author: JjMOOEE, J.

text:
    Joyce S. MUDD and Lee Mudd, Plaintiffs-Respondents, v. CHRISTUS HEALTH NORTHERN LOUISIANA d/b/a Christus Schumpert Health System, Defendant-Applicant. Joyce S. Mudd and Lee Mudd, Plaintiffs-Respondents, v. Lifeshare Blood Centers, Defendant-Applicant.
    Nos. 37,133-CW, 37,145-CW.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Nelson, Hammons & Self by John L. Hammons, Cornell R. Flournoy, Shreveport, for Plaintiffs-Respondents.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for Defendant-Applicant Christus Health Northern Louisiana d/b/a Christus Schumpert Health System.

      Cook, Yancey, King & Galloway by Cynthia C. Anderson, Shreveport, for Defendant-Applicant LifeShare Blood Centers.
    Before BROWN, DREW and MOORE, JJ.
   JjMOOEE, J.

The defendants, Christus Health Northern Louisiana (“Schumpert”) and LifeShare Blood Center, seek review of an interlocutory ruling that denied their exceptions of prescription. This court initially granted a writ to examine the record more closely. For the reasons expressed, we now recall the writ, affirm the judgment and remand the case.

Procedural Background

The plaintiff, Mrs. Mudd, underwent a hysterectomy at Schumpert in early 1980. In deposition she stated that she received “at least 10” units of blood supplied to Schumpert by LifeShare. She alleged that she was diagnosed with Hepatitis C in November 1998, and had no other risk factors for the disease. She filed for a medical review panel (“MRP”) in June 1999.

In October 1999, Schumpert filed an exception of prescription urging that the claim was perempted under La. R.S.. 9:5628. The Mudds responded with a petition for declaratory judgment, seeking to declare that statute unconstitutional. In March 2000, she filed a separate petition for damages against LifeShare.

In October 2000, the Louisiana Supreme Court rendered Williams v. Jackson Parish Hosp., 00-3170 (La.10/16/01), 798 So.2d 921, holding that R.S. 9:5628 is unconstitutional as applied to defective blood claims arising before 1982, and that the one-year prescriptive period of La. C.C. art. 3492 applies. Jurisprudence under Art. 3492 includes a “discovery rule,” whereby prescription begins to run only when the plaintiff has actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d2 502.

In July 2002, Schumpert filed a supplemental exception of prescription. This alleged that Mrs. Mudd’s internist, the late Dr. Samuel Lieber, told her in May 1990 that she had Hepatitis C. In support, Schumpert attached a portion of her deposition in which she admitted going to Dr. Lieber for chronic fatigue, which as early as 1983 he ascribed to “possible Hepatitis.” She also agreed that in May 1990, Dr. Lieber told her she had Hepatitis C, likely contracted from blood products. Schum-pert also attached a portion of Dr. Lieber’s deposition, in which he referred to his office records of May 1990. These showed that he gave her a Hepatitis viral antigen and antibody test on May 8; he received test results positive for Hepatitis C on May 16 and called her to report this on May 18. Schumpert argued that this notice constituted discovery of the disease and its cause.

LifeShare filed an exception of prescription raising the same issues as Schumpert and attaching the same deposition extracts. Both exceptions were consolidated for a hearing in August 2002.

At the hearing, the Mudds called her current physician, Dr. Thomas Allen, a local gastroenterologist. He testified that medical science developed a test (“ELISA”) to detect Hepatitis C about 1990, but this could not confirm the diagnosis. A confirming test (“RIBA”) became available in 1992. However, the modern test (“PCR,” which he referred to as the gold standard) became available only in 1994. He testified that based on Dr. Lieber’s office records, Dr. Lieber gave Mrs. Mudd an ELISA, but never a RIBA or PCR, or treated her for Hepatitis C; her condition was not | ¡¡confirmed until he (Dr. Allen) administered a PCR and a liver biopsy in October 1998. The Mudds also offered the deposition of another gastroenterologist, Dr. David Dies, who corroborated these points.

The Mudds argued that until she received Dr. Allen’s confirmed diagnosis, she could not know that she really had Hepatitis C; her various symptoms could have resulted from estrogen treatment, which she was receiving from Dr. Lieber. She further argued after allegedly diagnosing a serious disease in 1990, Dr. Lieber made no effort to treat it. She also submitted that Dr. Lieber’s records were too confusing to show that he had actually advised her that she had the disease.

The defendants argued that Dr. Lieber’s records speak for themselves. They urged that a definitive diagnosis is not needed to start prescription. Foraker v. Board of Supervisors, 31,740 (La.App. 2 Cir. 4/1/99), 734 So.2d 63, writ denied, 99-1268 (La.6/18/99), 745 So.2d 607. Schumpert finally contended that the majority’s opinion in Williams v. Jackson Parish Hosp., supra, was in error, and that the court should follow the analysis of the three dissenting justices.

In oral reasons, the district court noted that Dr. Lieber’s records were full of “modifications”- and that he did not give Mrs. Mudd enough information to excite her suspicion as to diagnosis and cause. Specifically, Dr. Lieber did not consider the condition serious enough to warrant further tests or treatment, so he did not put her on notice. By contrast, Dr. Allen made it clear to Mrs. Mudd in late 1998 that she had Hepatitis C and probably contracted it from the blood transfusions in 1980.14 Finally, the court noted that it had no authority to disregard the majority ruling in Williams v. Jackson Parish Hosp., supra. The court found that the Mudds’ petition for an MRP came within one year of discovery and was timely. The court denied -both exceptions, and these writs followed.

Applicable Law

A tort claim arising out of defective blood transfusions that occurred prior to 1982 is considered a strict liability claim and is subject to the one-year prescriptive period of La. C.C. art. 3492. Williams v. Jackson Parish Hosp., supra. However, prescription begins to run only when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Campo v. Correa, supra. The prescriptive period begins to run even if the plaintiff does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of those facts. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry, and entails notice or knowledge of everything to which reasonable inquiry might lead. Id. A plaintiffs mere apprehension that something may be wrong is not sufficient to start the running of prescription unless she knew or should have known through the exercise of reasonable diligence that her problem may have been caused by acts of malpractice. Id. Even if a malpractice plaintiff is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for her not to recognize that the condition might be related to the treatment. Id. The ultimate issue is the reasonableness of the | ¿plaintiffs action or inaction, in light of her education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. Id.; Adams v. Louisiana Medical Mut. Ins. Co., 33,030 (La.App. 2 Cir. 4/7/00), 756 So.2d 708, writ denied, 00-1322 (La.6/30/00), 766 So.2d 540.

Discussion: Application of Discovery Rule

Sehumpert contends that under a plain reading of Mrs. Mudd and Dr. Lie-ber’s depositions, he advised her in May 1990 that she had Hepatitis C and contracted it from blood transfusions. Sehumpert urges that this is actual knowledge and sufficient to start prescription. Foraker v. Board of Supervisors, supra. LifeShare raises the same argument, but adds that the Louisiana Fifth Circuit has rejected the argument that Hepatitis C cannot be properly diagnosed until confirmed by a specialist. Turnage v. Columbia Lakeside Hosp., 98-1263 (La.App. 5 Cir. 3/30/99), 731 So.2d 919, writ denied, 99-1229 (La.6/18/99), 745 So.2d 26.

On close examination, Dr. Lieber’s testimony and office records are inconclusive as to what he actually advised Mrs. Mudd in May 1990. His May 7 office note mentioned that she had “old hepatitis” and ordered “hepatitis viral antigen and antibody tests for A, B and C.” The next note, dated May 13, states that he had received those tests, “showing she had B hepatitis years ago with positive anti-HBC, we await hepatitis C study,” and a handwritten plus sign appears in the margin next to this. Dr. Lieber explained in deposition that this indicated a positive test result, but that it was a typo: the “small ‘e’ relates to Hepatitis B.” He added that this would confuse anyone, even himself. The next note, dated May 18, says Mrs. | fiMudd had “evidence of both hepatitis B and C in past years.” In short, Dr. Lieber’s office records from May 1990 do not clearly show that he diagnosed Hepatitis C at that time, or communicated this to Mrs. Mudd.

Mrs. Mudd testified that in May 1990, she had no symptoms other than fatigue, from which she had been suffering for at least 10 years. She acknowledged Dr. Lieber’s office notes, but said he thought her liver trouble was related to estrogen treatment she had been receiving. She recalled Dr. Lieber telling her in 1994 “maybe” she had Hepatitis C from .blood transfusions. She also testified that Dr. Lieber did not actually diagnose Hepatitis C until June 1998, after she had been to Dr. Allen. However, in response to leading questions she agreed several times that she knew she had the disease in 1990 and that it was the result of her 1980 blood transfusions.

The ultimate issue is the reasonableness of Mrs. Mudd’s inaction. Campo v. Correa, supra; Cole v. Celotex Corp., 620 So.2d 1154 (La.1993). Mrs. Mudd described á series of ailments, chronic fatigue and attempted treatments. Although she answered leading questions in a manner to suggest that Dr. Lieber told her in 1990 that she had Hepatitis C as a result of transfusions, elsewhere she indicated the diagnosis was more tentative, as in the September 1994 office visit. Dr. Allen confirmed that her elevated liver enzymes in the early 1990s could have resulted from her estrogen therapy. Notably, Dr. Lieber never ordered any treatment for Hepatitis C, a course of action completely inconsistent with an actual diagnosis of a serious condition. On this record, the district court was not ^plainly wrong to find that Mrs. Mudd did not have actual or constructive knowledge of her condition or its cause in May 1990. The record clearly shows that she received actual knowledge of these matters in October 1998 from Dr. Allen. Her petition for an MRP, filed in June 1999, was therefore timely.

Both defendants rely on Foraker v. Board of Supervisors, supra, and LifeShare cites Turnage v. Columbia Lakeside Hosp., supra, as mandating a finding of constructive knowledge. We note that the doctor’s records in Foraker were much more conclusive than in the instant case, showing that the plaintiff was diagnosed with Hepatitis C over a year before requesting an MRP; additionally, the plaintiffs sister, who had also been diagnosed with the disease, corroborated that she informed the plaintiff about the condition and its cause over a year earlier. In Tur-nage the discussion is minimal but shows that the plaintiff received a diagnosis of Hepatitis (not specifically Hepatitis C), together with information that it came from blood transfusions, more than a year before she filed suit. The instant case is more akin to Bourque v. Louisiana Health Syst. Corp., 03-56 (La.App. 3 Cir. 4/30/03), 845 So.2d 584, in which the recipient of a 1975 blood transfusion was diagnosed in 1976 with Hepatitis B and told by physicians that it resulted from the transfusion, but no other diagnosis made and no treatment ordered. The plaintiff did not receive a confirmed diagnosis of Hepatitis C until April 1998, and filed suit in March 1999. The Third Circuit reversed a judgment sustaining the defendant’s exception of prescription.

|sFor the reasons expressed, we detect no manifest error in the district court’s finding that this claim is not prescribed.

Other Arguments

By its first assignment of error LifeS-hare urges that because the Mudds’ request for MRP against Schumpert was not timely, it did not interrupt prescription as to LifeShare. La. R.S. 40:1299.47 A(2)(a); Masters v. Fields, 27,924 (La.App. 2 Cir. 1/24/96), 666 So.2d 1333, rev’d on other grounds, 96-0486 (La.1/31/97), 686 So.2d 850. As the claim against Schumpert was in fact timely, this interrupted prescription with respect to LifeShare. La. C.C. arts. 1799, 3503. This argument lacks merit.

By its second assignment of error Schumpert urges that the supreme court’s opinion in Williams v. Jackson Parish Hosp., supra, is wrong and “any application of the standards set forth therein by the trial judge is an error because Williams should be overruled.” However, the appellate courts of the state are bound to follow the decisions of the state supreme court. Pelican State Asso., Inc. v. Winder, 253 La. 697, 219 So.2d 500 (1969); Lucky v. Fricks, 511 So.2d 1315 (La.App. 2 Cir.), writ denied, 514 So.2d 455 (La.1987). Sehumpert’s invitation to disregard the supreme court’s latest expression of the law of prescription lacks merit.

Conclusion

For the reasons expressed, we recall the writ previously granted and affirm the district court’s judgment denying the defendants’ exceptions of prescription. The case is remanded for further proceedings. Costs are assessed equally against Schum-pert and LifeShare.

WRIT RECALLED; JUDGMENT AFFIRMED; CASE REMANDED.


source: Caselaw Access Project

author: h STEWART, J.

license: Public Domain

text:
    Billie Lester HAYES, et al., Plaintiffs-Appellants, v. ENTERGY CORPORATION, et al., Defendants-Appellees.
    No. 37,190-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Paul B. Wilkins, Columbia, W. Mark McKee, West Monroe, for Appellants Billie L. Hayes, Darleen Hayes Parks, Carolyn Hayes, Tonya Hayes Lang and Randall Hayes.
    Dawkins & Carter by William S. Carter, Jr., for Intervenor Appellee American Interstate Ins. Co.
    The Boles Law Firm by Michael L. Du-Bos, for Appellees Louisiana Power & Light Co., Entergy Louisiana Inc. and Carl Comeaux.
    Before STEWART, DREW and MOORE, JJ.
   h STEWART, J.

The family of Billie Lester Hayes (“family”) appeals the jury’s finding of no liability on the part of Entergy in the accident that resulted in the death of her husband, Prentice Hayes (“Hayes”). Finding no merit in the plaintiffs claims, we affirm.

FACTS

The events that gave rise to this wrongful death action occurred on August 23, 1999, on Holmon Road, a rural gravel roadway in Caldwell Parish. Prentice Hayes, a truck driver for J.K.M. Trucking was killed while attempting to unload a logging shear beneath a power line traversing Holmon Road. Hayes had gone to pick up the logging shear from the repair shop and bring it to the site on Holmon Road so that the logging crews would be able to use it the next morning. Hayes met Johnny Martin (“Martin”), owner of J.K.M. Trucking and J.K.M. Pulpwood, at the repair shop to pick up the shear. After Hayes insisted on unloading the shear that evening, Martin gave him permission to go and unload the massive shear alone in a particular area of Holmon Road. Hayes was quite familiar with the area having frequented Holmon Road during his work day, averaging 4 to 6 trips a day carrying logs in the three months leading up to the accident.

Entergy has an eight kilovolt power line that services the homes on Holmon Road. The line is a single phase line consisting of the primary conductor strung above the neutral conductor. Entergy’s lines crisscross the roadway several times. In spite of the fact that there was a clearing area more suitable for unloading on the right side of the road, Hayes unloaded the shear at a point on the road directly underneath one of these power lines | gon the left side of the road. He lowered the dove tail ramps on the trailer and got into the shear. Hayes then raised the shear head and backed the shear off of the lo-boy trailer. At some point, the shear head made contact with the energized power line. Apparently, Hayes noticed that he was touching the power line and attempted to exit the cab of the shear. He climbed out of the shear and onto the deck of the lo-boy trailer. As he leaned back to look at the overhead power line, Hayes touched the energized shear. Because of the rubber tires, he was protected from shock while in the shear, but Hayes was unprotected while on the deck of the lo-boy because a path to the ground was now created. Hayes received an electrical shock that knocked him to the deck of the trailer, and according to the coroner, resulted in his death. As Hayes lay on the lo-boy, the shear rolled over the dove tail ramps and crushed him.

Following a trial on the merits, the jury determined that Entergy was not at fault for this accident. This appeal ensued.

DISCUSSION

Standard of Review

This court’s review of the trial court’s findings is governed by the manifest error/clearly wrong standard. Stobart v. State of La. Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989); Jones v. Cobb, 36,724 (La.App.2d Cir.12/30/02), 834 So.2d 13. Where there is conflict in the testimony reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. If the trial court’s |3findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, supra; Rosell, supra.

Liability of Entergy

In order to establish liability for negligence on the part of a power company, a plaintiff must prove not only that his injuries were caused by the transmission of electricity from the power company’s line, but also that the risk which resulted in plaintiffs injuries was an unreasonable one and that the power company failed to comply with a duty or standard of care requiring it to take precautions against that danger. Levi v. Southwest La. Elec. Mem. Cooperative (SLEMCO), 542 So.2d 1081 (La.1989).

Johnny Martin testified that Hayes was not trained to unload the shear from the lo-boy, and that had he been there, he would have unloaded the shear himself. Martin testified that, in spite of his attempts to persuade Hayes to wait until the morning to unload the shear, Hayes insisted on unloading the shear that evening so that it would be ready for the loggers when they came to work in the morning.

The family asserts that the power lines in question were out of compliance with National Electric Security Code (NESC) standards and the cause in fact of this accident. There was considerable testimony about the appropriate standards for line height under the NESC and conflicting expert testimony about whether the aforementioned lines were actually, “out of sag” as the family contends.

I/Fhe family asserts that Entergy’s failure to inspect these lines and correct then-sagging was in violation of its duties. Dobson v. Louisiana Power and Light, 567 So.2d 569 (La.1990); Nigreville v. Federated Rural Elec. Ins. Co., 93-1202 (La.App. 3d Cir.7/13/94), 642 So.2d 216; Weaver v. Valley Elec. Membership Corp., 615 So.2d 1375 (La.App. 2d Cir.1993). The family further asserts that because Enter-gy did not have knowledgeable employees that conducted meaningful inspections of the electrical lines on Holmon Road, they failed to discover and correct the excessively sagged line which caused the accident that resulted in Prentice Hayes’ death.

The Louisiana Supreme Court has duly noted that the obviousness and appar-entness of an allegedly dangerous condition are relevant factors to be considered under the duty-risk analysis. If the facts demonstrate that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no further duty to the plaintiff. Pitre v. La. Tech Univ., 95-1446 (La.5/10/96), 673 So.2d 585, 592.

The record is replete with testimony from a battery of Entergy employees-Bobby Dubose, Herman McCarty, Kenny Robertson, Tony Smith, William Comeaux, and Danny Carpenter, regarding their duties concerning the inspection, repair, and upkeep of power lines. Although Entergy did not have a specific individual whose job it was to go around and inspect electrical lines or poles, we do not find that such a program is necessary to meet its standard of care to the public. If ever there is a problem with a line, Entergy’s linemen, meter readers, pole inspectors, ^vegetative maintenance crews and supervisors, who all work with the lines on a daily basis, will report the matter. In fact, each Entergy employee that testified was safety conscious and understood that they had a responsibility to report any hazards posed by low-lying or downed power lines. Moreover, Entergy’s engineers have incorporated the NESC standards into line construction and all lines comply with said standards.

There was competing expert testimony concerning whether the power lines were out of compliance with NESC standards. The electrical lines are made of aluminum and as the temperature increases, the lines expand and droop closer to the ground. The lower the temperature, the higher the lines are from the ground. But no matter the temperature, the lowest height of the line should always be 18 feet, 6 inches. On the day of the accident the temperature was in the low 90 degrees. While lying flat on the trailer which was five feet off the ground, the highest part of the shear that was the subject of this accident was 18 feet, three inches. The plaintiffs expert witness in electrical engineering, Robert Nethken, an associate professor at LSU, testified that he measured the line where the accident took place in several places but that he only recorded the area where the memorial to Hayes was located because the area on the line appeared to have a burn spot. He testified that the minimum height requirement for a line in Louisiana at 120 F is 18 feet, 6 inches. At 95 F, this same line should be at 20 feet. Although the accident occurred in August, Entergy’s surveyors measured the line in February when the temperature was 41 F and recorded a measurement of 21 feet 9 inches, and in March when it was 67 F and the | fiIine measured 19 feet, 9 inches. Nethken measured the line in August, when it is obviously hotter than February or March, of the same year and recorded a measurement of 17 feet, 9 inches. Consequently, Nethken’s theory was that at a temperature of 120 , the line would be as low as 15 feet, 9 inches which would be far from the requirements of the NESC. Nethken asserted that the line had a sag of 16 feet which would be easily observed by someone trained to inspect electrical lines. However, it is important to note that Nethken admitted that had Hayes unloaded the shear at any other point along the line, he would not have been electrocuted, or better still, had he unloaded the shear in the clearing on the opposite side of the road rather than 10 feet from the line, he would not have been electrocuted.

Upon cross examination, Nethken admitted that all of his measurements were post accident measurements, and that he had no idea what the height of the shear was at the time of the-accident. Nethken also stated that he could not say whether any contact between the shear and the line altered the height of the line at the time of the accident. Finally, Nethken admitted that Hayes deviated from the appropriate standard for parking and unloading underneath electric lines in disregard for the manufacturers’ warnings for the machine he was operating.

In response, Entergy called Frederick Brooks (“Brooks”) as an expert in electrical engineering and accident reconstruction and the application of NESC and Occupational Safety and Health Administration (OHSA) standards. He testified that Nethken’s method of measuring allowed for a greater opportunity for error, and that there was no way that the line could 17have sagged with any change in temperature to the degree asserted by Nethken. Brooks also testified that Hayes failed to follow OSHA regulations in that he parked the trailer under the electrical line, that he should not have exited his cab without lowering the shear head to the deck of the cab, and that he should have applied the parking brake. Brooks further stated that the sole cause of this accident, even if he were to accept Nethken’s measurements, was Hayes’ decision to unload the shear under the electrical lines. From his investigation, Brooks concluded that as Hayes was backing the shear off the lo-boy he noticed that something was amiss, such as the shear head being caught in the line, and when he took his glasses in his hand and stepped onto the deck of the lo-boy, he suffered an electrical shock. Brooks also surmised that the fact that the shear was coming off of the lo-boy in a crooked manner was suggestive of Hayes’ inability to handle the machine or that something had gone awry during the unloading process.

Despite these differing opinions, it is well accepted that the trier of fact is charged with the determination of what credibility it assigns to expert witnesses and the decision about which expert among those testifying is more credible. Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682. The jury obviously chose to reject the testimony of Nethken. Credibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error. Id.

|sWe find that the jury’s determination of no liability on the part of Entergy in this case to be reasonable in light of the record before us. The evidence establishes that all of the other electrical lines that cross Holmon Road far exceed the minimum requirements of the NESC except for the spot where Hayes was killed. The testimony of Brooks established that it was quite possible that the shear head pulled the wire down. Moreover, although the evidence also established that Entergy employees were not aware of the height requirements for electrical lines and that Entergy did not have an inspection team of employees who were responsible for making sure that electrical lines that it put up were in compliance with NESC standards, we find that such an onerous program is unnecessary for Entergy to discharge its responsibilities to the public. It is undisputed that Hayes made the unfortunate decision to unload a piece of machinery that he was not qualified to drive under an electric wire when he could have safely unloaded it in the clearing across the street. The jury was not manifestly erroneous or clearly wrong in finding no liability on the part of Entergy, and their decision to find the defense expert more credible than the plaintiffs, expert should not be overturned.

Jury Charges

The family asserts that the, trial court erred when it failed to instruct the jury .on the comparative fault factors outlined in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). They contend that the court’s failure to utilize the Watson factors was undúly prejudicial in that it spoke only of the reasonable person standard, and the charge led the jury to believe that Hayes 13was negligent in causing his own harm. An analysis of the Watson factors include: 1) whether the conduct resulted from inadvertence or involved an awareness of the damages; 2) how great a risk was created by the conduct; 3) significance of what was sought by the conduct; 4) the relative capacities of each, whether superior or inferior; and 5) any extenuating circumstances which might have required the individual to proceed in haste, without proper thought. As a critical component in evaluating Enter-gy’s fault and negligence, the jury has to be charged with the proper instructions to inform the jury of Entergy’s duties. Of specific importance are proposed jury' in-' structions Nos. 5, 6, and 11 which precisely enumerated Entergy’s duties with regard to its superior knowledge. The family contends that the court’s refusal to allow these particular instructions deprived the jury of an opportunity to fairly evaluate the facts and the law and amounted to an undue prejudice to their case:

Proposed Jury Instruction No. 5 states:

The utility’s duty to take reasonable measures to show that workers legitimately in they are able to work without an unreasonable risk of harm from high voltage transmission lines.
Weaver v. Valley Elec. Mem. Corp., 615 So.2d 1375 (La.App. 2d Cir.1993).

The jury was instructed that Entergy has a duty “to guard against reasonably foreseeable hazards,” so this proposal is encompassed by that statement. Secondly, the Family asserts that it was error for the trial court to omit Proposed Jury Instruction No. 6., which states,

Even more than the ordinary reasonable person, a power company is required to recognize and make reparation for a risk that takes effect through another’s foreseeable negligence. | in It is not due care for the transmitter of high voltage electricity, who is charged with protecting and practicing electrical safety measures against the risk of injury from contact by another with transmission lines, to rely on another to exercise due care for his or her own protection when the transmitter has superior knowledge of the danger of high voltage and a greater experience with electrical safety measures that should be employed.
Weaver v. Valley Elec. Mem. Corp., 615 So.2d 1375 (La.App. 2d Cir.1993).

We find that this statement is subsumed within the existing instructions as it speaks to the duty of Entergy to guard against foreseeable negligence and hazards.

Finally, the family asserts that the omission of Proposed Jury Instruction No. 11 was error. It states,

Entergy is responsible for maintaining the safety of its power lines. The National Electrical Safety Code sets regulations for, among other things, proper height of power lines. The Code requires energized lines such as the one involved in the accident to have a minimum height of 18.5 feet at a temperature of 120.

We find that the omission of this instruction was proper because it may have mislead the jury to the conclusion that noncompliance with the NESC is determinative of fault. We find no manifest error in this omission.

Consequently, the family’s claim regarding the jury charges is without merit. Trial courts are given broad discretion in formulating jury instructions, and it is well accepted that a trial court judgment will not be reversed so long as the charge correctly states the substance of the law. Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017. The omission of a specific Watson charge is immaterial. Jury Interrogatory No. 1, asked:
lnDo you find that the plaintiffs have established by a preponderance of the evidence that Entergy Corporation was at fault which caused or contributed to the cause of the death of Prentice Hayes on August 23,1999?
The jury responded that they did not find that the plaintiffs met their burden of proof in demonstrating that Entergy was at fault or contributed to Hayes’ death. The jury’s negative response precluded any further discussion of comparative fault. Despite that fact, the jury was still instructed as to comparative fault.
The jury instructions stated:
In assigning degrees or percentages of fault to the various persons involved in this incident, you may find it helpful to measure their conduct against the conduct of the person the law describes as the reasonably prudent person. The reasonably prudent person will avoid creating an unreasonable risk of harm. In determining whether a person will avoid creating an unreasonable risk of harm, you may weigh the likelihood that someone might have been injured by the person’s conduct and the seriousness of that injury against the importance to society of what the person was doing and the advisability of the way in which he was doing it, under the circumstances.
The greater the deviation made by a person from this standard, the greater should made his degree or percentage of fault combining with others to cause this incident.
A reasonably prudent person is required to make use of his faculties of sight, hearing and intelligence to discover dangers and hazards to which he is or may be exposed, and if he is injured as a result of his failure to use his faculties to observe and discover a hazard which would have been observed by a person exercising due care, you may conclude that he was negligent in causing his own harm.

We find that the jury was adequately instructed as to the duty of Entergy, as the foregoing adequately addressed the substance of the law on comparative | ^negligence without a specific Watson charge. Proposed jury instruction 5 was properly encompassed in the existing instruction. Instructions 6 and 11 were properly excluded as they were incomplete and misleading.

CONCLUSION

In sum, the jury made a credibility determination after hearing all of the facts and evidence presented in this matter and such a finding should not be disturbed absent manifest error. No such error exists in the instant matter. Costs are assessed to appellant.

AFFIRMED.


author: J^DREW, j.

text:
    McKOIN STARTER AND GENERATOR, INC., Plaintiff-Appellant, v. SNAP-ON CREDIT CORPORATION and Sun Electric Corporation, Defendants-Appellees.
    No. 37,210-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.
    Rehearing Denied Aug. 14, 2003.
    Neal G. Johnson, Lafayette, for Appellant.
    Taggart, Morton, Ogden, Staub, Rouge-lot & Obrien, LLC, by Kevin M. Wheeler, Michael W. Hill, New Orleans, for Appel-lees.
    Before BROWN, DREW and MOORE, JJ.
   J^DREW, j.

This appeal by McKoin’s Starter & Generator Service, Inc., arises from a judgment sustaining an exception of venue on behalf of defendants, Snap-On Credit Corporation and Sun Electric Corporation. Defendants have answered the appeal seeking damages for frivolous appeal. We reverse and remand, rejecting defendants’ demand for damages.

FACTS

McKoin is a small business located in Monroe, Louisiana. Sometime in 1995, Jack McKoin, on behalf of the business, executed a contract with Sun to purchase a piece of automotive diagnostic equipment and its related software for an agreed price of $29,457.75. The description of this equipment in the agreement reads “MCS2500400,” and the serial number of the equipment is given as “1193A0114.” This agreement is undated, but the parties agree that it was executed in early December 1995. The back of this agreement sets out the terms and conditions of the sale and provides, in part:

15. Choice of Law. This Agreement shall be deemed to have been made in Crystal Lake, Illinois, regardless of the order in which the signatures of the parties shall be affixed, and the validity, performance and construction of this Agreement shall be governed by the laws of the State of Illinois.
PURCHASER AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS IN ANY ACTION TAKEN BY SELLER RELATING TO THIS AGREEMENT OR ANY PROVISIONS, RIGHTS OR REMEDIES HEREOF. PURCHASER FURTHER AGREES THAT ANY ACTION TAKEN BY PURCHASER AGAINST SELLER RELATING TO THIS AGREEMENT OR ANY PROVISIONS, RIGHTS OR REMEDIES HEREOF SHALL BE TAKEN IN THE COURTS OF THE STATE l,OF ILLINOIS AND SHALL NOT BE TAKEN IN ANY OTHER JURISDICTION. PURCHASER RECOGNIZES THAT THIS COVENANT IS AN ESSENTIAL PROVISION OF THIS AGREEMENT, THE ABSENCE OF WHICH WOULD MATERIALLY ALTER THE CONSIDERATION GIVEN BY PURCHASER TO SELLER HEREUNDER. PURCHASER HEREBY WAIVES TRIAL BY JURY. (Emphasis and capitalization in original.)

This provision is the fourth of four provisions (out of 18) that are at least partially highlighted and printed in all capital letters. The sale agreement also provides in part in Section 11 that, “No action resulting from or arising out of any claimed breach of this Agreement may be brought by either party more than 2 years following the date of original invoice of the Equipment.” In Section 3, the sale agreement further specifies that payment terms are net 30 days from the date of the invoice.

For reasons not plain from the face of the documents, on December 26, 1995, McKoin executed a document styled “Equipment Lease” with Snap-On Credit. This second contract provided that McKoin was leasing the equipment, bearing the same model and serial numbers as the equipment in the sale agreement, from Snap-On Credit for 60 months with the final “buyout” payment to be $1.00. Sun is not mentioned in this agreement. On its front, the lease agreement provides in part that:

LESSEE HAS KNOWLEDGE OF, AND HAS BEEN OFFERED THE EQUIPMENT AT ITS CASH PRICE AND HAS ELECTED TO LEASE THE EQUIPMENT IN LIEU THEREOF.

The lease agreement provides on its reverse that:

| a6. Ownership.
6.1. The Equipment is, and shall at all times be and remain, personal property, and title thereto shall remain in Lessor exclusively, and Lessee shall have no right, title or interest therein except as expressly set forth in this Lease....
6.2. Upon complete performance by Lessee of all of the terms and conditions of this Lease on its part to be performed, including full payment of all amounts due under this lease, Lessor will transfer title of the Equipment to Lessee, and will deliver, on Lessee’s written request, written evidence of the transfer of such title.

This agreement had no choice of law provision but specified on its reverse that:

18. This Lease shall be construed in accordance with the laws of the state of location of the Equipment as set forth above.

The agreement further provides in Section 19, in part, that:

This constitutes the entire agreement of the parties hereto and no waivers or modifications shall be valid unless in writing and signed by both parties.

In 1996, McKoin filed suit against Sun and Snap-On Credit in the Fourth Judicial District Court, Ouachita Parish, Louisiana. Paragraph 8 of McKoin’s petition specifies:

The total consideration for the sale was $29,457.75, for which Petitioner tendered a down payment of $1,282.12. The remainder of the consideration was represented by a credit sale agreement with Snap-On.... Under the terms of such agreement, Petitioner was required to purchase property casualty insurance for $1,045.00, and pay incidental charges of $80.00. Pursuant to said credit sale agreement, Petitioner paid installments in the amount of $6,855.86.

McKoin alleged that it was never able to get the equipment to work properly or in accordance with promised specifications and that Sun had failed to cure the problems and had finally picked up the equipment. McKoin further |4alleged that Snap-On Credit was the subsidiary of Sun and that both agreements were executed in Ouachita Parish. McKoin demanded rescission of the sale, refund of payments made and damages and attorney fees.

In response, Sun and Snap-On Credit filed an exception of venue. In the exception, the defendants urged that they were both subsidiaries of Snap-On Tools Company. The defendants urged that the choice of law provision in the Sun contract was enforceable as to both Sun and Snap-On Credit and that any lawsuit in this matter must be brought in Illinois. McKoin disagreed and noted that the contract was executed in Louisiana and that the plaintiff and all its witnesses are located in Louisiana. According to the minutes of court, on February 24, 1997, the court heard evidence on the exception and took the matter under advisement. No transcript of this hearing appears in the record. The court did not rule on the exception, and over the next two years, McKoin and Sun/Snap-On Credit filed supplemental memoranda in support of, and in opposition to, the venue exception. In their third supplemental memorandum in support of their exception, defendants asserted:

On or around December 1, 1995, Jack McKoin undeniably executed a Sale Agreement for the purchase of automotive diagnostic equipment (“equipment”) from Snap-On (“the Contract”)-The total consideration for the sale was $29,457.75. See Plaintiffs Petition at § 8.... On December 26, 1995, once it became apparent that plaintiff did not have the requisite funds to pay the entire purchase price, or otherwise was unable to procure financing, it entered into a credit sale agreement with Snap-On Credit Corporation.... The sole purpose of that credit sale agreement, however, was to provide financing to plaintiff for the purchase price of the previously sold equipment. See Plaintiffs petition at § 8.

| sEmphasis in original.

On March 14, 2002, the court signed a judgment sustaining the exception of venue based on the provision in the first contract. The court noted that, “there was also testimony at the hearing that Jack McKoin may not have read the back of the contract when he signed it....” The court found that McKoin had not carried its burden of proving the forum selection clause was invalid. McKoin thereafter filed a motion for new trial. The defendants responded with legal arguments to the contrary, and further stipulated that they would waive their defenses of prescription for a period not to exceed 30 days from the entry of judgment denying the motion for new trial. The court denied the motion for new trial and McKoin now appeals.

DISCUSSION

In this case, there are two contracts binding McKoin to two different entities with reference to the same piece of equipment. The trial court relied on language in the earlier agreement between McKoin and Sun and held that the parties had agreed to litigate their disputes in Illinois.

An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164. The record on appeal is that which is sent by the trial court to- the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments, and other rulings, unless otherwise designated. La. C.C.P. art. 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Reed v. Peoples State Bank of Many, 36,-531 (La.App.2d Cir.3/5/03), 839 So.2d 955. Statements in appellate briefs are not evidence. State in Interest of R.C. v. Clarke, 33,023 (La.App.2d Cir.10/27/99), 743 So.2d 843. As noted, this court has no transcript of the 1997 hearing in this matter, so our decision is based upon the record as it stands including the exhibits.

The contract of sale between McKoin and Sun • undeniably contains a forum selection clause limiting venue to Illinois. Forum selection clauses are legal and binding, and one seeking to set aside such a provision bears a heavy burden of proof. Such clauses are prima facie valid and should be enforced unless the resisting party clearly proves that enforcement would be unreasonable and unjust, or that the clause arises from fraud or overreaching, or that enforcement would contravene a strong public policy of the forum where the suit is brought. Pitts, Inc. v. Ark-La Resources, L.L.P., 30,867 (La.App.2d Cir.8/19/98), 717 So.2d 268.

However, the forum selection clause in this case does not exist in a vacuum, but instead is a part of the first of two contracts between McKoin and one of the two related Snap-On Tools defendants. The first contract in early December 1995 was a contract of sale, and it appears that McKoin and Sun agreed on the thing to be sold and the price to be paid. This agreement thus constituted a completed sale, La. C.C. art. 2456, and the parties were bound by the terms of the agreement, including the forum selection clause and the requirement that payment be made within 30 days.

Thereafter, according to the defendants, McKoin was unable to pay Sun the full amount of the purchase price. There is no evidence in the |7record to suggest that Sun attempted to enforce its rights under the contract of sale in an Illinois forum. Instead, the company made arrangements for the transaction to proceed through Snap-On Credit. Although the defendants characterize the second transaction as a credit sale, and the plaintiffs petition likewise refers to a credit sale, the contract the parties actually executed is plainly a financed lease. Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith. La. C.C. art.1983. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046.

The object of the lease is the same as the object of the original sale. The question is whether the forum selection clause in the contract of sale is enforceable despite the subsequent execution of the contract-of lease.

We hold that the execution of the second agreement extinguished the parties’ rights and liabilities under the contract of sale, and the trial court made a legal error in concluding otherwise. Although Sun and Snap-On Credit are separate entities, they are both apparently subsidiaries of the same company, Snap-On Tools. In the respective agreements, Sun and Snap-On Credit both asserted ownership of the diagnostic equipment. Sun, as the seller in the first agreement, asserted that it was the owner by virtue of the sale itself; La. C.C. art. 2452 provides that “The sale of a thing belonging to another does not convey ownership.” In the Snap-On Credit lease, Snap-On Credit was to retain ownership of the equipment as is traditional under a Idease, and the agreement did not specify that the equipment belonged to Sun. La. C.C. art. 2681. Such contracts are explicitly approved by La. R.S. 9:3302, which provides:

It is declared to be the policy of this state to encourage and foster the leasing of movable property to individuals and businesses, thus promoting economic growth and development. To this end, financed leases, which have previously been construed as conditional sales transactions, are hereby recognized as valid and enforceable in this state.

By virtue of retention of title with the lessor, financed leases are distinctly different from a contract of sale.

The lease does not explain how Snap-On Credit, rather than Sun, became the owner of the equipment after the sale from Sun to McKoin was perfected. The defendants assert in brief that the lease agreement was simply a method of financing the previously completed sale, but the terms of the written lease agreement do not support that assertion, and statements in brief do not constitute evidence. Whatever the relationship between the defendants, Snap-On Credit’s assertion of ownership of the equipment in the lease establishes that these related defendants considered the first contract impossible to conclude by MeKoin’s performance at the time the lease was executed.

La. C.C. art. 1879 provides:

Novation is the extinguishment of an existing obligation by the substitution of a new one.

La. C.C. art. 1880 provides:

The intention to extinguish the original obligation must be clear and unequivocal. Novation may not be presumed.

l9La. C.C. art. 1881 provides:

Novation takes place when, by agreement of the parties, a new performance is substituted for that previously owed, or a new cause is substituted for that of the original obligation. If any substantial part of the original performance is still owed, there is no novation.
Novation takes place also when the parties expressly declare their intention to novate an obligation.
Mere modification of an obligation, made without intention to extinguish it, does not effect a novation. The execution of a new writing, the issuance or renewal of a negotiable instrument, or the giving of new securities for the performance of an existing obligation are examples of such a modification.

By the abandonment of the perfected contract of sale and the subsequent perfection of the lease agreement, the defendants novated the original obligation. The parties thus agreed that a new performance by McKoin (payment over time of the lease to Snap-On Credit) was to be substituted for the prior sale agreement requiring payment of the price of the equipment to Sun within thirty days of the invoice. This is not merely the execution of a new writing or the giving of security; the original sale was either terminated or rendered impossible by the subsequent lease and thus was extinguished. The intent to extinguish the original obligation was clear; as noted, the lease agreement provided that:

This constitutes the entire agreement of the parties hereto and no waivers or modifications shall be valid unless in writing and signed by both parties.

The lease does not in any respect incorporate the terms of the prior agreement, nor could it incorporate the venue selection provision in the contract of sale. La. R.S. 9:3803 provides, in part:

|1f>A. This Chapter shall apply to all leases of movable property located in this state, whether the property is initially leased in Louisiana or subsequently moved into this state.
B. Subject to the provisions of R.S. 9:3303(D), (E), and (F), a lease agreement affecting movable property located or to be located in Louisiana may provide that the transaction will be governed under the substantive laws of the state in which the lease is entered into or governed under the substantive laws of the state of the lessor’s residence, principal office, or incorporation or governed under the substantive laws of any other state having significant contacts with the transaction....
F. The following agreements by Louisiana lessees are invalid with respect to leases of movable property, or any modifications thereof, to which this Chapter applies:
(1) Agreements in which the lessee consents to the jurisdiction of another state.
(2) Agreements that fix venue.

Paragraph F prohibits any provision purporting to establish jurisdiction or venue in another state.

CONCLUSION

Because the lease agreement by its very nature, and by its terms, is fundamentally inconsistent with the prior contract of sale, the lease operated as a novation of the contract of sale. Accordingly, the terms of the contract of sale were not incorporated into the contract of lease. Because the contract of lease did not, and legally could not, contain a forum selection clause, the trial court erred in sustaining the defendants’ exception of venue. Accordingly, the trial court’s ruling is reversed and this case is remanded for further proceedings. Defendants’ demand for damages for frivolous ^appeal is denied. Costs of this appeal are assessed to defendants, Sun Electric Corporation and Snap-On Credit Corporation.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, DREW, MOORE, and TRAYLOR, JJ.

Rehearing denied.

      . The purchaser business name on this contract is given as “McKoin’s Starter & Alt Service” but there is no suggestion that this is a different entity from "McKoin’s Starter and Generator Service, Inc.”


author: |, STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Jamie Nicole SAYERS, Appellant.
    No. 37,241-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Louisiana Appellate Project, by G. Paul Marx, Lafayette, Indigent Defender Board, by William R. Warren, for Appellant.
    James M. Bullers, District Attorney, C. Sherburne Sentell, III, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   |, STEWART, J.

The defendant, Jamie Nicole Sayers, entered a guilty plea to one count of possession of methamphetamine, a violation of La. R.S. 40:967(C). She now appeals her sentence of three years at hard labor as excessive. We affirm.

FACTS

On June 2, 2001, a traffic stop in Shon-galoo, Louisiana, involving a drug arrest led police to visit a residence where the defendant was staying. The purpose of the visit was to check on the suitability of leaving the defendant’s sister, a minor child, with her. When the police arrived at the residence, they noticed rolling papers and a bag containing what appeared to be marijuana in Sayers’ open purse near the front door. The police then arrested Sayers, who advised them that there was an infant in a back room. While checking on the infant, the police noticed other items of drug paraphernalia about the house. Sayers was also caught trying to conceal a small plastic bag containing methamphetamine, which she held in her handcuffed hands behind her back. The police secured the residence and obtained a search warrant. They seized 7.62 grams of marijuana, drug paraphernalia, and items which could be used in the manufacture of methamphetamine.

The defendant entered a guilty plea to one count of possession of a Schedule II Controlled Dangerous Substance, methamphetamine, a violation of La. R.S. 40:967(C) punishable by not more than five years at hard labor and an optional fine. The trial court accepted the guilty plea and ordered a pre-sentence investigation (“PSI”) report. After reviewing the PSI report, |2the trial court sentenced the defendant to three years at hard labor with credit for time served and with a recommendation that a portion of the sentence be served in a substance abuse program. A timely filed motion to reconsider the sentence for excessiveness was denied. This appeal followed.

DISCUSSION

Sayers argues that the three year hard labor sentence is excessive because she is a first time felony offender with minor dependents and because the sentence of incarceration does not adequately address her substance abuse illness.

Where, as here, a defendant’s motion for reconsideration of sentence urges merely that the sentence is excessive, the defendant is relegated to a claim of constitutional excessiveness on appeal. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. This constitutional review turns on whether the sentence is grossly disproportionate to the seriousness of the offense or nothing more than a purposeless or needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Sutton, 32,-871 (La.App.2d Cir.1/26/2000), 750 So.2d 436. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Richardson, 545 So.2d 714 (La.App. 2d Cir.1989); State v. Sutton, supra.

13Á trial court has wide discretion to sentence within the statutory limits, and a sentence imposed within such limits will not be set aside as excessive absent a showing of manifest abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Sutton; supra.

The three year hard labor sentence was within the statutory limits of La. R.S. 40:967(C) for the possession of methamphetamine charge. In imposing the sentence, the trial court thoroughly considered the facts of the case and reviewed the PSI report which provided extensive information about the defendant’s background. The defendant, age twenty-three, had dropped out of school in the eleventh grade and had not obtained a GED. At the time of her PSI interview, she was residing with a parolee. Though she was a first time felony offender, her adult criminal history included convictions for theft by shoplifting, possession of marijuana, and traffic violations. After her arrest on the instant charge, she incurred subsequent charges including illegal use of a controlled dangerous substance in the presence of a minor, possession of marijuana, possession of drug paraphernalia, theft, and disturbing the peace. She was on probation for the latter charge at the time of sentencing.

Based on these factors, the trial court found Sayers to be a poor candidate for probation. The court noted that Sayers was a first time felony offender with responsibility for an infant. However, considering Sayers’ drug involvement and the fact that she had possessed drugs in the presence of the infant, the trial court believed the infant would be better off in another environment than what Sayers had been providing. Finally, the trial 14court concluded that a lesser sentence would deprecate the seriousness of the offense.

On this record, we do not find constitutional error. The mid-range sentence is lawful and supported by the defendant’s prior drug-related conviction and criminal history. The trial court considered all the circumstances of this case and recommended a treatment program as part of the incarceration. Giving due consideration to the facts of this case and the defendant’s background, we find that the sentence is neither grossly disproportionate to the offense nor shocking to our sense of justice. There is no showing of an abuse of discretion by the trial court in imposing a three year hard labor sentence under the facts and circumstances of this case. The sentence is not constitutionally excessive.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: I, GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Shanmarcus A. BUTLER, Appellant.
    No. 37,226-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Kenota Pulliam Johnson, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, William Edwards, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS and DREW, JJ.
   I, GASKINS, J.

The defendant, Shanmarcus A. Butler, was convicted by jury of armed robbery and attempted second degree murder. He was sentenced to serve 25 years at hard labor, without benefit of parole, probation, or suspension of sentence on the armed robbery conviction and 45 years at hard labor without benefit of parole, probation, or suspension of sentence on the conviction for attempted second degree murder, with the sentences to be served consecutively. He now appeals the convictions and sentences. We affirm.

FACTS

The victim, Emanuel Allen, III, worked the night shift in maintenance at an area casino and attended school during the day. On Sunday morning, March 11, 2001, Allen arose shortly before noon and went outside to warm-up his car, a 1975 blue Chevrolet Nova. He noticed a man on a little girl’s bicycle who kept passing by, looking at him. Allen went into the house for a short period of time.

When Allen returned to the car, he sensed someone behind him. He turned and saw the bicycle rider pointing a black .38 gun at him. Allen stated that the assailant, whom he later identified in court as the defendant, was slim with a short haircut. The defendant forced Allen into the car, got into the passenger seat, and gave Allen instructions on where to drive.

They went to a BMX park where Allen refused the defendant’s order to get into the trunk. They then drove to the former AT & T plant, where the defendant again told Allen to get into the trunk. When Allen continued to refuse, the defendant shot him in the head. The bullet entered below and | ^behind the left ear and exited close to the corner of the right eye. Allen was able to see the defendant get into the car.

Frederick Lea was driving in the vicinity of the former AT & T plant when he observed a blue Chevrolet with chrome wheels back out in front of him at a high rate of speed. The car was driven by a young black man. Lea then saw Allen SO-BO feet off the road and thought that he had either been stabbed or shot. Lea went to Allen’s aid and observed that he was bleeding heavily and his right eye was out of the socket. Lea called 911 and Allen was taken to an area hospital.

The bicycle ridden by the defendant was retrieved at Allen’s home. The defendant’s fingerprints were found on the bicycle. It was later determined that the bicycle belonged to the defendant’s 11-year-old sister.

An investigation by the police revealed that the defendant had been seen riding his sister’s bicycle prior to this offense. One witness told police that the defendant had approached him with a bag of car stereos, seeking to make a sale.

Allen’s car was found abandoned in southern Caddo Parish, near the homes of some of the defendant’s relatives. The stereo and amplifiers were missing from the car.

A warrant for the defendant’s arrest was issued. He was apprehended in Tulsa, Oklahoma, and returned to Shreveport. The defendant was charged with armed robbery and attempted second degree murder. Following a jury trial, the defendant was convicted of both charges and was sentenced as specified above.

|sThe defendant timely filed motions for post verdict judgment of acquittal and new trial, alleging that his convictions were contrary to the law and evidence and that there was insufficient evidence to support his convictions. He also filed a motion to reconsider his sentences, alleging only ex-cessiveness. All three motions were denied by the trial court. The defendant then appealed, arguing insufficiency of the evidence and excessive sentence.

SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence presented at trial was insufficient to support his convictions for armed robbery and attempted second degree murder. The defendant does not dispute that the offenses occurred, but argues that the evidence was insufficient to identify him as the person who committed the crimes.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, units denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by |4viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Thornton, 36,757 (La.App.2d Cir.1/29/03), 836 So.2d 1235.

The court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. State v. Williams, 448 So.2d 753 (La.App. 2d Cir. 1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. In the absence of an internal conflict with physical evidence, the testimony of one witness, if believed by the jury, is sufficient support for the requisite factual conclusion. State v. Clark, 33,794 (La.App.2d Cir.11/3/2000), 774 So.2d 291, unit denied, 2000-3511 (La.8/31/01), 795 So.2d 1209.

To convict a defendant of armed robbery, the state must prove: (1) the taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Jeselink, 35,189 (La.App.2d Cir.10/31/01), 799 So.2d 684. A dangerous weapon is any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(3).

IrTo convict a defendant of attempted second degree murder, the state must prove: (1) specific intent to kill and (2) the commission of an overt act tending toward the accomplishment of that goal. La. R.S. 14:27 and 14:30.1. Specific intent to kill may be inferred from a defendant’s act of pointing gun and firing it at a person. State v. Burns, 98-0602 (La.App. 1st Cir.2/19/99), 734 So.2d 693, unit denied, 99-0829 (La.9/24/99), 747 So.2d 1114.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Burns, supra.

There are several factors for evaluating the reliability of an identification, including: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the victim’s prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12.

Officer D.J. Wall of the Shreveport Police Department testified that he took crime scene photos where the carjacking began. He noticed a | fibicycle next to the carport, which was included in the photos. However, at that point, he didn’t realize it had any evidentiary value.

Patrick Beverly, the victim’s brother-in-law, testified that when he arrived home after the incident he noticed a bicycle by the side of the house. It was the same one in the photo taken by Officer Wall. Mr. Beverly told detectives he had never seen the bike before.

Wendy Beverly, the victim’s sister, testified that the victim lived with her, her husband and their daughter. She testified that the bicycle was not at the house when she left for work that morning and said that it did not belong to her 13-year-old daughter.

Caddo Parish Sheriffs Deputy Jermaine Kelly testified that he responded to an abandoned vehicle call on the day of this incident in south Caddo Parish near the DeSoto Parish line. A blue, four-door 1975 Chevrolet Nova was found in a muddy area. The vehicle was impounded.

Amy Chrietzberg, a Shreveport Police Department crime scene investigator and fingerprint examiner, was accepted as an expert in fingerprint identification and analysis. She described the crime scene at the former AT & T plant. She examined the victim’s car and the bicycle at the impound bay.

Officer Chrietzberg explained how the automated fingerprint identification system (AFIS) works. She processed a number of prints from the bicycle. She matched a print from the bicycle to known prints of the defendant and to his prints taken on the day of the trial. On cross 17examination, she agreed she couldn’t state when the prints were made on the bike. The defendant’s prints didn’t match any found on the victim’s car.

During the early stage of the investigation, Officer Chrietzberg went to the hospital to get the victim’s prints. He had obvious facial injuries with bandages on his head. He looked at a photo lineup but couldn’t make any identification.

Matthew Contario, age 16, said he knew the defendant from the neighborhood. Contario suffered an extreme case of “memory loss,” totally forgetting a lengthy police interview in this matter. At trial, he admitted that the defendant had tried to sell him a car stereo in the past. The defendant had a bag full of stereos at that time. Contario had seen the defendant riding a bicycle at an unknown time.

Joseph Olsen, age 16, testified that he knew the defendant from the neighborhood. Olsen had seen the defendant riding a “little girl’s bike,” at some time several weeks before this incident. At trial, he identified the bicycle from a picture. However, Olsen remembered seeing the defendant on “plenty of bikes.”

The victim’s vehicle was found in an area close to a Keithville, Louisiana, neighborhood where.the defendant’s aunt, Frances McNeil, and his cousin, David McNeil, lived. Elizabeth Jackson testified that she lived close to the McNeils and saw the defendant back in the neighborhood in March 2001. She then saw pictures on television with a news item regarding this incident.

|sThe state called David McNeil, the defendant’s cousin, to question him about an interview Detective Tom Oster conducted with him. McNeil denied that the interview occurred, denied saying he saw the defendant on the date of this incident, and denied saying that the defendant had mud on his shoes on that date.

Detective Oster of the Shreveport Police Department testified that he picked up the bike at the victim’s house and transported it to the impound facility. He also had the victim’s car impounded. It had been stuck in mud; the stereo system and amplifier were missing.

Prior to Detective Oster’s testimony concerning his interviews with Contario, Olsen, and McNeil, the court gave cautionary instructions regarding previous inconsistent statements of a witness. The jury was instructed that the testimony of a witness may be discredited by showing that the witness made a prior statement which contradicts or is inconsistent with his present testimony. The court further instructed that such prior statements are admitted only to attempt to discredit the witness, not to show that the statements are true. Detective Oster related the substance of his conversations with Contario, Olsen, and McNeil. Contario had told Oster that the defendant had a bag of car stereos a week before the incident and was trying to sell them. Contario said he saw the defendant on a bicycle on the day of this incident. Contario identified a picture of the bike the defendant had been riding on the day of this incident. He stated that the bicycle belonged to the defendant’s sister known as “Tooty.”

| aDavid McNeil told Oster that he saw the defendant on the day of this incident. The defendant had mud on his shoes. McNeil did not know how the defendant got to the neighborhood.

Oster described the photo lineup he made to show the victim while he was hospitalized. The photograph of the defendant then was different from his appearance in court. His hair at trial was in braids, and his moustache, goatee, and sideburns were thicker. When Oster showed the photos to Allen, Oster realized he couldn’t see well enough to view the lineup.

The defendant’s picture was placed in the media because the police had an arrest warrant and they had information that the defendant had left the area. Deputy Ricky Johnson testified that he picked up the defendant in Tulsa, Oklahoma, on a warrant in October 2001, seven months after this incident.

The defendant’s younger sister told Detective Oster the bicycle in the photo was hers and it was taken from her yard on the weekend of March 10-11.

Dr. Lou Smith testified at trial about the victim’s medical condition after the shooting. Her testimony was relevant to confirm why the victim couldn’t identify anyone at the photo lineup. She stated that she treated the victim after the shooting. He had a bullet entry wound behind the left ear and an exit wound in the corner of the right eye. The right eye was popped out of its socket and the pupil was not reactive. A CT scan showed that the Imvictim had some bullet fragments in the front portion of the brain with some slight brain damage. The victim also suffered damage to the nerves of the left side of the face which interfered with moving the eyelid. The record shows that the victim lost his sight in the right eye and suffered damage to the vision in the left eye.

At trial, Shanedra Cash, the defendant’s sister, identified a picture of her bicycle and testified that it had been stolen at a date she couldn’t remember. On cross examination, she said that her nickname was “Tooty.”

Comonesha Butler, also the defendant’s sister, identified a picture of the bicycle at trial and testified that it was stolen during “the beginning of’ March 2001.

The defendant argues that the only evidence against him is the fingerprint on the bicycle found at the victim’s home. He claims this is explainable because the bicycle belongs to his sister. He points out that it was stolen before this offense occurred. He contends that his fingerprints were not found on the car and he . was not found with any of the victim’s property. He notes that the victim was not able to pick him out of a photo lineup. The defendant argues that, even though he may have tried to sell car stereos in the past, that does not mean that he committed this offense.

The evidence is sufficient to support the conviction. The victim was in the presence of the defendant for approximately 15 to 20 minutes during the commission of the offense. While the victim was in the rehabilitation hospital shortly after the shooting, the police tried to show him a photo lineup. He said that he was “out of it” and had blurry vision. When shown l^the lineup, he could not make out the pictures. He said that he did not want to make an identification without being sure it was correct. The police never asked the victim to look at the photo lineup again after he got his glasses.

A picture of the defendant was published in the media sometime later. The victim was able to identify the defendant as the assailant from that photo. Although he was not able to see well from his left eye immediately after being shot, at trial the victim had glasses. The victim was “positive” of his in-court identification of the defendant as the person who took his car and shot him.

Further, the defendant was seen riding his sister’s bicycle close to the time of this offense and had tried to sell ear stereos from a bag to his friends. The stereo in the victim’s car was missing when it was recovered. The car was recovered soon after the offense, close to an area where some of the defendant’s relatives live, in a muddy area. Some of the relatives and a neighbor saw the defendant in their neighborhood on the day of the offense.

The evidence, viewed in the light most favorable to the prosecution, shows that the crimes charged were committed by the defendant. The defendant used armed force to take the victim’s car from him. The defendant also attempted to kill the victim by firing a bullet into his head. The victim was positive of his in-court identification of the defendant as the perpetrator. Allen had 15 to 20 minutes to observe his assailant and vividly recalled his face. The bicycle tends to corroborate the identification. The Injury believed the victim. Thus, the evidence is sufficient to support the convictions of the defendant for the charged offenses beyond a reasonable doubt. The defendant’s arguments to the contrary are without merit. The trial court correctly denied the motions for post verdict judgment of acquittal and new trial.

EXCESSIVE SENTENCE

On appeal, the defendant argues that his sentences are excessive, that the trial court erred in directing that the sentences be served consecutively, and that the trial court failed to adequately articulate reasons for the sentences, as required by La. C. Cr. P. art. 894.1.

The record reflects that the defendant timely filed a motion to reconsider sentence, which the trial court denied. However, in the motion, the defendant asserts only that his sentence is excessive. The defendant neither objected to the order that the sentences be served consecutively nor complained of failure to adequately articulate reasons for sentence under La. C. Cr. P. art. 894.1. Pursuant to La. C.- Cr. P. Art. 881.1, the failure to include a specific ground upon which a motion to reconsider sentence may be based precludes the defendant from raising the ground for relief on appeal. Thus, the defendant’s claim of sentencing error is limited to the issue of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Clark, supra.

A sentence is unconstitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless imposition of pain and suffering. State v. Lobato, 603 So.2d 739 (La.1992). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks our sense of justice. State v. Caraway, 28,769 (La.App.2d Cir.10/30/96), 682 So.2d 856, writ denied, 1999-2532 (La.2/18/2000), 754 So.2d 964; State v. Clark, supra. The sentence will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion to sentence within statutory limits. State v. Lobato, supra.

Prior to imposing sentence, the trial court conducted a hearing at which the victim’s sister, Wendy Beverly, testified concerning the impact of these offenses on the victim. The victim lost the sight in his right eye and suffered damage to the sight in the left eye. He had not been able to hold employment and he had constant headaches as well as persistent depression. He also had $20,000 in outstanding medical bills.

Detective Oster testified about his efforts to locate the defendant after the crimes were committed. He was told by people in the defendant’s neighborhood that the defendant said that he was saving a bullet for the detective.

Cathy Cash, the defendant’s mother, testified that the defendant hadn’t known his father, dropped out of school in the ninth grade, and was sent to juvenile boot camp for something she couldn’t remember. Ms. Cash said she had talked with the defendant about this incident and he told her “he didn’t do anything wrong.”

114The court gave extensive reasons for sentence. The court summarized the “tragic” facts of the case which led to “irreversible and permanent results” for the victim and the defendant. The victim lost the sight in his right eye and the vision in the left eye was impaired. There is also “a possibility of slight brain damage.”

The distinctive bicycle linked the defendant to the crimes. He was arrested on charges of false impersonation and carrying a concealed weapon in Oklahoma after domestic abuse allegations. The defendant was 19 years old at the time of these offenses. He had juvenile convictions for illegal possession of stolen property and for possession of controlled dangerous substances.

After being released from the Swanson Correctional Center for Youth and Rutherford House, the defendant absconded parole supervision. Before he absconded, he tested positive for cocaine, opiates and marijuana. He attended three schools, and had to repeat one grade due to excessive absenteeism. He also had a record of suspensions and disruptive behavior.

The court considered the defendant’s family situation and noted that he had a very loving mother. The defendant had fathered a child who was three years old at the time of sentencing. There was no evidence that the defendant had done anything to support the child.

The court noted that the evidence supported the charges of conviction as well as showing that the defendant had committed a kidnapping. There was no evidence that the defendant had expressed any remorse for what he did. The court was concerned that from the time of the carjacking until the | isattempted murder, the defendant intended to kill the victim because the defendant did nothing to conceal his identity. The court said “it is hard for me to imagine any attempted second degree murder more atrocious than this one.” Thus, the offense manifested deliberate cruelty and resulted in significant permanent injury. The court found that the defendant contemplated that his criminal conduct would cause serious injury. There was no indication of acting under strong provocation. There were no grounds tending to excuse or justify the criminal conduct, the goal of which was to obtain the victim’s car stereo. The only mitigating factor was the defendant’s youth.

In support of its decision to run the sentences consecutively, the court said the crimes went on for a period of time which was “excruciating for the victim in all respects.” The court held that “this is a set of felony crimes which cries out for consecutive sentences.”

The only issue properly before this court is constitutional excessiveness. The sentences imposed are legal and are less than the statutory máximums. The victim is severely and permanently disabled. The sentences are not grossly disproportionate to the severity of the offense. The defendant, with a record of larcenous offenses, intended to take the life of a human being just to steal a mere car stereo. He then showed absolutely no remorse. Under these circumstances, the sentences are not shocking to the sense of justice and are tailored to the offender and the offenses. We find that the sentences are not unconstitutionally excessive.

| ^CONCLUSION

For the reasons stated above, we affirm the convictions and sentences of the defendant, Shanmarcus A. Butler.

AFFIRMED.

      . Evidence of flight indicates a defendant’s consciousness of guilt and is a circumstance from which a jury may infer guilt. State v. Davies, 350 So.2d 586 (La.1977); State v. Brown, 24,840 (La.App.2d Cir.5/5/93), 618 So.2d 629, writ denied, 93-1449 (La.9/24/93), 624 So.2d 1222.


author: I,WILLIAMS, J.

text:
    Carey M. MARCHAND, Plaintiff-Appellant, v. Garey FORSTER, Administrator Defendant Appellee State of Louisiana Department of Labor and Dance Tech, Inc., Defendant-Appellee.
    No. 37,222-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Robert C. Oetjens, for Appellant.
    Norbert C. Rayford, Baton Rouge, for Appellee, State of Louisiana Department of Labor and Garey Forster.
    Clarence F. Favret, III, for Appellee, Dance Tech, Inc.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   I,WILLIAMS, J.

The claimant, Carey M. Marehand, filed a petition for judicial review of a decision of the Louisiana Department of Labor (“LDOL”) Board of Review affirming an administrative law judge’s denial of his request for unemployment compensation benefits. The district court affirmed the decision of the Board of Review and claimant appealed. For the reasons assigned below, we find no manifest error in the board of review’s finding that claimant’s separation from his part-time employment was not for “good cause.” However, we remand this case to determine claimant’s eligibility for benefits.

FACTS

Carey Marchand worked for Dance Tech, Inc. as a part-time lighting technician from December 18, 2000 through April 22, 2001. He worked three to four shifts a week operating dance floor lighting from 10:30 p.m. until about 2:30 a.m. the following morning. Prior to January 1, 2001, the establishment was operated by a previous owner unidentified by name anywhere in the record. Marchand was paid $50.00 per shift, which he took home without any tax withholding. When Dance Tech assumed operations on January 1, 2001, they adopted payroll practices which included withholding payroll taxes from their employees’ paychecks. This reduced Marchand’s take home pay from $50.00 per shift to a lower figure not specified in the record. Accordingly, Marchand asked for a pay raise which would allow him to continue receiving $50.00 in take home pay per shift. When he was denied the raise, he gave his two-weeks notice. On April 11, 2001, prior to the expiration of the two-weeks notice that he had given, |gMarchand quit his employment with Dance Tech altogether.

Marchand had also been employed full-time by Gunter Farms, Inc. which ceased operations due to bankruptcy in February of 2001. The record contains no evidence of when Marchand left the employment of Gunter Farms, Inc., the circumstances under which he left or his rate of pay during his employment.

On June 10, 2001, Marchand filed a claim for unemployment compensation benefits. Either at the time of or after filing his claim, Marchand was asked to fill out a form provided by the LDOL which requested that he provide the following information:

ANSWER THE FOLLOWING QUESTIONS CONCERNING YOUR SEPARATION FROM THE EMPLOYER LISTED BELOW.

The employer listed on the form is Dance Tech, Inc. LDOL also forwarded a notice of claim to Dance Tech on June 13, 2001, informing them of the claim for benefits made by Marchand. The record contains no evidence that Gunter Farms, Inc. was ever notified of the claim made by Marchand. The record is unclear as to why this evidence was omitted.

On July 5, 2001, the LDOL denied Mar-chand benefits on the ground that he left his employment to attend school and not for a good cause attributable to a substantial change made to the employment by his employer. Marchand appealed the denial. The appeal was heard by Administrative Law Judge James C. Jones on July 26, 2001, at which time Marchand testified regarding the circumstances under which he left Dance Tech. Dance Tech’s general manager, Philip Marino, participated at the | ^appeal hearing by telephone.

On July 31, 2001, the administrative law judge (“ALJ”) affirmed the decision of LDOL denying benefits to Marchand. Thereafter, Marchand appealed to the LDOL Board of Review, which affirmed the decision of the ALJ on September 7, 2001.

Marchand subsequently filed a petition for judicial review in the district court. The petition asserts not only that the ALJ and board of review erred in denying him benefits on the basis that Gunter Farms, Inc. was the sole base-period employer for the purposes of unemployment compensation benefits, but also that the ALJ erred in finding that he resigned from Dance Tech to attend school. After a hearing, the district court issued reasons for judgment, affirming the board of review’s decision which affirmed the denial of benefits by the ALJ. This appeal followed.

DISCUSSION

Appellant argues that the district court erred in affirming the board of review’s decision to affirm the denial of unemployment benefits under LSA-R.S. 23:1601(1). This statutory provision, which served as the basis for the initial denial of benefits by the LDOL and was affirmed in all subsequent administrative and judicial review, provides in pertinent part:

An individual shall be disqualified for benefits:

(l)(a) If the administrator finds that he has left his employment from a base period or subsequent employer without good cause attributable to a substantial change made to the employment by the employer.

In applying this disqualification provision LDOL determined that Marchand left his employment with Dance Tech on April 11, 2001, without 14good cause attributable to a substantial change made to the employment by the employer. To the contrary, the administrative law judge and the board of review found that Marchand left his employment with Dance Tech to attend school.

On appeal, Marchand contends the finding is unsupported by the evidentiary record and, even if it is supported, his voluntary departure from Dance Tech without good cause is not a basis for denying him unemployment benefits because his unemployment from his full-time job with Gun-ter Farms, Inc. should have been taken into consideration.

Evidentiary Support for Finding that Marchand Left Employment Without Good Cause

Marchand contends that the ALJ and the board of review were in error in determining that he left his employment with Dance Tech to attend school. While he admits that he was going to leave the job in late May to begin attending school, he denies that was the reason he left on April 11, 2001, approximately six weeks earlier than he had previously planned. Instead, Marchand claims he left because Dance Tech had reneged on a promise to increase his pay, because his nightly shift had been increased by an hour without an increase in pay and because Dance Tech had implemented new guidelines.

Our appellate review in this matter is expressly limited to questions of law. LSA-R.S. 23:1634(B). In the absence of fraud, the findings of the review board are conclusive as to the facts of the case if supported by sufficient evidence. LSA R.S. 23:1634(B); King v. Tangipahoa Parish Police Jury, 96-0934 (La.App. 1st Cir.2/14/97), 691 So.2d 194. Courts may not disturb factual findings of the review board when questions of weight and credibility are involved and when the conclusions are supported by sufficient evidence. Judicial review of the findings of the review board does not permit weighing of the evidence, drawing of inferences, reevaluation of evidence or substituting views of the court for that of the review board as to the correctness of the facts presented. Lewis v. Administrator, 540 So.2d 491 (La.App. 1st Cir.1989). Therefore, we must determine whether the facts are supported by competent evidence and whether the facts, as a matter of law, justify the review board’s decision. Landry v. Shell Oil Co., 597 So.2d 521 (La. App. 1st Cir.1992).

A claimant for unemployment benefits who has voluntarily left his employment bears the burden of proving by a preponderance of the evidence that he left his job for good cause attributable to a substantial change made to the employment by the employer. Guillot v. Arbor Group, LLC, 34,469 (La.App.2d Cir.3/2/01), 781 So.2d 864. After reviewing the transcript of the hearing before the ALJ and the exhibits considered therein, we find that the evidence supports the findings of fact of the ALJ that Marchand failed to meet that burden.

While the ALJ and the review board found that Marchand left Dance Tech to attend school, we need not agree as to the accuracy of that particular finding to conclude that Marchand failed to meet his burden. The testimony of Marchand reflects his dissatisfaction with Dance Tech’s withholding of payroll taxes, a practice apparently not employed by the previous owner of |fithe business, as the basis for his departure. He admits his rate of pay did not change, but his take home pay had been reduced by the new payroll practices. When the employer refused to give him a raise to elevate his take home pay to the pre-withholding levels, he gave his two-weeks notice. We refuse to recognize an employer’s practice of making appropriate tax withholdings from their employee’s paycheck as a “substantial change” to employment constituting “good cause” for leaving that employment. Nor is an employer’s failure to give an employee a raise after three months of employment a substantial change.

On appeal, Marchand has also listed the new guidelines adopted by the employer and an alleged increase in the duration of his shift as “good cause” for leaving the employ of Dance Tech. The record presented to the ALJ and upon which we must conduct our review is devoid of any evidence regarding these allegations and, accordingly, we find them to be without merit. Therefore, we detect no manifest error in the factual findings of the ALJ and board of review in this regard.

Whether Marchand’s Voluntary Departure from Dance Tech, Inc. Should Disqualify him from Receiving Unemployment Benefits?

Marchand argued before the district court that as a matter of law the factual finding regarding his departure from employment with Dance Tech, a part-time employer, cannot be used to disqualify him from benefits to which he is entitled as a result of his separation from Gunter Farms, his full-time employer. In support of this argument, Marchand cites this Court’s opinion in Franks v. Administrator, Department of Employment Security, 493 So.2d 699 (La.App. 2d Cir.1986).

In Franks, supra, this court held that the definition of “unemployment” as set forth in LSA-R.S. 23:1472(19)(a) deems an individual to be unemployed for the purposes of determining eligibility for compensation benefits “in any 'week of less than fulltime work if the wages payable to him with respect to such week are less than his weekly benefit amount.” Id., at 700. The court concluded that the claimant was still unemployed for the purpose of receiving benefits, even though he was working part-time, because his pay for such work was substantially less than his weekly benefit amount. Consequently, we concluded that voluntary separation from such part-time employment “had no effect on claimant’s eligibility to continue receiving unemployment compensation benefits.” Id.

Likewise, Marchand has argued that his eligibility for receiving unemployment compensation benefits as a result of .his separation from employment with Gunter Farms, Inc. should not be affected by his voluntary separation from employment with Dance Tech, whether or not good cause existed for the latter separation. The district court declined to address the merits of that argument noting that its role was to review the proceedings below and that the issue of eligibility for benefits under the Gunter Farms employment had not been properly placed before the ALJ and Board of Review.

We, likewise, cannot address on the record before us the merits of the argument made on the basis of this court’s holding in Franks, supra. The premise of the argument made by Marchand is that he made a claim for | ^unemployment benefits as the result of his separation from employment from Gunter Farms and that he met the requirements of eligibility for such benefits as outlined in LSA-R.S. 23:1600. Consequently, he alleges that the department erred in disqualifying him from receiving those benefits on the basis that he voluntarily left his employment with Dance Tech, his part-time employer. The veracity of this premise lies at the core of whether there is any merit to this assignment of error.

LSA-R.S. 23:1600 sets forth the requirements for an unemployed individual to be eligible to receive benefits. The first among these is that he make a claim for benefits in accordance with the provisions of LSA-R.S. 23:1621 and LSA-R.S. 23:1622. Those statutes provide as follows:

§ 1621.
Each employer shall post and maintain in places readily accessible to individuals performing services for him printed statements concerning benefit rights, claims for benefits, and such other matters relating to the administration of this Chapter as the administrator may by regulation prescribe. Each employer shall supply to such individuals copies of such printed statements or other materials relating to claims for benefits when and as the administrator may by regulation prescribe. Such printed statements and other materials shall be supplied by the administrator to each employer without cost to the employer.
§ 1622.
Claims for benefits shall be made in accordance with the provisions of this Chapter and such regulations as the administrator may prescribe.

The Chapter to which LSA-R.S. 23:1622 refers makes little reference to how an initial claim for benefits is made other than the fact that it is to be “taken” by “[a]n agent designated by the administrator.” LSA-R.S. 23:1624, |9 It is presumed the details regarding the manner in which claims are to be made are contained in departmental regulations not before this court.

Throughout all the administrative review channels and the initial judicial review before the district court, this matter has been discussed in the context of Mar-chand’s employment with Dance Tech. Whether this was a result of Marchand’s failure to properly make a claim under LSA-R.S. 23:1622 for benefits resulting from his separation from Gunter Farms is not evident from the record. Consequently, it is also unknown whether Marchand was eligible for unemployment compensation as a result of his separation from employment with Gunter Farms, and, if so, what his weekly benefit amount would have been.

It is clear that as early as the first administrative appeal before the ALJ, Marchand referred to his employment with Gunter Farms and expressed disbelief at the objections of Dance Tech in stating the following:

I mean, these — this won’t even go against Dance Tech Inc [sic] because I had only worked for them for less than four months, that quarter’s even kicked out.

If Marchand made an appropriate claim for unemployment compensation as a result of his separation from employment with Gunter Farms, a determination for his eligibility for benefits thereunder and in what amount is pivotal to whether Mar-chand’s departure from Dance Tech would serve as a disqualifying event. If, on the other hand, Marehand’s claim was not in accordance with the appropriate statutes and regulations for making a proper claim against Gunter Farms, and was instead made against Dance Tech, then the disqualification was correct as a matter of law.

[1()We believe that the ends of justice would be best served by remanding this matter to the board of review for the receipt of evidence on the question of whether a claim, as defined by statute and administrator prescribed regulations, was properly made by Marchand for unemployment compensation benefits resulting from his separation of employment with Gunter Farms, Inc. If the board of review determines that a proper claim was made, then it shall also make a determination with regard to the weekly benefit amount due, and whether the previous factual findings regarding Marchand’s departure from Dance Tech disqualify him from receiving that weekly benefit amount.

CONCLUSION

For the reasons herein assigned, we find no manifest error in the factual finding of the ALJ and LDOL Board of Review that Marchand failed to establish that he left his employment with Dance Tech for good cause attributable to a substantial change made to the employment by Dance Tech. We remand the matter to the LDOL Board of Review for a determination of whether Marchand made a proper claim for benefits as a result of his separation from employment with Gunter Farms, Inc. and, if so, for a further determination of what his weekly benefit would be and whether the facts surrounding his departure from Dance Tech serve to disqualify him from receiving those benefits.

REMANDED.