performing her duties as a janitor, petitioner slipped and fell on the premises owned | Bby the defendant resulting in serious and painful personal injuries.
The defendant is strictly liable to petitioner for the above-described incident and the resulting damages because the condition, which caused petitioner’s slip and fall, was unreasonably unsafe condition of which the defendant had actually [sic] constructive notice.
In the alternative, petitioner avers that the sole and proximate cause of her injury and resulting damages was the negligence of the defendant through its agents, employees and or representatives, that consisted of the following, but not exclusive, particulars:
1. In failing to properly maintain and repair the steps and other means of ingress and egress to its commercial building;
2. In failing to warn petitioner of the unreasonably unsafe condition that caused petitioner’s slip and fall and resulting damages;
3. In failing to barricade or cord off the area where the unsafe condition existed so as to prevent petitioner’s slip and fall;
4. Any and all other acts or omissions constituting negligence that will be proven at the trial of this case.

As stated above, every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency. No evidence outside of the petition is to be considered. This petition does not allege or state that the Plaintiff was an employee of the Defendant’s at the time of the accident. As written, the petition allows for the Plaintiff to prove that she was on the Defendant’s premises in a capacity other than as an employee. Thus, we find that, on the face of the petition, the law affords a remedy on the facts alleged, and the exception of no cause of action filed by the Defendant in response to the petition, lacks merit and should have been denied.

On the exception asserting the lack of the court’s jurisdiction over the subject matter, the objecting party may introduce evidence in support of the exception. La. C.C.P. art. 930. However, in this case, none was offered. To the contrary, the record indicates that the parties submitted the matter on the petition, | ^exception and memoranda. Considering the allegations in the petition and the unsupported allegations made in the defense exception and memoranda, we find that the exception should have been denied.

As stated above, the petition does not state that the Plaintiff was an employee of the Defendant’s at the time of her injury. Her cause of action as asserted is in strict liability or negligence. As a tort suit, the Twenty-Fourth Judicial District Court has jurisdiction over the case. La. Const. Art. 5, § 16. While the Defendant alleges in this proceeding that the Plaintiff was his employee at the time of the accident and that, therefore, the Plaintiffs claim comes exclusively within the jurisdiction of the workers’ compensation court, we find nothing in this record to support this contention. Similarly, the defense argues that because the Plaintiff accepted a settlement of her claim in the workers’ compensation court this lawsuit is precluded. However, as with the other argument, there is no evidence in the record to support the argument. Therefore, we find that the exception to the lack of the trial court’s subject matter jurisdiction has no merit and should have been denied.

Accordingly, for the reasons stated above, we reverse the trial court judgment granting the Defendant’s exceptions of no cause of action and lack of jurisdiction over the subject matter of the action and order them denied. The case is remanded for further proceedings consistent with the views expressed herein. Costs of appeal are assessed against the Defendant.

REVERSED AND REMANDED.

      . Contrary to the defense argument, the evidence that was in the record shows that the Defendant defended the workers’ compensation claim with a motion for summary judgment and attached affidavit, arguing that the Plaintiff was not an employee but an independent contractor.

      . We note that this argument, if provable, might better be raised as a res judicata exception.


source: Caselaw Access Project

author: | ^WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Oscar INTERIANO v. FERNANDO PASTRANA CONSTRUCTION.
    No. 04-CA-430.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.
    Christopher R. Schwartz, Metairie, LA, for Plaintiff/Appellant.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, Jade C. McKeough, Cov-ington, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | ^WALTER J. ROTHSCHILD, Judge.

In this worker’s compensation dispute, the employer, Fernando Pastrana Construction (“FPC”), filed a Disputed Claim for Compensation on October 30, 2003, arguing that the claimant, Oscar Interiano (“Interiano”), failed to cooperate with vocational rehabilitation. On that same date, FPC also filed a “Motion to Reduce Benefits for Failure to Cooperate with Vocational Rehabilitation,” pursuant to LSA-R.S. 23:1226. On November 10, 2003, In-teriano filed an opposition memorandum, asserting that the vocational counselor, Dawn Paradis, refused to sign a letter/agreement proposed by Interiano’s counsel, setting forth rules and procedures to govern the relationship between the claimant and the vocational counselor, in accordance with Crain Brothers, Inc. v. Richard, 02-1342 (La.App. 3 Cir. 4/9/03), 842 So.2d 523, and the provisions of LSA-R.S. 23:1226. Therefore, he asserts that he has not refused vocational rehabilitation; rather, it is the vocational counselor who has refused to comply with the conditions of the Crain decision.

|3On January 23, 2004, the “Motion to Reduce Benefits for Failure to Cooperate with Vocational Rehabilitation” was heard before the worker’s compensation judge. At the hearing, counsel for the claimant argued that Interiano should not be required to participate in vocational rehabilitation until the vocational counselor is ordered to sign the agreement setting forth rules and procedures for Interiano’s vocational rehabilitation. Counsel for FPC responded that the statute governing vocational rehabilitation, LSA-R.S. 23:1226, does not require a vocational rehabilitation counselor to agree to certain terms prior to performing rehabilitation services. Rather, he argues that the employee may file a claim with the Office of Worker’s Compensation, under LSA-R.S. 23:1226(B)(3)(a), if a dispute arises regarding the quality of the services of the vocational counselor or the necessity for such services.

At the conclusion of the hearing, the worker’s compensation judge stated in pertinent part:

.... there is no indication that the vocational rehabilitation services are not needed. And there’s also no indication at this time, since she has not performed the services, as to whether or not her performance of these duties are appropriate or inappropriate. It’s premature for us to even consider that at this point in time. The court is not going to render a decision based on speculation as to how the vocational rehabilitation counselor will do her job. The court is going to assume that she does it appropriately. If not, then defendant has all rights— claimant has all rights reserved to them to pursue this matter at that point in time. But at this point in time the parties will proceed as indicated. If in fact the claimant does not cooperate with the vocational rehabilitation efforts, then the court will consider at that time to reduce her [sic] benefits accordingly in accordance with the statute.

On January 29, 2003, the worker’s compensation judge signed a judgment ordering “that Oscar Interiano cooperate with the vocational rehabilitation counselor” and “that failure to cooperate with vocational rehabilitation will result in reduction in indemnity benefits as provided by law.” It is from this ruling that the claimant, Oscar Interiano, appeals.

^DISCUSSION

On appeal, Interiano asserts that the hearing officer erred in not following the Crain decision, because Crain outlined the correct procedures for performing vocational rehabilitation and the condition of signing the letter is reasonable.

In Crain, the Third Circuit noted that LSA-R.S. 23:1226(E) requires a “fifty percent reduction in weekly compensation for refusal to accept rehabilitation as deemed necessary by the hearing officer.” (Emphasis in original). Crain, supra at 525. The Court further stated:

We have reviewed 23:1226 and find this provision when considered in its entirety does not restrict the WCJ from exercising her inherent power to require that a vocational counselor, selected pursuant to the statute, act in accordance with the rules regulating his professional conduct to assure his integrity, honesty and fair dealing in rendering the services prescribed. We cannot say this conclusion was manifestly erroneous, and affirm the decision of the trial court-(Emphasis added.)

Crain, supra at 525-526. ■

In Crain, the Third Circuit did not hold that the conditions set forth by the claimant’s counsel were mandatory in every case or that they should be “deemed necessary by the hearing officer” in every situation. The Court simply found that LSA-R.S. 23:1226 does not restrict the worker’s compensation judge from requiring a vocational counselor to agree to certain terms, and the Court did not find manifest error in the worker’s compensation judge’s finding that the conditions set forth by the claimant’s counsel were reasonable.

LSA-R.S. 23:1226 does not require a vocational counselor to agree to certain conditions prior to providing vocational rehabilitation services. Rather, LSA-R.S. 23:1226(B)(3)(a) provides that the employee may file a claim with the Office of Worker’s Compensation if a dispute arises regarding the quality of the services of the vocational counselor or the necessity for such services. (Emphasis added.) Further, the Third Circuit’s decision in Crain, which is persuasive but not binding Ron this Court, does not require the vocational counselor to agree to certain terms prior to the performance of rehabilitation services.

In the present case, the worker’s compensation judge did not find that it was necessary for the vocational rehabilitation counselor to sign an agreement proposed by Interiano’s counsel, setting forth procedures, rules, and conditions for the rehabilitation services. Accordingly, she ordered Interiano to cooperate with the vocational rehabilitation counselor without requiring the counselor to sign the agreement proposed by Interiano’s counsel. Considering the law on this issue arid the record before us, we cannot say that the trial court’s decision was manifestly erroneous or clearly wrong.

DECREE

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

AFFIRMED.


author: LMARION F. EDWARDS, Judge.

text:
    Kevin P. DONAHOE v. JEFFERSON COUNCIL ON AGING, INC.
    No. 04-CA-178.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      John M. Holahan, Jr., Metairie, LA, for Plaintiff/Appellant.
    Amanda H. Carmon, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   LMARION F. EDWARDS, Judge.

Plaintiff/Appellant, Kevin Donahoe, appeals a ruling from the office of worker’s compensation, District 7, which denied his claim for benefits based upon a finding that he was not injured in the course of his employment. For the following reasons, the judgment of the court is affirmed.

FACTS AND PROCEDURAL HISTORY

Plaintiff/Appellant, Kevin Donahoe (“Do-nahoe”,) was employed by the Jefferson Council On Aging, Inc. (“JCOA”,) in Jefferson Parish as a senior center supervisor. On July 18, 2001, Donahoe filed a Disputed Claim For Compensation, alleging that he injured his back on May 11, 2001, while lifting boxes for the JCOA. Trial proceeded before the Honorable Sylvia Steib on June 23, 2003. At the conclusion of trial, the court found: 1) That Donahoe was not injured by accident during the course and scope of his employment on May 11, 2001; 2) Donahoe failed to meet the requisite burden of proof to show a connection between |shis injuries and his employment, and; 3) Donahoe was not entitled to any worker’s compensation benefits.

Donahoe timely filed the present appeal.

LAW AND ANALYSIS

On appeal, Donahoe raises the following assignments of error: 1) That the court erred in concluding that there was not an accident as defined by the LWCA; 2) The court erred in failing to accept Donahoe’s uncontroverted and corroborated testimony regarding the accident; 3) It was an error to fail to award lost wage benefits from the alleged date of disability to the present considering the nature of the injury and the fact that no attempt was made to subsequently offer him a job, and; 4) The court erred in failing to award penalties, attorney’s fees and interest from the date of each payment considering that the employer had knowledge that he had back surgery and was unable to return to work.

The appellate court’s standard of review in a workers’ compensation case is governed by the manifest error or clearly wrong standard. This standard precludes setting aside a trial court’s or a jury’s finding of fact in absence of manifest error or unless it is clearly wrong. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. The reviewing court is compelled to review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. The Supreme Court has emphasized that it is crucial that the reviewing court keep in mind that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its | ¿entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

The plaintiff in a workers compensation suit has the burden of proving, by a preponderance of the evidence, that there is a work related disability. The testimony of the worker alone may be sufficient to discharge this burden of proof, absent other evidence which discredits or casts doubt on the worker’s version of the incident and the testimony is supported by corroborating circumstances. The corroborating evidence may be provided by the testimony of spouses, co-workers, friends or medical evidence. In evaluating this evidence, the uncontradicted testimony of a witness, even if the witness is a party, should be accepted as true, in the absence of circumstances casting suspicion on the reliability of the testimony.

In the present case, Donahoe testified at trial. He stated that he first became an employee of the Jefferson Council On Aging in July of 1999, and was hired to supervise nine senior citizen activity centers in Jefferson Parish. Donahoe said that physical activity was a required part of his job, in particular moving boxes of goods or computer boxes. Donahoe said that on May 11, 2001 he was moving approximately 75 boxes of goods, when his back started hurting. He claims that he had never had pain in that particular area of his back prior to May 11, though he had “strained” his back in January of 2001.

Donahoe went to see Dr. Henry Eiser-loh on May 18, 2001, who was the same physician who had treated him for the previous injury in January 2001. Donahoe testified that he told Dr. Eiserloh that he had injured his back lifting pboxes at work. At the suggestion of Dr. Eiserloh, and MRI was conducted which revealed damage to several discs in Donahoe’s back.

Donahoe also sought a second opinion from Dr. Robert Mímeles. Donahoe indicated to Dr. Mímeles that he had a history of back pain, but that a pain in his left leg had only begun the month before. Dona-hoe said that he indicated to Dr. Mímeles that he had been injured at work. Dr. Mímeles recommended that Donahoe consult a neurosurgeon, Dr. Dowd, and that he stay away from work until that consultation had been completed.

Donahoe met with Dr. Dowd on approximately August 10, 2001. Dr. Dowd recommended physical therapy and epidural injections. At that time, Donahoe had stopped working at the Jefferson Council On Aging as of mid-July, 2001, because of the pain that he felt. However, on October 15, 2001, Dr. Dowd advised Donahoe that he should return to light duty. After undergoing surgery for a disc repair at L4-L5-S1 in November of 2001, Donahoe was discharged on January 11, 2002. Do-nahoe stated that he was officially terminated from the Jefferson Council On Aging on January 11, 2002 and that although he is able to work with some restriction, he was never offered any other ..type of light-duty employment.

Donahoe said that none of his medical bills were paid for by workers’ compensation, but were instead paid for under his personal insurance policy through Blue Cross.

On cross examination, Donahoe affirmed that the report that he had submitted for the accident which allegedly took place on May 11, was turned in on July 10, 2001. Donahoe said that the report also indicates that he had been injured in an accident at the Jefferson Council On Aging on January of 2001 while transporting boxes. Do-nahoe treated with Dr. Eiserloh for that incident as well, but admitted that when he treated with Eiserloh on that occasion, he told Dr. Eiserloh that he had been injured at home. Donahoe also admitted that he had been treated |fifor lower back pain in June of 2000. Donahoe acknowledged that in his previous deposition, he said that no one was with him when he allegedly injured his back in the May 2001 incident.

When questioned about why neither Dr. Eiserloh nor Dr. Mímeles had not made any notes in his medical chart regarding an accident at work, Donahoe claimed that he did not know since he had informed both of them about the details surrounding his injury.

Cherie Jefferson, a claims representative for the LWCC also testified at trail. Jefferson stated that Donahoe informed her that there were no witnesses to the alleged accident. Jefferson said that other than one visit to Dr. Dowd, LWCC did not pay for any of Donahoe’s medical care, as the medical records from Dr. Eiserloh and Dr. Mímeles indicated that Donahoe had not reported a work related accident to them. On cross examination, Jefferson said that she informed Donahoe on August 28, 2001, of the LWCC’s decision not to provide him benefits. Jefferson said that because of the records provided by Dr. Eiserloh and Dr. Mímeles, she did not find later reports by Dr. Dowd, which claimed that Donahoe’s injury was work related, to be credible.

The deposition of one of Donahoe’s coworker’s Harvey Sandifer, was also entered into evidence as well. Sandifer gave the following testimony:

Q: Who was in the conference room?
A: Kevin Donahoe. And there was nobody else in there. He was — they had tables around the conference room ... And on the floor there were a couple of boxes. He’s wanting to know if I could help him lift. Those boxes were, I’d say, two foot wide, about two foot high, and approximately four foot long. What was in them, I don’t know, but they were heavy. So I reached down, helped him pick them up. Now, when— I picked up — after picking up the first one, I saw the man lean and grab his back. All right? And I says, “Are you all right?” He says, “Yeah. I’m okay.”... Kevin came up the elevator, came into my office, told me he hurt his back.
Q: Did he tell you that he had injured his back lifting those boxes?
|7A: He said he hurt his back downstairs.

In his first and second assignments of error, Donahoe argues that that the court erred in concluding that there was not an accident as defined by the LWCA, and in failing to accept Donahoe’s testimony regarding the alleged accident. We disagree.

After a review of the record, we cannot say that the trial court’s judgment was manifestly erroneous on these issues. As previously stated, in a workers’ compensation claim, the claimant has the burden of proving the occurrence of a work-related accident. In this case, Donahoe’s assertions contain several inconsistencies on their face, which the trial court apparently found to render his claim not credible. Donahoe’s testimony, that the alleged May 11, 2001 accident was not witnessed, was contradicted by the testimony of Harvey Sandifer, who said that he was right there when the alleged accident took place. Do-nahoe next claims to have been injured on that date, yet he failed to make a contemporaneous report of the injury to his employer, and, in fact did not make a report to his employer until several months later. And while Donahoe testified at trial that he did not report the injury because he did not “think it was going to be that severe,” in the meantime he sought medical attention for his condition. The reports from his treating physicians prior to informing his employer about his alleged injury, however, have no indication that that Donahoe was being treated for a work-related injury.

Where there is a conflict in testimony, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review” even though the appellate court may feel that its own evaluations and inferences are ^reasonable. Deference is due to the factfinder’s determinations regarding the credibility of witnesses “for only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.”

Considering the foregoing, we find no error in the workers’ compensation judge’s decision to give weight to the existence of inconsistencies and the conclusion that the evidence casts doubt on Donahoe’s version of the events at trial. Accordingly, we find appellant’s first two assignments to be without merit.

In light of our finding that the trial judge did not err in finding that work-related accident did not occur, we will pre-termit discussion on Donahoe’s remaining assignments of error.

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

AFFIRMED.

      . Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992).

      . Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993).

      . Mart v. Hill, 505 So.2d 1120 (La.1987); Rosell, 549 So.2d at 840; Stobart, 617 So.2d 880.

      . Id.

      . Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

      . Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992); Kramer v. Johns-Manville Sales Corp., 459 So.2d 642 (La.App. 5th Cir.1984).

      . Bruno v. Harbert International, Inc., supra.

      . Bruno v. Harbert International, Inc., supra.

      . Bruno v. Harbert International, Inc., supra; Clakeley v. Ochsner Foundation Hospital, 478 So.2d 1335 (La.App. 5th Cir.1985).

      . Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993).

      . Rosell v. ESCO, 549 So.2d 840 (La.1989).


author: RED WARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Glenn A. BRUMFIELD.
    Nos. 04-KA-552, 04-KA-553.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Cameron Mary, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Holli Herrle-Castillo, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   RED WARD A. DUFRESNE, JR., Chief Judge.

The Jefferson Parish Grand Jury returned an indictment charging defendant, Glenn Brumfield, with one count of first degree murder, in violation of LSA-R.S. 14:30. Thereafter, the Jefferson Parish District Attorney’s Office amended the charge to second degree murder, a violation of LSA-R.S. 14:30.1, and also filed a separate bill of information charging defendant with attempted second degree murder, in violation of LSA-R.S. 14:27 and LSA-R.S. 14:30.1, for a different victim stemming from the same set of circumstances. These two charges were consolidated and proceeded to trial before a twelve person jury. After considering the evidence presented, the jury found defendant guilty as charged on both counts.

The trial judge sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the second degree murder conviction, and fifty years at hard labor on the attempted murder conviction, to run concurrently. Defendant now appeals, challenging the sufficiency of the evidence used to convict him.

\,FACTS

On July 14, 2000, defendant shot Betty Pate and Kerry Dickerson in the parking lot of New Orleans Shipyard. As a result of his injuries, Dickerson died. Defendant admits to shooting the victims, but claims that he committed the acts in sudden passion or heat of blood upon finding out about Dickerson and Pate’s romantic relationship.

At trial, Betty Pate testified that she had ended her relationship with defendant in May or June of 2000, and started dating Dickerson, defendant’s friend, in July. Defendant apparently learned about the relationship one to two weeks before the shooting. Ms. Pate testified that, on July 14, 2000, when she arrived home, she learned from her daughter that defendant had called several times. Defendant called back around 2:15 or 2:30 a.m. and asked if he could pick up the couple’s six year old son to go fishing with him. Later, while going to pick up Dickerson from work at New Orleans Shipyard, she noticed defendant’s Blazer parked at a Vietnamese store on River Road. A few minutes after she arrived at the shipyard, defendant drove into the parking lot, parked next to her van, and exited. Defendant, who was holding a gun, approached Ms. Pate while she was seated in her vehicle and said, “B-1 told you I was going to kill your f-ing ass.” Defendant then aimed his gun and began shooting at Ms. Pate. He continued to shoot until the gun was empty. Then he put in another clip and shot her two more times. She was shot at approximately ten times, and was hit three times.

As the defendant was firing at Ms. Pate, the other victim, Kerry Dickerson, ran toward defendant and tried to disarm him. Defendant fired the gun several more times, and as Dickerson ran away, defendant continued to shoot at him. Dickerson died at the scene as a result of his injuries.

14Witnesses, Reginald Newman and Bryon Adams, both testified that, on the morning of July 14, 2000, they saw a man exit his vehicle in the shipyard’s parking lot, yell and curse at a female, and then shoot her. Newman saw the shooter stand close to Pate’s car and fire multiple shots as she sat inside. Neither of the witnesses heard the woman say anything to the shooter. Adams saw Dickerson approach the shooter when he stopped to reload. Dickerson was wounded in the throat, and the shooter continued firing as Dickerson tried to run away. Dickerson did not say anything to the shooter.

Defendant was apprehended shortly after the incident and was brought to the police station where he gave two statements. In his statements, defendant claimed that Ms. Pate had a gun and that she shot at him, prompting him to run to his car to get his gun. With regard to Dickerson, defendant claimed that Dickerson charged at him and tried to get the gun. Defendant stumbled back and shot the gun low between Dickerson’s legs and hip in order to get Dickerson off of him.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, defendant challenges the sufficiency of the evidence used to convict him of second degree murder and attempted second degree murder. Defendant asserts that he committed the acts in sudden passion or heat of blood upon finding out about Dickerson and Pate’s romantic relationship, and therefore, he should have been convicted of the lesser included charges of manslaughter and attempted manslaughter.

The standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 660 (1979).

|sIn order to prove second degree murder, the state must show the killing of a human being, and that defendant had the specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1. To prove an attempted second degree murder, the state must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. LSA-R.S. 14:27:30.1. State v. Bishop, 01-2548 (La.1/14/03), 835 So.2d 434.

Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent to inflict great bodily harm is sufficient to support a murder conviction, but attempted second degree murder requires a specific intent to kill. State v. Cepriano, 00-213 (LaApp. 5 Cir. 8/29/00), 767 So.2d 893, 898. Specific intent may be inferred from the circumstances and actions of the defendant, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Keating, 00-51(La. App. 5 Cir. 10/18/00), 772 So.2d 740, 743, writ denied, 00-3150 (La.10/12/01), 799 So.2d 494. A defendant’s act of aiming a lethal weapon and discharging it in the direction of his victims supports a finding by the trier of fact that the defendant acted with specific intent to kill. State v. Hidalgo, 95-319 (La.App. 5 Cir. 1/17/96), 668 So.2d 1188,1197.

In order for the defendant to have been convicted of manslaughter and attempted manslaughter, the evidence would have to have shown that the homicide and attempted homicide, which would have been second degree murder and attempted second degree murder, were committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. LSA-R.S. 14:31(A)(1); State v. Hicks, 01-1064 (La. App. 5 Cir. 4/10/02), 817 So.2d 192, 197, writ denied, State v. Hicks, 02-1580 (La.5/30/03), 845 So.2d 1068. Sudden passion and heat of blood distinguish manslaughter from murder, but they are not elements of the offense. Rather they are mitigatory factors which may reduce the grade of the offense. In order to be entitled to the lesser verdict of manslaughter, the defendant is required to prove the mitigatory factors by a preponderance of the evidence. State v. Johnson, 01-1362 (LaApp. 5 Cir. 5/29/02), 820 So.2d 604, 610, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32. However, the provocation shall not reduce the homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. LSA-R.S. 14:31(A)(1); State v. McKinney, 99-395 (LaApp. 5 Cir. 11/10/99), 749 So.2d 716, 721.

In the present case, defendant learned of the relationship between Dickerson and Pate, one to two weeks before he shot them. On the day of the shooting, defendant went through a regular workday beginning sometime after 2:00 p.m. and ending around 1:30 a.m. He was not angry when he spoke to his children in the early morning hours of July 14, 2000, and to Pate between 2:15 and 2:30 a'.m. After-wards, defendant waited at a Vietnamese store on River Road. When Ms. Pate’s van passed by, he followed her into the parking lot of New Orleans Shipyard. He exited his vehicle, immediately began cursing at her, and reminded her that he told her he was going to kill her. Defendant aimed and shot at her until the gun was empty. He then reloaded and shot at her again, for a total of ten times. While defendant was reloading the gun, Dickerson attempted to disarm him and was shot. Defendant continued to shoot at Dickerson as he tried to run away.

In an attempt to prove that the offenses were committed in sudden passion or heat of blood, defendant presented the testimony of his father, Willis Brumfield, and his mother, Gail Brumfield. Willis Brumfield testified that his son was very upset about Ms. Pate going out with his friend. Gail Brumfield testified that on |7Thursday, the day before the shooting, her son came to her very upset about Pate and Dickerson’s relationship. She claimed that he was furious and ready to explode.

The jury rejected defendant’s argument that he acted in sudden passion or heat of blood upon finding out about Dickerson and Pate’s relationship. This determination is supported by the evidence. Defendant had learned about the relationship one to two weeks before the shooting. Over eleven hours elapsed between the time defendant spoke to his mother and the time of the shooting. On the day of the shooting, defendant went through a regular workday. He was not angry when he talked to his children or Ms. Pate in the early morning hours of July 14, 2000.

Viewing the evidence presented at trial in the light most favorable to the prosecution, we find that the state proved the essential elements of second degree murder and attempted second degree murder beyond a reasonable doubt. We also find that defendant failed to prove that he acted in sudden passion or heat of blood. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review of the record reveals that the trial judge did not accurately advise defendant of the period within which to file an application for post conviction relief. According to LSA-C.Cr.P. art. 930.8, a defendant has two years from the date his conviction is final to apply for post conviction relief, not two years from the sentencing date. Therefore, we remand to the district court with instructions to inform defendant of the proper provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to defendant within |sten days of the rendition of this opinion, and to file written proof in the record that defendant received the notice. State v. Hutchinson, 02-0060 (La.App. 5 Cir. 5/15/02), 817 So.2d 500, 509.

Accordingly, defendant’s convictions and sentences are affirmed, and the matter is remanded with instructions.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS.


author: I «SOL GOTHARD, Judge.

text:
    Wanda MARKS, Individually as the Administrator of Her Minor Child, Antoinette Love v. Jerome JENKINS and His Insurance Company, State Farm Insurance Company.
    No. 04-CA-217.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Fred R. Defrancesch, Laplace, Louisiana, for Plaintiff/Appellant.
    Richard L. Edrington, Laplace, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   I «SOL GOTHARD, Judge.

The plaintiffs, Wanda Marks, individually and as the administrator of her minor child, Antoinette Love, appeal from the trial court’s judgment finding for defendants Jerome Jenkins and his insurance company, State Farm Insurance Company and dismissing all claims found in plaintiffs’ suit. For the reasons that follow, the judgment of the trial court is affirmed.

The plaintiffs filed a “Petition for Personal Injuries and Damages” against defendants, alleging that Wanda Marks and passenger Antoinette Love (Ms. Marks’ then less than one year old granddaughter) were entering the parking lot at River Parish Hospital in St. John the Baptist Parish when, suddenly and without warning, defendant Jerome Jenkins backed out of a parking space and struck Ms. Marks’ vehicle causing Ms. Marks and Ms. Love to sustain serious personal injuries and damages.

We note that there is confusion over the relationship between Ms. Marks and Antoinette Love. In the petition it is alleged that Antoinette Love is the minor child of Ms. Marks. However, at trial Ms. Marks testified that Antoinette is her [ ^grandchild and gives no indication that she either obtained legal custody of, or adopted the child. Since defendant has not raised the dilatory exception of lack of procedural capacity pursuant to La. C.C.P. Art. 926, any questions of procedural capacity are waived and will not be considered by this court. La. C.C.P. Art. 926B.

After a trial on the merits the trial court found in favor of the defendants and dismissed plaintiffs’ suit. It is from that judgment that plaintiffs appeal.

At trial plaintiff Wanda Marks testified as follows: Ms. Marks stated that on November 30, 2001 she and her granddaughter Antoinette Love were involved in a motor vehicle accident in the parking lot of River Parish Hospital in LaPlace. She was on her way to visit a relative in the hospital but could not remember who it was. Ms. Marks “pulled into the parking lot and came to a complete stop, waiting on the driver that was in the parking lot to come out, and he just backed into me,” the back part of his car hitting the front part of her car, causing damage to her car. When asked what happened to her body, Ms. Marks stated that she remembered “just a quick jerk and going.” When asked if she was aware of whether her granddaughter was hurt or not, she stated that “[s]he was just crying.” Ms. Marks was not certain whether her granddaughter was in a child-restraining seat or sitting in the passenger’s seat of the car with a seatbelt on. She stated that she was preparing to get out of the car to go into the hospital and could not remember if she had already “unstrapped” the baby to get out of the car. Ms. Marks testified, “I don’t know if I took her out of the car seat at the time, or if I just unbuckled her or what. I’m not sure what I was doing.” She further stated that she was not sure what happened inside the car, but recalled her granddaughter screaming and about five or six people coming to the car, including defendant, Jerome Jenkins.

According to Ms. Marks neither she nor the police noted the names of the people who came to her car after the accident. She testified that she spoke briefly |4to Mr. Jenkins before he left and told him she was going to call the police. On cross-examination Ms. Marks testified that she did not remember Mr. Jenkins offering to call the police on his cell phone. When the police arrived she explained to them what happened. On cross-examination, Ms. Marks was not sure if the police took her name, nor was she sure whether they asked her if she was hurt. She stated, “I’m not sure what I told the police at that time.” Included in evidence is a completed St. John the Baptist Sheriffs Office “Private Property Crash Report” indicating that there was no property damage and that the condition of the plaintiff driver was normal. She testified that the damage to her vehicle was medium and said that she later gave the vehicle to her sister, without having it repaired. She further testified that she did not look at Mr. Jenkins’ vehicle, was not sure if she got out of her vehicle, and did not know whether Mr. Jenkins had any damage to his vehicle or not.

After speaking to the police she went to the emergency room. Included in evidence are Ms. Marks’ medical records from River Parishes Hospital, including emergency room records. There is no record of an emergency room visit on November 30, 2001. Ms. Marks testified that she was not sure where she was experiencing pain at the time of her emergency room examination. She testified that the emergency room physician told her to follow up with the chiropractor (Dr. Dale) she was already seeing for an on-the-job injury to her right leg. But on cross-examination Ms. Marks was asked “Didn’t you hurt your leg in an accident at work after this accident, not before?” At first Ms. Marks stated that she was not sure. On further cross-examination she agreed that her earlier testimony, stating, in effect, that she had hurt her leg before this accident, was incorrect. She later testified that after this motor vehicle accident she settled a worker’s compensation claim for her on-the-job leg injury, receiving money and payment of her medical bills.

|BOn direct examination Ms. Marks stated that when she saw Dr. Dale after the accident, her back was hurting her, and her right leg and knee were giving her trouble. She further stated that Dr. Dale was treating her for her lower back and neck in connection with the car accident and that he had an MRI and a lot of x-rays done. On cross-examination Ms. Marks denied that she already had problems with her neck and back before she became a patient of Dr. Dale. When asked on cross-examination if she had ever been to River Parish Hospital regarding her neck and back before the accident, Ms. Marks testified that she could not remember if she did. Later, when asked if she remembered going to the emergency room at River Parishes Hospital on December 23, 1999, and complaining of neck pain, Ms. Marks replied that she was not sure of that but that if the record reflects that she went there and her “signature is on the paper” she would not dispute those records.

Included in evidence is a record of Ms. Marks’ December 23, 1999 admission to River Parishes Hospital Emergency Room for neck and back pain. When defense counsel asked if she had ever hurt her back before the accident, Ms. Marks replied that she was not sure if she did. During cross-examination defense counsel referred to Dr. Dale’s report stating that Ms. Marks had a history of back pain.

In evidence was an April 18, 2002 letter from Dr. Dale to plaintiffs’ counsel regarding Ms. Marks. Dr. Dale stated “she further states that she does have lumbosacral pain, but that it was present prior to the accident [November 30, 2001], and that the accident made it somewhat worse.” Defense counsel also referred to Ms. Marks’ deposition, specifically her answering “no” to the following questions: “Did you ever have any problems with your neck or back before this accident?” and “Have you ever been treated for your neck or back before this accident?” When asked about the conflicting statements, Ms. Marks replied “I’m telling the truth. If I answered “no” or “yes” to a question, or something prior to | fiiny history, maybe I was confused. I don’t — I don’t — I can’t remember back that far.”

On direct examination Ms. Marks testified that she saw specialists “Dr. Phillips, Dr. Addatto” after Dr. Dale’s tests. On cross-examination she denied that she only saw Dr. Adatto, and not Dr. Phillips. She remembered meeting Dr. Phillips and Dr. Adatto. On direct examination Ms. Marks testified that after her visit to the specialists, she understood that she was suffering from back and right leg problems.

Defendant Jerome Jenkins also testified at trial. His testimony is as follows: On November 30, 2001 he was backing out of a parking spot at River Parish Hospital parking lot when he observed a gentleman getting in a truck parked on the side of him, getting ready to leave, and a stopped car in the driveway, “more or less waiting for a parking spot to become available to park.” According to Mr. Jenkins he had enough space to turn his car without getting anywhere near Ms. Marks vehicle. He stated that he would have had to back up at least 30 feet from where his car was parked to hit Ms. Marks and that he only backed up approximately 15 or 20 feet, after which his vehicle was then straight to drive forward out of the parking lot. Mr. Jenkins could not say whether his vehicle came into contact with plaintiffs vehicle, but did not feel any impact. Under cross-examination, Mr. Jenkins testified that his car brakes “when you applied them, they hit kind of hard” and if “you were getting on them pretty hard, you could feel a tap, and I didn’t feel a jolt or an impact, just the brakes of the car that I knew I’d been driving for two years.”

According to Mr. Jenkins, after backing out he stopped to go forward, but hesitated because the gentlemen in the truck next to him was getting ready to back out. He observed in his rearview mirror that the car behind him was not proceeding and thought maybe something had happened so he decided to check it l7out. Mr. Jenkins estimated that when he stopped and got out of his car Ms. Marks’ ear was between 15 and 20 feet from his. He did not recall moving his car forward after he realized Ms. Marks was behind him. Under cross-examination Mr. Jenkins testified that he did not think he hit Ms. Marks because “[t]here was no impact, like you would feel an impact when you’re backing into something or if you hit something.” He further stated that he got out of his car to talk to Ms. Marks because “I saw her there. I saw the expression on her face. It could have been from fright, thinking I was going to hit her. I don’t know. Like I said, I don’t think I hit her.”

Mr. Jenkins testified that he looked at both his vehicle and Ms. Marks’ and observed no damage to either one. He further testified that there were photographs taken of his vehicle (included in evidence) just after the accident and that they do not show any damage to his vehicle. According to Mr. Jenkins, when he got to Ms. Marks’ vehicle Antoinette Love was trying to sit or stand up in the seat, with the seatbelt still on her. Mr. Jenkins stated that he then asked Ms. Marks what happened, and she said that he backed into her car and that it happened so fast that she did not have time to blow the horn, back up or do anything else. Mr. Jenkins then asked Ms. Marks if she was all right and she said ‘I’m fine.’ ” He offered to call the Sheriffs Office on his cell phone. According to Mr. Jenkins, Ms. Marks told him that if there was no damage there was no need for a report and that she was going to the hospital to see one of her relatives in intensive care. Mr. Jenkins testified that he remained for a few more minutes to make sure she was all right, talking to Antoinette Love, who had been crying, and then left. Mr. Marks did not hear anything more about the incident until two months later when a State Farm adjustor called him and told him that a claim had been filed against him and his insurance policy for a wreck that supposedly happened in the River Parish Hospital parking lot.

| RPlaintiffs introduced into evidence medical records from Robert R. Dale, D.C., a chiropractor consulted by Ms. Marks and Antoinette Love after November 30, 2001. Included in these records are three letters that Dr. Dale wrote to plaintiffs’ counsel regarding Ms. Marks and Ms. Love. In a letter dated April 18, 2002, Dr. Dale stated that Ms. Marks originally presented to his office on December 1, 2001. Ms. Marks told him she was involved in a motor vehicle accident on November 30, 2001 and complained of “cervical and upper thoracic pain, muscle spasms, burning in between her shoulders, right hand and tingling.” She further stated that she had lumbosacral pain, but that it was present prior to the accident, and that the accident made it somewhat worse. Dr. Dale’s diagnosis was cervical and lumbosacral sprain/strain injuries, muscle spasm, myalgia, and post traumatic hip bursa swelling. Dr. Dale treated Ms. Marks from December 1, 2001 through February 11, 2002, after which time she voluntarily withdrew from care. Dr. Dale stated that although Ms. Marks continued to be symptomatic she said she had improved considerably.

In a second letter to plaintiffs’ counsel dated February 4, 2003, Dr. Dale made an addendum to his April 12, 2002 narrative report stating that Ms. Marks returned for treatment on April 30, 2002 because of continuing pain in the cervical and lumbo-sacral areas. She also reported to Dr. Dale that she lifted a light object at work and it had caused an increase in her lum-bosacral and hip pain. According to Dr. Dale a May, 2002 MRI indicated some degenerative condition had occurred at the lumbosacral disc with a certain amount of spurring. Dr. Dale treated Ms. Marks through July 8, 2002 and then referred her to Dr. Stuart Phillips. Dr. Dale’s prognosis for Ms. Marks was guarded.

In a third letter to plaintiffs’ counsel dated April 1, 2002 Dr. Dale stated that Antoinette Love was evaluated in his office on December 12, 2001 pertaining to injuries she received in a November 30, 2001 motor vehicle accident. According 19to Dr. Dale the “mother” stated that the baby was a front seat passenger in a seat belt in a car when another vehicle backed into the front of them causing the child to be thrown backward and forward. And she noted that following the accident Antoinette was having difficulty sleeping. Ms. Love was diagnosed with thoracic sprain/ strain injuries, muscle spasm, and myalgia, all probably self-correcting in Dr. Dale’s opinion. He asked that the child return in two weeks to make sure that the problems had indeed corrected themselves. The child did not return for additional treatment so he surmised that they had. He stated that the child will continue to do well.

As noted earlier there is confusion over the relationship between Ms. Marks and Antoinette so it is unclear whether Dr. Dale was referring to Ms. Wanda Marks when he referenced the child’s “mother.”

Also included in evidence was the deposition of Dr. Stuart Phillips, an expert in the field of orthopedic surgery. It should be noted that Dr. Phillips has never examined Ms. Marks. All of his testimony was based on a review of Ms. Marks’ chart. According to Dr. Phillips, Ms. Marks first presented to an associate of his on November 25, 2002 with a history of an accident in January of 2002. When questioned about the above date, Dr. Phillips said that at her initial visit Ms. Marks had been unclear about the date of her accident except that she thought it was in early 2002, January 2002. But Dr. Phillips also noted that there was some reference in the record to the date November 30, 2001.

The patient history indicated that prior to this visit Ms. Marks had been seen by a Dr. Dale and had not gotten well. Dr. Phillips did not have any of Dr. Dale’s medical records, so they were not included in his review. The only medical information in Ms. Marks’ record for the interval between November 30, 2001 and Ms. Marks’ initial visit to Dr. Phillips’ associate on November 25, 2002 was a May 1, 2002 MRI.

11 (According to Dr. Phillips, the MRI showed a moderate degeneration at the lumbosacral spine. Looking at the MRI, Dr. Phillips determined that her arthritic condition was early but at Ms. Marks’ age, more than one would expect. He stated that Ms. Marks’ diagnosis after this first examination was lumbosacral arthritis and a cervical and lumbar sprain. He further stated that objective findings were an abnormal MRI and muscle spasm in the lumbar spine and Ms. Marks’ subjective complaints were pain in the neck and back, and limited motion in the neck and back. Ms. Marks’ next visit was on January 20, 2003. She was still complaining of neck and back pain and still having giving way of her knee, but there was less swelling in her knee. Objective symptoms during this visit were cervical and lumbar muscle spasm. Ms. Marks had appointments scheduled for May 15th and June 10th, but did not keep them.

Dr. Phillips stated that after reviewing Ms. Marks’ records his prognosis for her was that she had an apparently chronic lumbar and cervical strain of moderate severity with some pre-existing arthritis in the lumbosacral spine and that it was aggravated by the trauma. He further stated that after reviewing Ms. Mark’s chart, given the history of her being asymptomatic prior to the accident and having continued complaints of pain for over a year following the accident, he believed that there was a reasonable medical probability that the auto accident caused the problem. On cross-examination, Dr. Phillips stated that his opinion was based upon Ms. Marks’ history that she had had no problems with her neck or back before the accident. He further stated that if, in fact, Ms. Marks had a history of neck and back pain that preceded this accident, his opinion would be affected.

As previously stated, the trial court found for defendants. In his well written reasons for judgment the trial court ultimately found that:

.... the photographs of the defendant’s vehicle, the confused testimony of the plaintiff at trial, the clear issue of preexisting injury, and the testimony of the defendant call into question both the In occurrence and the severity of this accident. In consideration of the foregoing facts, the court concludes that the plaintiff has not proven by a preponderance of the evidence that the defendant was a cause-in-fact of her injuries. Because the plaintiff has not successfully met this initial legal burden, the court need not proceed with the remainder of the duty/risk analysis.

In brief to this court plaintiffs assert that the trial court erred in its holding that the accident was not a cause in fact of plaintiffs’ injuries, and in failing to award damages for said injuries.

Pursuant to La. C.C. Art. 2315(A) “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. C.C. Art. 2316 further provides that “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

In Simmons v. CTL Distribution, 03-1301 (La.App. 5 Cir.), 868 So.2d 918, ivrit denied, 04-0743, 04-0764 (La.5/14/04), 872 So.2d 524, the court stated:

In determining liability for negligence under La.C.C. art. 2315, the courts employ the duty/risk analysis, following a four-prong inquiry: (1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff. Namely, was it a cause-in-fact of the harm which occurred? (2) Did the defendants) owe a duty to the plaintiff? (3) Was the duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? In order for a plaintiff to recover, all four inquiries must be affirmatively answered, (citations omitted)

id. 868 So.2d at 924

In Hill v. Abraham, 00-327 (La.App. 5 Cir. 9/26/00), 770 So.2d 824, 827, the court noted that:

The plaintiff in a personal injury action has the burden of proving by a preponderance of evidence that the injury complained of was caused by the accident giving rise to the suit. Further, it is the plaintiffs burden to demonstrate that the injuries were not caused by an intervening act. (citations omitted)

In Scramuzza v. River Oaks Inc., 03-959 (La.App. 5 Cir. 3/30/04), 871 So.2d 522, 529, unit denied, 04-1088 (La.6/25/04), 876 So.2d 839, the court noted that 112*‘[w]hether an action is the cause-in-fact of the harm is essentially a factual determination that is usually left for the factfin-der.” A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Tortorich v. Otis Elevator Co., Inc., 02-275 (La.App. 5 Cir. 10/16/02), 831 So.2d 307, 311.

Given the evidence presented at trial, including the confused and contradictory testimony of Ms. Marks and the medical evidence showing pre-existing injury, we find no “manifest error” in the trial court’s finding of facts. Accordingly, we affirm the judgment of the trial court and assess costs of this appeal to plaintiffs.

AFFIRMED.


author: I,MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Ronald F. KIBBE.
    No. 04-KA-349.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Laura M. Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   I,MARION F. EDWARDS, Judge.

Defendant, Ronald F. Kibbe, appeals his conviction for violation of LSA-R.S. 14:67, theft of U.S. currency valued at $500. For the following reasons, defendant’s conviction is affirmed and we remand to the trial court to correct errors patent on the face of the record.

FACTS AND PROCEDURAL HISTORY

On May 9, 2003, the Jefferson Parish District Attorney filed a bill of information charging defendant, Ronald F. Kibbe, with theft of U.S. currency valued at $500 in violation of LSA-R.S. 14:67. Kibbe was arraigned on May 19, 2003 and pled not guilty. On January 8, 2004, the case was tried before a six-person jury which found Kibbe guilty as charged. The trial court denied Kibbe’s motion for new trial on January 23, 2004, and on that same date, Kibbe waived sentencing delays. The trial court sentenced Kibbe to imprisonment in the parish prison for six months suspended and placed him on “in-house court probation” for six months. Kibbe thereafter filed a motion for appeal that was granted.

| yJohn E. Yaeger, II, director of security for Boomtown Casino, testified that, on March 27, 2003, he became aware that the casino was missing $500. In an attempt to recover the money, he viewed a videotape of the area at the time the money was lost. Mr. Yaeger observed “one of our female slot key people get some money from the cage.” As she turned around to walk away, she dropped some money on the floor.

Mr. Yaeger noticed a white male, later identified as defendant, pick up the money, look around to see if anybody saw him, stay around a short while to see if anybody came back, then turn and go to the cage. After Mr. Yaeger looked at the videotape, he was able to ascertain the man’s identity as that of Ronald Kibbe. Once he had the name, Mr. Yaeger checked to see if the casino had an address or telephone number for him through their “Player’s Club” Department.

Mr. Yaeger learned that Kibbe had a residence on Robert E. Lee Boulevard in New Orleans and obtained his telephone number. Mr. Yaeger called that number on several different occasions, but nobody answered the telephone. On the third or fourth try, a female answered the telephone. Mr. Yaeger advised who he was and asked if Kibbe was there. The female stated that he was not, and that sometimes he stayed at another residence. Mr. Yae-ger asked for another telephone number, but the female would not provide one.

He subsequently advised the female that he was director of security for Boomtown Casino, that they had Kibbe on videotape finding some money, and that he would like Kibbe to call him so they could discuss the return of the money. The female told Mr. Yaeger that she would give him the message. Mr. Yaeger testified that, at that time, Boomtown just wanted their money back, and they wanted to do it the “easy way” and not embarrass anyone.

However, when Mr. Yaeger did not receive a call from Kibbe, he contacted the state and asked them to file charges. After charges were filed, Kibbe called |4Mr. Yaeger and asked him if they could “work it out.” Mr. Yaeger advised Kibbe that they had already contacted the district attorney’s office.

Louisiana State Trooper Saunders Craine testified that he was assigned to investigate the theft at Boomtown Casino. After obtaining the videotape and statements from the casino, he conducted a criminal background check on Kibbe, obtained a driver’s license photograph, and learned that defendant was living at 630 Central Avenue, Apartment 112. Trooper Craine then prepared an arrest warrant for Kibbe.

On April 3 at 6:10 p.m., Trooper Craine went to the Central Avenue address. He asked Kibbe to step outside and arrested him. Trooper Craine subsequently handcuffed Kibbe, and another officer advised defendant of his rights which defendant indicated that he understood. Trooper Craine testified that when they brought Kibbe back into his house so he could put on his shoes, Kibbe said, “[I]s this about the Five Hundred Dollars?”, and “that girl dropped that Five Hundred Dollars.” When Trooper Craine asked Kibbe where the $500 was, defendant said he used it to pay back rent. The videotape was subsequently played for the jury.

In the videotape dated March 27, 2003 at approximately 2:50 a.m., a cashier behind a counter and glass counts money and hands it to a white female. The white female counts the money again. As she does so, a white male walks up and stands a few feet behind her. The white female turns to her right and walks away with the money in her hands. As she walks away, she drops some of the money on the floor and continues walking. The white male looks down, sees the money, and picks it up. He turns to his right, leans on the counter, and looks all around. The videotape shows an older woman standing at the counter a couple of feet down from the white male on his right conducting a transaction with another cashier. The white male turns back to the cashier where he conducts some type of transaction. He takes something from the cashier, looks to his right and around. | sHe turns back to the cashier, but then turns around to look behind him and around again. The white male turns back to the cashier, takes something, and walks off. The videotape shows the white male leaving the casino immediately after.

Kibbe testified that he did not steal any money from anybody at the Boomtown Casino on March 27, 2003. He identified himself on the videotape as it was being played again for the jury. He testified that, as he was waiting at the cashier’s window to cash his nine dollar check, a woman passed him quickly. All of a sudden he looked down, saw the money on the floor, reached down and picked it up.

Kibbe looked around to see who might have dropped it. He claimed that he did not see anyone drop the money. He explained that he saw a woman standing to his right, so he approached her and asked if that was her money. The woman did not acknowledge him or say anything to him. Kibbe went back to the cashier’s window and gave the cashier his ticket. He observed her staring off into space, so he looked around to see what she was staring at. The cashier gave him his ticket which he signed, and then he left the casino.

The next day, Kibbe’s wife told him that somebody had called and wanted to talk to him regarding an incident that had happened the day before. Kibbe testified that the person who called did not identify himself as a Boomtown employee, nor did he mention any money. Kibbe claimed that he called the telephone number the person gave and left a message. He explained that if somebody had called back, his wife probably would not have answered the telephone because she was on oxygen and stayed in another bedroom, and that he was working the remainder of the week until 10:30 p.m. at Sams.

At a later date, two people banged on his door. He answered it and walked outside, and the officers told him they were there regarding the incident at Boomtown Casino. They arrested him, handcuffed him, and a third officer advised lfihim of his rights. Defendant asked them, “Is this about the money I found at the Casino?” He claimed that he did not mention that a girl had dropped the money. He admitted that he told the officer that he used the money to pay back rent.

Kibbe testified that, after he was arrested, his wife called Mr. Yaeger and offered to obtain $500 and pay it back, but that Mr. Yaeger was very rude and said, “No, it’s too late for that” and hung up on her. Kibbe explained that he had resided on Central Avenue for approximately five years, and that his mother lived on Robert E. Lee Boulevard at the time of the incident. Kibbe testified that his mother had not had a telephone in over fifteen years.

LAW AND ARGUMENT

In his first assignment of error, Kibbe argues that the evidence was legally insufficient to support the verdict. He does not argue that the state failed to prove the value of the misappropriation or taking necessary to support his conviction. Rather, he contends that he lacked the specific intent to commit the crime because of a mistake of fact, primarily that he believed the cash was lost or abandoned by unknown persons. The state responds that the evidence was sufficient to support the conviction.

In determining a challenge to the sufficiency of the evidence, the reviewing court must decide whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt.

In cases involving circumstantial evidence, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” In State v. Mitchell, the Louisiana Supreme Court discussed appellate review of such cases:

|70n appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” ... Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.... (Citations omitted; emphasis as found in the original).

In the instant case, defendant was charged with and convicted of theft of U.S. currency valued at $500.00. Theft is defined in LSA-R.S. 14:67(A) as follows:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Theft is a crime of specific intent. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the fact finder.

Kibbe’s argument is that he could not have specifically intended to commit the crime of theft because of a mistake of fact-he believed the money was lost or abandoned. LSA-R.S. 14:16 states:

Unless there is a provision to the contrary in the definition of a crime, reasonable ignorance of fact or mistake of fact which precludes the presence of any mental element required in that crime is a defense to any prosecution for that crime.

Reasonable ignorance can be a defense under LSA-R.S. 14:16, but not “unreasonable ignorance.”

| sIn the instant case, the state introduced evidence to show that Kibbe committed theft of $500. Kibbe argued that he did not steal the money, but in fact, thought that the cash was lost or abandoned. He further claimed that he did not see the woman drop the money before he picked it up.

The jury rejected the defendant’s argument at trial. A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure that the defendant has received due process of law. It is not the function of an appellate court to assess credibility or reweigh the evidence. Appellate review for minimal constitutional sufficiency of evidence is a limited one restricted by the standard developed in Jackson.

Mr. Yaeger’s testimony and the surveillance videotape indicate that Kibbe observed a female drop some money after leaving the cashier’s window, and that he picked the money up, looked around several times, and then left the casino. Although Kibbe denied observing the female drop the money, his testimony was contradicted by the videotape which shows that he did in fact observe her drop the money. His testimony was also contradicted by Trooper Craine who testified that, when defendant was arrested, he stated, “[I]s this about the Five Hundred Dollars?; that girl dropped that Five Hundred Dollars.” As such, the evidence shows that Kibbe had the specific intent to commit the crime, and that he did not mistakenly believe that the money was lost or abandoned.

Accordingly, after a review of the evidence presented at trial viewed in a light most favorable to the state, we find that a reasonable juror could have 13excluded the hypothesis that defendant mistakenly believed the money was lost or abandoned.

As requested by defendant, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. The following matters are noted:

The trial court imposed an illegally lenient sentence. It placed defendant on probation for six months in violation of LSA-C.Cr.P. art. 893(A) which states that the period of probation shall not be less than one year nor more than five years.

This Court has authority under LSA-C.Cr.P. art. 882 to correct an illegally lenient sentence despite the failure of either party to raise the issue in the district court or on appeal. Nonetheless, this Court has also recognized that LSA-C.Cr.P. art. 882 is permissive. Accordingly, we remand the case to the trial court for resentencing in accordance with LSA-C.Cr.P. art. 893(A).

The transcript indicates that the trial judge did not advise Kibbe of the two-year prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8. The commitment indicates that defendant was advised of this prescriptive period. Where there is a discrepancy between the commitment and the transcript, the transcript prevails. We therefore remand the case with an order for the trial judge to send written notice to defendant of the prescriptive period for filing an application for post-conviction relief, along with a notice of when the period begins to run, within ten days of the rendering of this opinion, then to file written proof in the record that defendant received the notice.

We also note that the commitment is inconsistent with the transcript and the probation form regarding restitution. The transcript indicates that the trial |10judge ordered defendant to pay restitution; however, the trial judge did not state the amount of restitution to be paid. The “Conditions of Probation — Felony” form provides that defendant is to pay restitution in the amount of $500, and the form is signed by defendant, his attorney, and the trial judge. The commitment states that, “The Defendant shall pay any restitution to the victim to be determined by probation.” As stated above, where there is a discrepancy between the transcript and the minute entry, the transcript prevails. Therefore, we order the trial court to correct the original commitment to insure an accurate record.

For the foregoing reasons the defendant’s conviction is affirmed and we further remand to the trial court in order to correct errors patent on the face of the record.

AFFIRMED; REMANDED.

      . "In-house court probation” appears to be unsupervised probation. In addition to all general conditions of probation, the trial court imposed the following special conditions of probation: a $300 fine, all court costs, and restitution of $500.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 82.

      . 772 So.2d at 83.

      . State v. Hampton, 00-1002 (La.App. 5 Cir. 1/23/01), 782 So.2d 1045, 1052.

      . LSA-R.S. 14:10(1); State v. Mitchell, 772 So.2d at 82.

        . State v. Graham, 420 So.2d 1126 (La.1982).

      . State v. Henderson, 296 So.2d 805, 807 (La.1974).

      . State v. Silman, 95-0154 (La. 11/27/95), 663 So.2d 27, 35.

      . State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789).

        . State v. Rosiere, 488 So.2d 965, 968 (La.1986) (and the cases cited therein).

      . 312 So.2d 337 (La.1975);

      . 556 So.2d 175 (La.App. 5 Cir. 1990).

      . State v. Williams, 00-1725 (La.l 1/28/01), 800 So.2d 790.

      . State v. Jordan, 02-820 (La.App. 5 Cir. 12/30/02), 836 So.2d 609.

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . State v. Miller, 02-729 (La.App. 5 Cir. 12/30/02), 836 So.2d 614, 618, writs denied, 03-0200 (La.10/10/03), 855 So.2d 326, and 03-0503 (La.10/10/03), 855 So.2d 329.

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . State v. Bell, 03-217 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90-91.


text:
    Sandra Pace Wife of/and Steven C. LAGRAIZE and Estate Developments, L.L.C. v. The PARISH OF JEFFERSON.
    No. 04-CA-456.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Regel L. Bisso and Jack E. Morris, Me-tairie, LA, for Plaintiff/Appellant.
    Gregory G. Gremillion, David D. Kervin, Jr., Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   | ¡.EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Sandra Pace, wife of/and Steven La Graize and Estate Developments, L.L.C., plaintiffs-appellants, from a partial summary judgment dismissing their federal claims under 42 U.S.C. § 1983 against Robert Early, an assistant Jefferson Parish attorney. For the following reasons we affirm the judgment.

The facts of this case are set out in Lagraize v. Parish of Jefferson, 01-1083 (La.App. 5th Cir.1/15/02), 805 So.2d 442, writ denied, 2002-0738 (La.5/12/02), 815 So.2d 844, and need not be repeated in detail here. We do note the following particulars, however, because they are necessary to understand our disposition of the case.

In 1997 plaintiffs bought from the Louisiana Department of Transportation and Development a building that had been used for some years by the agency as a place to conduct real estate transactions. The building was zoned residential, a classification which prohibited its use for commercial purposes. However, prior to |31966 state agencies were allowed to use properties for agency purposes without seeking approval of the governing authority. After 1966 these agencies were required to seek such approval, but in the present case the DOTD did not do so. Nonetheless, the use being made of the property was a permitted use within the zoning classification.

When plaintiffs bought the property they assumed that its use as a real estate office had been grandfathered in and they sought permits to remodel the structure for this purpose. The permits department refused to issue the permits and plaintiffs filed an appeal with the Zoning Board. On May 12, 1997, the Board issued a ruling granting plaintiffs’ request for non-conforming use status. Three days later Robert Early, an assistant parish attorney, wrote plaintiffs to inform them that the Zoning Board had misunderstood the status of the property while being used by the DOTD, which in his opinion was that of a permitted use in the zoning classification, rather that a non-conforming use. He further stated that what the Board had in effect done was rezone the property, a function which was beyond its authority. He stated that because of this lack of jurisdiction by the Board, he was rescinding its ruling. Finally he advised plaintiffs that their proper remedy was to apply to the Planning Advisory Board and Parish Council to have the property re-zoned.

Plaintiffs instead decided to seek relief in the courts and filed suit to have the court order enforcement of the Zoning Board’s decision in their favor, as well as award damages. The Parish, for its part filed a separate action some months later to have the decision vacated as being beyond the jurisdiction of the Board, and the suits were consolidated. During the course of the litigation plaintiffs also filed an amended petition naming Early as a defendant and asserting against him a claim under 42 U.S.C. § 1983.

|,Jn the meantime, the Parish’s nullity action resulted in a district court judgment basically upholding the position taken by the Parish in the Early letter, i.e. that the Zoning Board lacked authority to grant the non-conforming use status and thus the Board’s action was a nullity. This court reversed that judgment holding instead that the only remedy to a decision by the Zoning Board was for the aggrieved party (here the Parish) to seek judicial review within 30 days of the decision. Because the parish did not file its nullity action within the 30 day period the ruling of the Zoning Board became final and no longer subject to attack. Lagraize v. Parish of Jefferson, supra. The case was remanded to the district court for further proceedings.

Early thereupon filed individually a motion for summary judgment as to the 42 U.S.C. § 1983 claim, which was granted. Plaintiffs now appeal that judgment. Their theory here is that the Early letter violated their federal due process rights by purporting to revoke a property right under color of state law without giving them an opportunity to be heard.

Assuming, arguendo, that there was a procedural due process violation, that fact alone would not entitle them to assert a 42 U.S.C. § 1983 claim. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Parrott v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) the Court enunciated the Parratt/Hudson doctrine applicable to 42 U.S.C. § 1983 actions as follows. A state actor’s random and unauthorized deprivation of a plaintiffs property does not result in a violation of procedural due process rights if the state provides an adequate post-deprivation remedy.

Thus, the two issues here are first whether Early’s actions were random and unauthorized, and second does state law provide an adequate remedy. As to Early’s action in purporting to vacate a decision by the Zoning Board, this court has ruled that he had no such authority under state law or parish ordinance. Lagraize v. Parish of Jefferson, supra. There is no allegation that such action was undertaken on a regular basis by assistant parish attorneys. It is thus clear that Early acted randomly and without legal authorization.

As to an adequate state remedy, it is equally clear that plaintiffs have pled facts which would state an action in negligence against the Parish. Plaintiffs argue that the state tort remedy is not adequate because they would not be entitled to attorney fees under state law, while they would be under 42 U.S.C. § 1983. This argument was rejected in Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985), and we see no reason to depart from that holding here. Since both prongs of the Parratt/Hudson doctrine have been met, plaintiffs have no 42 U.S.C. § 1983 claim to assert against Early.

Plaintiffs also advance an argument that their substantive due process rights were violated, therefore constituting a second basis for proceeding under 42 U.S.C. § 1983. In Weimer v. Amen, 870 F.2d 1400 (8th Cir.1989), the court discussed the availability of 42 U.S.C. § 1983 actions for substantive due process claims. It pointed out that where a procedural due process claim based on a violation of state law is not allowed under the Parratt/Hudson doctrine, a substantive due process claim based on the same allegations would likewise be disallowed. Here, the act of purporting to nullify a decision of the Zoning Board was a violation of state and/or parish laws and is the sole basis of plaintiffs’ § 1983 action against Early. Because we have determined that there is no procedural due process claim to be asserted under Parratt/Hudson for this violation, we also rule that there is no substantive due process claim based on the same allegations.

For the foregoing reasons the judgment of the district court is hereby affirmed.

AFFIRMED.