author: JjLEON A. CANNIZZARO, JR., Judge.

text:
    Narvey DANIELS v. KELLER SUPPLY, INC.
    No. 2002-CA-2767.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 2003.

      James Maher, III, New Orleans, LA, for Plaintiff/Appellant, Narvey Daniels.
    Kevin A. Marks, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for DefendanVAppellant, Keller Supply, Inc.
    (Court Composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

The plaintifiyelaimant, Narvey Daniels, and the defendant, Keller Supply, Inc. (“Keller Supply”), appeal a judgment of the Office of Workers’ Compensation awarding Daniels medical benefits, penalties, and attorney fees.

FACTUAL AND PROCEDURAL HISTORY

On Thursday morning, October 5, 2000, Daniels, a truck driver, was involved in an accident while in the course and scope of his employment with Keller Supply. At the time, Daniels was driving a delivery truck loaded with plumbing supplies on Veterans Boulevard when a section of the road suddenly collapsed, causing the truck’s rear axle to fall into the sinkhole that resulted as the ground beneath gave way. Daniels reported no injuries at that time and completed his delivery route that day in another vehicle. The following day he returned to Keller Supply and worked a full duty shift.

On Saturday, October 7, 2000, Daniels went to the emergency room at Memorial Medical Center, complaining of neck pain. A physician examined Daniels, x-rayed his neck, prescribed medication, and sent him home to rest.

|gOn Monday, October 9, 2000, Daniels notified Johnnie Lowell Thomas, his supervisor at Keller Supply, that he was experiencing pain and could not work. Mr. Thomas scheduled an appointment for Daniels to see the company doctor, Robert Segura, M.D. The next day Dr. Segura was unavailable so Paul Naccari, M.D., Dr. Segura’s associate, examined Daniels and diagnosed his injury as cervical and lumbar sacral muscular strain. Dr. Naccari restricted Daniels to light duty work, which included no driving and no lifting more than twenty pounds. He also requested that Daniels return for a follow-up examination in one week. Although Keller Supply had light duty work available, Daniels did not return to work until October 25, 2000, more than two weeks later.

In the meantime, Daniels returned for follow-up examinations by Dr. Segura on October 18 and 24 and November 1 and 16, 2000. Dr. Segura found no objective signs of injury and opined that based on his subjective complaints Daniels was suffering from cervical strain. As per Dr. Segu-ra’s recommendation, Daniels applied heat to his neck and back, did stretching exercises, and gradually increased his daily activities. At the November 16th visit, Dr. Segura found Daniels’ condition had improved and released him to return to full duty work.

On December 26, 2000, Daniels returned to Dr. Segura, complaining of occasional soreness and discomfort. Upon examination, Dr. Segura found no objective signs of injury but suggested that Daniels obtain a second opinion from Chad W. Millet, M.D., another orthopedist.

Dr. Millet examined Daniels on January 9, 2001, and diagnosed his complaints as mild cervical and lumbar strain. He found no objective injuries to the wrists, hands, arms or shoulders at that time. Dr. Millet opined that Daniels was doing quite well and could continue to work full duty with no restrictions.

IsStill experiencing neck, shoulder, back and arm pain, Daniels elected to see another orthopedist, S. Daniel Seltzer, M.D., on February 7, 2001. Upon examination, Dr. Seltzer noted that Daniels had neck tenderness and lower back and arm pain. Based on these findings, Dr. Seltzer recommended that Daniels undergo both an electromyogram (“EMG”) and a magnetic resonance image (“MRI”). On March 8, 2001, Daniels underwent an MRI. Based on Daniels’ subjective complaints and the diagnostic test results, Dr. Seltzer concluded that he had prior narrowing of the cervical spine (stenosis) and degenerative disc disease and, as a result of the accident, sustained additional disc herniations. Daniels later underwent an EMG and a nerve conduction study, which Dr. Seltzer opined disclosed midcervieal radiculopathy (diseased roots of the mid cervical spinal nerves) and carpel tunnel syndrome in both wrists. Between March 1, 2001 and March 22, 2002, Dr. Seltzer treated Daniels on fourteen occasions.

Daniels returned to full duty work at Keller Supply in November 2000 and worked the next ten months without complaint until he voluntarily resigned on September 21, 2001. On September 24, 2001, he went to work for Southland Plumbing, Inc. (“Southland”), Keller Supply’s competitor. At the time, Daniels informed no one at Southland that he had a prior work related accident or that he was undergoing medical treatment. In November 2001, Southland received a subpoena in a lawsuit Daniels had filed against Jefferson Parish for the injuries he allegedly sustained in the October 5, 2000 accident. Southland then had Daniels examined by its company doctor, Dabney Ewing, M.D., at Concentra Medical Center on November 28, 2001. After examining Daniels and reviewing his medical records from Dr. Seltzer, Dr. Ewing concluded that Daniels was unfit to | ¿work as a delivery driver for Southland. Southland terminated Daniels the following day.

Meanwhile, on September 28, 2001, Daniels filed a disputed claim for compensation with the Office of Workers’ Compensation, alleging that he sustained two herniated discs in the October 5, 2000 work related accident and, as a result, was permanently disabled. He further alleged that Keller Supply failed to authorize medical treatment and his choice of a physician. Keller Supply received notice of the disputed claim on December 20, 2001. In its answer filed on January 3, 2002, Keller Supply denied that Daniels had sustained any injury or disability in the work related accident.

At the trial on June 3, 2002, the parties stipulated that Daniels was in an accident on October 5, 2000 while in the course and scope of his employment with Keller Supply and that no medical or indemnity benefits were paid in connection with the accident. In addition to live testimony from fact and expert witnesses, Daniels’ medical and employment records, the depositions of Drs. Segura and Millet, and a surveillance video were introduced into evidence.

Following the trial, the workers’ compensation judge rendered judgment in favor of Daniels, awarding him all medical expenses, including mileage, as well as attorney fees in the amount of $2,500.00 and a penalty of $2,000.00. She determined that Keller Supply had failed to authorize and/or pay medical benefits and did not reasonably controvert the claim nor demonstrate that nonpayment of the medical benefits resulted from conditions over which it had no control.

Daniels appeals raising three assignments of error: 1) the workers’ compensation judge failed to make specific awards for past and future medical expenses; 2) failed to award him the costs of his expert witness fees; and 3) failed | Rto award him temporary total disability benefits and/or supplemental earning benefits. Keller Supply, on the other hand, assigns as error the workers’ compensation judge’s award to Daniels of medical benefits and expenses as well as penalties and attorney fees.

STANDARD OF REVIEW

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164; Banks v. Industrial Roofing & Sheet Metal Works, 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying the manifest error — clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Seal, 97-0688 at p. 4, 704 So.2d at 1164. Where two permissible views of the evidence exist, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Id. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, 96-2840 at p. 8, 696 So.2d at 556.

APPLICABLE LAW AND DISCUSSION

Indemnity Benefits

At the outset, we address the issue of whether Daniels is entitled to temporary total disability and/or supplemental earning benefits. Daniels contends that the workers’ compensation judge correctly determined that he was injured in |fithe work-related accident but erred in not awarding him temporary total disability and/or supplemental earnings benefits. Daniels relies on Dr. Seltzer’s opinion that he suffered a 20 to 25 percent whole body impairment due to the condition of his cervical spine and a 5 to 15 percent impairment of the right upper extremity due to carpal tunnel syndrome following the accident. Keller Supply counters that any injury Daniels may have sustained in the accident neither rendered him temporarily disabled nor entitled him to supplemental earnings benefits as evidenced by the medical evidence that he could return to light duty work and that he did, in fact, return to full duty work shortly after the accident.

To establish entitlement to workers’ compensation benefits, a claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). For an employee to establish entitlement to temporary total disability benefits, he must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment, regardless of its nature, and including employment while working in pain. La. R.S. 23:1221(1)(c). Coats v. American Telephone and Telegraph Co., 95-2670, p. 8 (La.10/25/96), 681 So.2d 1243, 1247. The burden of proving the existence of a fact by clear and convincing evidence requires that its existence be highly probable, that is, much more probable than its non-existence. Scherer v. Interior Plant Design, 98-702, pp. 4-5 (La.App. 3 Cir 10/28/98), 724 So.2d 797, 800.

The purpose of supplemental earnings benefits is to compensate an injured employee for the wage earning capacity he has lost as a result of his accident. _JjBanks, 96-2840 at p. 8, 696 So.2d at 556. Pursuant to the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Seal, 97-0688 at p. 8, 704 So.2d at 1166. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker’s compensation law is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989).

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for supplemental earnings benefits or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Daigle, 545 So.2d at 1009.

The evidence in the record indicates that Dr. Naccari found no objective signs of injury but determined that Daniels had sustained cervical and lumbar sacral muscular pain as a result of the accident. Dr. Naccari released him to return to light duty work immediately after the accident. Mr. Thomas, Daniels’ supervisor, testified that Keller Supply had light duty work available at that time, but Daniels did not return to work. Although Daniels testified that he failed to return to work because he thought light duty work was unavailable, he acknowledged that he never contacted Mr. Thomas to ascertain if, in fact, it was |savailable. Daniels eventually returned to work on October 25, 2000, at which time Keller Supply placed him on light duty.

After examining Daniels on November 16, 2000, Dr. Segura released him to return to full duty work. Shortly thereafter, Dr. Millet, too, determined that Daniels could work full duty with no restrictions. It is undisputed that Daniels returned to full duty work in November 2000 and performed regular duties at Keller Supply for the following nine months, including delivering plumbing supplies, moving and lifting toilets, tubs, showers and water heaters. The evidence also indicates Daniels worked full duty while being treated by Dr. Seltzer from February 7, 2001 until November 29, 2001, when Southland, his new employer, terminated him.

The workers’ compensation judge determined that Daniels sustained an injury in the October 5, 2000 accident but was not entitled to temporary total disability benefits or supplemental earnings benefits because the medical evidence introduced at trial did not place him in “a no work status” and Keller Supply had light duty work available. After considering the evidence in the record, we find Daniels did not prove by a preponderance of the evidence that he was physically unable to engage in any employment or that the injury resulted in his inability to earn ninety percent (90%) of his average pre-injury wage. Although the evidence reflects that Daniels made less money working at Southland than at Keller Supply, he acknowledged that he chose to take a decrease in pay because the Southland position provided an opportunity for advancement. Thus, the workers’ compensation judge did not err in finding that Daniels was entitled to neither temporary total disability benefits nor supplemental earnings benefits.

| aMedical Expenses

We now address the issues of ■ whether the trial court erred in awarding Daniels all medical expenses and whether the award included future medical expenses.

Am employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. La. R.S. 23:1203 A. The right to reimbursement for medical expenses is separate and distinct from the right to compensation. Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 9 (La.App. 1 Cir. 1/6/99), 733 So.2d 11, 19. Whether a claimant is entitled to medical benefits is a question of fact, and the fact finder’s resolution of that issue may not be disturbed on appeal in the absence of manifest error or unless clearly wrong. Id.

To recover medical expenses under La. R.S. 23:1203, the claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Montana v. City of New Orleans, 95-1701, p. 9 (La.App. 4 Cir. 6/5/96), 682 So.2d 239, 245, writ denied 96-2981 (La.1/31/97), 687 So.2d 412. An injured employee is not entitled to recover for medical expenses where he or she fails to substantiate a claim. Starks v. Universal Life Insurance Company, 95-1003, p. 5 (La.App. 1 Cir. 12/15/95), 666 So.2d 387, 391, writ denied 96-0113 (La.3/8/96), 669 So.2d 400. Nonetheless, when a claimant alleges that he incurred medical expenses and a bill supports that allegation, unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident, it is sufficient to support the inclusion of that item in the judgment. See Augustus v. St. Mary Parish School Board, 95-2498, p. 15 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1155.

|inAt trial, Daniels argued that he was injured in the work accident but obtained no relief from the care provided by Keller Supply’s company physicians, Drs. Naccari and Segura, or from Dr. Millet, to whom he had been referred by Dr. Segura. Thus, Daniels argued that pursuant to La. R.S. 23:1121 B he was entitled to seek treatment from Dr. Seltzer, his choice of a treating physician, and to be reimbursed for all medical expenses related to Dr. Seltzer’s treatment. Additionally, he argued that Keller Supply should reimburse him for the expense incurred from his visit to the Memorial Medical Center emergency room on October 7, 2000. In support of his claim Daniels introduced bills and invoices in the amounts of $285.00 for the cost of the emergency room visit at Memorial Medical Center; $1,025.00 for the cost of the MRI at Crescent City MRI; $1,276.00 for an EMG performed at Advanced Neurodiagnostic Services; and $1,564.00 for Dr. Seltzer’s office visits.

On appeal, Keller Supply does not dispute that Daniels had the right to select a treating physician pursuant to La. R.S. 23:1121 B. Rather, it contends that medical expenses are not warranted because Daniels did not prove that the treatment was necessary and related to the accident. Alternatively, Keller argues that, in the event we find no error in the workers’ compensation judge’s determination that Daniels was entitled to medical expenses, then its liability for the expenses should be limited to $750.00, pursuant to La. R.S. 23:1142 B.

La. R.S. 23:1142 provides, in part:

B. Nonemergency care. (1) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemer-gency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care Inprovider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
E. Exception. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

Under the exception set forth in La. R.S. 23:1142 E, when an employer or insurer has denied that a claimant’s injury is com-pensable, the statutory cap does not'apply. See Bolton v. Tulane University, 99-0970, p. 9 (La.App. 4 Cir. 3/1/00), 755 So.2d 1003, 1009

Daniels testified at trial that although he returned to work full duty in November 2000, he continued to experience pain as a result of the accident. Because he failed to obtain any relief from Drs. Naccari, Segura or Millet, on his attorney’s suggestion, he began seeing Dr. Seltzer in February 2001. While under Dr. Seltzer’s care, Daniels underwent a MRI on March 8, 2001, and an EMG on June 26, 2001. At no time did he notify Keller Supply that Dr. Seltzer was treating him or seek its consent prior to undergoing the diagnostic tests. The record reflects that Daniels filed his disputed claim for compensation on September 28, 2001, one week after he voluntarily resigned from Keller Supply. Keller Supply received notice of the disputed claim on December 20, 2001, and filed its answer denying that Daniel’s claim was compensable on January 3, 2002.

| ^Daniels had the right to select one treating physician regardless of whether or not he was satisfied with the treatment obtained by his employer’s physicians. See Smith v. Southern Holding, Inc., 2002-1071, p. 1 (La.1/28/03), 839 So.2d 5. Thus, Daniels had the right to seek treatment from Dr. Seltzer. Nonetheless, because Keller Supply did not deny that Daniels’ injury was compensable under La. R.S. 23:1021 et seq. until January 3, 2002, prior to that date, Dr. Seltzer, the healthcare provider, could incur no more than a total of $750.00 in nonemergency diagnostic testing or treatment without the mutual consent of Keller Supply and Daniels. After that date, however, Daniels was not required to obtain consent from his employer for treatment or diagnostic testing by Dr. Seltzer. Thus, in view of the workers’ compensation judge’s finding that Daniels sustained an injury in the accident, which we decline to disturb, she correctly determined that Daniels was entitled to medical expenses incurred as a result of his treatment by Dr. Seltzer. The expenses incurred prior to January 3, 2002, are limited to $750.00 pursuant to La. R.S. 23:1142 B. As to the expenses after January 3, 2002, the evidence in the record reflects that Dr. Seltzer treated Daniels on January 18, February 15, and March 22, 2002; the costs of these three office visits totaled $241.00.

Furthermore, Keller Supply did not dispute that Daniels went to the emergency room within forty-eight hours of the accident with complaints of neck pain, and was treated and prescribed medication. Thus, the introduction of the Memorial Medical Center bills into evidence at trial was sufficient to support the inclusion of the $285.00 emergency room expense in the judgment.

Future Medical Expenses

| is As to whether the workers’ compensation judge’s award of “all MEDICAL BILLS AND EXPENSES” should include future medical expenses, as claimed by Daniels, a preponderance of the evidence in the record does not support a finding that he is entitled to any future medical expenses. Dr. Seltzer testified that as a result of the accident Daniels developed carpal tunnel syndrome that would require surgery on both wrists at a total cost of $6, 970.00. Likewise, he opined that after reviewing the MRI results, Daniels sustained herniated cervical discs that would likely require future surgery. Notwithstanding his testimony, the other evidence in the record overwhelmingly supports the finding that future surgery is not warranted. Drs. Segura and Millet, both expert orthopedists, opined that as of January 9, 2001, Daniels had reached maximum medical improvement, could work full duty, and was in need of no further care. Daniels, himself, testified that he returned to full duty work in November 2000, worked for ten more months, and never complained to his supervisor that he was unable to work. When he went to work for Southland in September 2001, he worked full duty. Michael Marque, Daniels’ supervisor at Southland, testified that Daniels never complained of pain or appeared to be in any pain while working. Keller Supply also introduced into evidence a surveillance video taken on January 11, 12 and 15, 2001, which shows Daniels jumping in and out of the delivery truck, hanging from an overhead bar, lifting and moving tubs, showers, hot water heaters, pipes, and other heavy equipment. Collectively, the evidence clearly contradicts Dr. Seltzer’s opinion that Daniels’ accident-related injuries are disabling and will require surgery.

Penalties and Attorney Fees

|14We next address whether the workers’ compensation judge erred in awarding Daniels penalties and attorney fees.

A workers’ compensation judge’s award of penalties and attorney fees under La. R.S. 23:1201 is a factual determination and should not be disturbed on appeal unless clearly wrong. Fortenberry v. Bard, 2001-2195, p. 13 (La.App. 4 Cir. 10/16/02), 830 So.2d 1025, 1034, unit denied 2002-2797, 2002-2877 (La.2/14/03), 836 So.2d 119, 120.

La. R.S. 23:1201 E provides that medical benefits shall be paid within sixty days after the employer or insurer receives written notice thereof. Furthermore, the penalty provision, La. R.S. 23:1201 F, provides, in part:

Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

La. R.S. 28:1201 F is penal in nature and, therefore, must be strictly construed. See Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46. An award of attorney fees in a workers’ compensation case is intended to discourage indifference and undesirable conduct by employers and insurers. Id. The burden of proving entitlement to a penalty is on the claimant. Fortenberry, 2001-2195 at p. 14, 830 So.2d at 1035.

|1sIn the instant case, the workers’ compensation judge assessed a penalty of $2,000.00 and awarded $2,500.00 in attorney fees, stating in her judgment that:

Defendant EMPLOYER and Insurer DID Fail to Authorize and/or Pay Medical Benefits pursuant to La. R.S. 23:1201 E; and Defendant Employer DID NOT “Reasonably Controvert” the Claim NOR did it “occur due to conditions over which defendant had no control” under La. R.S. 23:1201 F.

After reviewing the evidence in the record, we find the trial court erred in assessing a $2,000.00 penalty against Keller Supply and awarding Daniels attorney fees of $2,500.00. Although Daniels testified that he presented the emergency room bill to his supervisor at Keller Supply for payment, which Mr. Thomas denied, he put forth no evidence to prove that Keller Supply ever received written notice pursuant to La. R.S. 23:1201 E that the emergency room expenses or any other medical benefits were due. Daniels acknowledged that he neither notified his employer that Dr. Seltzer was treating him nor requested that it pay for his services. Dr. Seltzer, too, testified that he demanded no medical payments from Keller Supply. Also, Daniels admitted that no one at Keller Supply ever told him that orthopedic treatment and/or diagnostic testing would not be approved. In view of the evidence, the workers’ compensation judge clearly erred in determining that Keller Supply failed to authorize and/or pay medical benefits.

Costs

Finally, we address whether the workers’ compensation judge abused her discretion in assessing to each party then-respective costs. Daniels contends that because Keller Supply has been cast in judgment it should reimburse him for Dr. Seltzer’s expert witness fees. We disagree.

hfiA workers’ compensation judge’s assessment of costs may be reversed on appeal only upon a showing of an abuse of discretion. Bourgeois v. Heritage Manor of Houma, 96-0135, p. 5 (La.App. 1 Cir. 2/14/97), 691 So.2d 703, 707. Regarding costs, La. R.S. 23:1317 B provides, in pertinent part:

Costs may be awarded by the workers’ compensation judge, in his discretion, and when so awarded the same may be allowed, taxed, and collected as in other civil proceedings. The fees of expert witnesses shall be reasonable and shall not be allowed unless fixed in the judgment.

Furthermore, La. R.S. 23:1310.9 provides:

If the workers’ compensation judge before which any proceedings for compensation or concerning an award of compensation have been brought, under the Workers’ Compensation Act, determines that such proceedings have not been brought on a reasonable ground, or that denial of benefits has not been based on a reasonable ground, the workers’ compensation judge shall assess the total cost of the proceedings to the party who has brought them or the party who was unreasonably denied payment of benefits.

Also, La. C.C.P. art.1920 states that costs shall be paid by the party cast “[u]nless the judgment provides otherwise.”

In the instant case, the Office of Workers’ Compensation judgment expressly provided that “ALL Costs of these proceeding [sic], including all depositions introduced into evidence, if any, ARE ASSESSED with Each Party to Bear Its Own Costs.” Clearly, the workers’ compensation judge, at her discretion, chose not to award Daniels the costs of Dr. Seltzer’s expert fees. Although she determined that Keller Supply wrongfully denied medical benefits and failed to reasonably controvert Daniels’ claim, which would have warranted an assessment of costs against it pursuant to La. R.S. 23:1310.9, we have concluded that those findings are not supported by the record. Keller Supply has appealed successfully, |17but unlike Daniels, it did not appeal the issue of costs. Thus, we decline to disturb the workers’ compensation judge’s assessment of costs in this matter.

CONCLUSION

Accordingly, for the reasons stated herein, the judgment of the workers’ compensation judge is reversed, in part, insofar as it awarded Daniels penalties and attorney fees. The judgment is amended, in part, to award Daniels the following medical expenses: $285.00 (the Memorial Medical Center emergency room costs); $750.00 (the medical expenses incurred for diagnostic testing and treatment by Dr. Seltzer prior to January 3, 2003); and $241.00 (the costs of Dr. Seltzer’s three office visits after January 3, 2003). In all other respects, the judgment is affirmed.

REVERSED IN PART; AMENDED IN PART; AFFIRMED IN PART.

      . The Louisiana Supreme Court granted writs in 2002-0922 (La.5/26/00), 762 So.2d 626 and 2000-0932 (La.5/26/00), 762 So.2d 627. However, on a joint motion of the parties, the Supreme Court dismissed both writ applications on October 10, 2000.


source: Caselaw Access Project

author: I, DAVID S. GORBATY, Judge.

license: Public Domain

text:
    Jon Mark PLUMB v. CITY OF NEW ORLEANS, New Orleans Police Department, State Farm Mutual Automobile Insurance Company and David Wilson. State Farm Mutual Automobile Insurance Company as Subrogee of The Estate of Gerald D. Katz v. David Wilson and The City of New Orleans.
    Nos. 2003-CA-0269, 2003-CA-0270.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 2003.

      George H. Troxell, New Orleans, LA, for Plaintiff/Appellant, John Mark Plumb.
    James R. Carter, Porteous, Hainkel & Johnson, New Orleans, LA, for State Farm Mutual Automobile Insurance Company.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, and Judge DAVID S. GORBATY).
   I, DAVID S. GORBATY, Judge.

In this appeal, plaintiff contends that the trial court erred in granting the summary judgment dismissing the Uninsured/Un-derinsured Motorist (“UM”) insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), from this litigation. For the reasons set forth below, we affirm. FACTS AND PROCEDURAL HISTORY

Plaintiff-Appellant was allegedly injured in an automobile collision with a New Orleans Police Department (“NOPD”) patrol car. At the time, David Wilson, the police officer driving the patrol car, was in the course and scope of his employment. Plaintiff filed suit against David Wilson, the City of New Orleans (“the City”); the NOPD, a department of the City; and State Farm, plaintiffs UM insurance carrier.

State Farm filed a Motion for Summary Judgment, arguing that because the City is self-insured, the State Farm policy excluded the patrol car from the policy definition of an uninsured motor vehicle. The trial court granted the motion and dismissed State Farm from the litigation. Plaintiff subsequently filed this appeal.

DISCUSSION

In its Motion for Summary Judgment, State Farm relied upon an exclusionary provision of its standard form policy that reads:

An uninsured motor vehicle under Coverage “U” does not include a land motor vehicle:
$ ‡ í|¡
3. owned or operated by a self-insurer under any motor vehicle financial responsibility law, a motor carrier law or any similar law;
4. owned by any government or any of its political subdivisions or agencies.

Since the City is self-insured, State Farm reasoned, UM coverage does not apply to this accident.

Citing Jones v. Henry, 542 So.2d 507 (La.1989), appellant argues that the UM statute prohibits the identical exclusionary provision for self-insured vehicles on which State Farm relies. In Jones, the Louisiana Supreme Court held, “Since the exclusion of self-insured vehicles from the definition of uninsured motor vehicles provides less coverage than contemplated by the statute, the exclusion is invalid ... [S]elf-insured vehicles are uninsured vehicles.” Id. at 508-509.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Potter v. First Federal Savings & Loan Ass’n of Scotlandville, 615 So.2d 318, 325 (La.1993); Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C. Civ. P. Art. 966(B).

| a Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Potter, 615 So.2d at 325; Schroeder, 591 So.2d at 345.

The Louisiana Motor Vehicle Safety Responsibility Law, La. R.S. 32:861(A)(1), provides:

Every self-propelled motor vehicle registered in this state except those motor vehicles used as agricultural or forest vehicles during seasons when they are not used on the highway, those used primarily for exhibit or kept primarily for use in parades, exhibits, or shows, and lease-bound mobile rig haulers as defined in Subsection D of this Section, shall be covered by an automobile liability policy with liability limits as defined by R.S. 32:900(B)(2) or 900(M), or a binder for same, or by a motor vehicle liability bond as defined by Subsection B of this Section, or by a certificate of the state treasurer stating that cash or securities have been deposited or securitized with said treasurer as provided by Subsection C of this Section, or by a certificate of self-insurance as provided by R.S. 32:1042.

Under La. R.S. 32:1042, the City, as a government entity, is exempt from providing a certificate of self-insurance. Therefore, the City, the owner of the vehicle in question, is self-insured.

La. R.S.- 22:1406(D)(3), as amended in 1991, provided:

Any party possessing a certificate of self-insurance as provided under the Louisiana Motor Vehicle Safety Responsibility Law, shall be an “insurer” within the meaning of the uninsured motorist coverage provided under the provisions of this Subsection.

In analyzing this amendment, legal commentators noted:

By Act 626 of 1991, the UM statute was amended to provide that anyone possessing a certificate of self-insurance under the Louisiana Motor Vehicle Safety Responsibility Law would be an “insurer” within the meaning of the UM coverage provided under the statute. Since the statute makes little use of the term “insurer,” the intended effect of the amendment is not entirely certain. It probably was intended to legislatively overrule the decision in Jones v. Henry that a vehicle owned by a qualified self-insured was still an uninsured motor vehicle within the meaning of the UM statute.
1 ¿.Whether the amendment will be held to have a broader effect remains to be seen. It will be suggested that the amendment also should be held to impose a duty on qualified self-insurers, as “insurers,” to provide uninsured motorist coverage.

W. Shelby McKenzie and H. Alston Johnson, Developments in the Law 1990-1991, Insurance, 52 La. L.Rev. 527, 529 (1992).

In 1992, La. R.S. 22:1406(D)(3) was again amended to add:

This provision shall not be construed to require that a party possessing a certificate of self-insurance provide uninsured motorist coverage or that such coverage is provided by any party possessing such a certificate.

In regard to the second amendment, analysts observed:

The 1991 amendment was clarified by Act 583 of 1992, which expressly states that the amendment shall not be construed to require a self-insurer to provide U/M coverage. Therefore, the sole purpose of the 1991 amendment must have been to overrule legislatively the holding of Jones that a vehicle owned by a qualified self-insurer is an uninsured motor vehicle.

W. Shelby McKenzie and H. Alston Johnson, Louisiana Civil Law Treatise: Insurance Law and Practice, West 1996, p. 284, n. 7.

We agree with this analysis of La. R.S. 22:1406(D)(3). The interpretation urged by plaintiff would give no effect to the amendments to the statute. We also note that the cases relied upon by plaintiffs are distinguishable from the instant matter. Duncan v. State Dept. of Transportation and Development, 615 So.2d 305 (La.1993), and Talamo v. Shad, 619 So.2d 699 (La.App. 4 Cir.1993), interpreted insurance law as it existed prior to the amendments to La. R.S. 22:1406. Tybussek v. Wong, 96-1981 (La.App. 4 Cir. 2/26/97), 690 So.2d 225, held that a self-insured political subdivision, as a vehicle owner, was not required to provide uninsured motorist (UM) coverage within self-insured retention.

| ñCONCLUSION

As such, we conclude that the City’s self-insured status is not equivalent to being uninsured. Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: 11 DAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Audrey BELL.
    No. 2002-KA-2349.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 2003.

      Eddie J. Jordan, Jr., District Attorney, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defen-danVAppellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY).
   11 DAVID S. GORBATY, Judge.

Audrey M. Bell appeals her conviction for manslaughter and her sentence of forty years at hard labor. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF THE CASE:

Defendant Audrey M. Bell was charged on May 16, 1996 with second-degree murder, a violation of La.Rev.Stat. 14:30.1. She was found guilty as charged in a trial by jury on April 9, 1997. On appeal, this Court reversed the conviction because of the unavailability of a trial transcript, and remanded the case for a new trial.

On March 24, 1999, Ms. Bell filed a motion for a speedy trial. On that date the trial court continued the proceedings in order to prepare transcripts from the first trial and forward them to this Court. At a status hearing on April 14, 1999, the trial court noted that the transcripts still had not been sent to this Court. The trial court continued to hold status hearings. This Court denied defendant’s writ application on June 25, 1999, relative to defendant’s motion for release without |¡,bail. The Louisiana Supreme Court granted defendant’s writ application as to the same matter on October 13, 1999, ordering the trial court to commence retrial within sixty days or release defendant without bail. Ms. Bell filed a motion to quash the indictment on December 6, 1999, which was denied. This Court denied an application for emergency supervisory writs and a stay on that same date. Ms. Bell was retried on February 1, 2000, and a twelve-person jury found her guilty of manslaughter. The trial court sentenced Ms. Bell on March 17, 2000 to forty years at hard labor, and granted a motion for appeal on that same date. The trial court denied a motion to reconsider sentence on April 7, 2000.

FACTS:

Audrey M. Bell was convicted of manslaughter in the stabbing death of her lover, Gail Hudson-Kelly.

Dr. Susan Garcia, qualified by stipulation as an expert in the field of forensic pathology, performed an autopsy of the victim. The victim had a knife protruding from her neck region. Upon removing the knife, the coroner noted that the tip of the blade had broken off in one of the cervical vertebra. There was one other stab wound in the neck region, and what appeared to be a telephone cord, tied with a half-square knot in the back, was wrapped around the .victim’s neck. The cause of death was blood loss from the stab wound to the jugular vein and asphyxia from the wrapping of the telephone cord tightly around the victim’s neck. The victim was alive, though not necessarily conscious, when the telephone cord was wrapped [ ¡¡around her neck. There was an abrasion to the victim’s neck from the telephone cord. Dr. Garcia saw no defensive injuries.

It was stipulated that if criminalist Tere-sia Lamb were called to testify, she would be qualified as an expert in the testing and identification of blood and blood typing; that she would testify that she tested clothing items from defendant and the victim; and that both contained stains of the same blood type.

New Orleans Police Officer Rita M. Irving testified that she stopped Ms. Bell in the 2700 block of Piety Street on April 8, 1996, and arrested her after discovering an unrelated outstanding warrant for her arrest. Ms. Bell was advised of her rights, and waived them. After arriving at central lockup, Ms. Bell thrust her keys at Officer Irving, telling the officer that her lover might be at her house, and that she thought she was dead. Ms. Bell subsequently asked the officer if she could write two letters. Officer Irving read the letters to the court. The first one, addressed to “Whom It May Concern,” read:

The reason this crime took place was because of love. I loved her so much that I didn’t want to see her with anyone else. She wanted to play games and I wasn’t standing for it. My emotions are not to be played with. She used me up and took me for granted, so I took her life, which I told her I would do. I guess she didn’t believe me.

The first letter was signed “Audrey Bell,” with the date and time. The second letter was addressed to Ms. Bell’s mother:

Dear Mom, I’m so sorry I’m putting you through so much hell, but I didn’t want — I did what I had to do. I was tired of making fool — I was tired of her making a fool of me, so I put a stop to it the best way I knew how. Please, don’t cry over it. I know what I’ve done and I’m going to do my time. If I’m given the death penalty, please don’t cry. I feel like it’s my time to go. Tell Sandra, Lupe and Raynell that I love them. Now, you don’t have to worry about me getting killed on the streets or by her family. I love you. Love always, Audrey.

14Officer Irving turned the letters over to a homicide detective. Officer Irving replied in the negative when asked whether she noticed any injuries on defendant. However, she noted that Ms. Bell did have what appeared to be bloodstains on her pants and shoes.

Officer Irving confirmed on cross-examination that Ms. Bell was in a “dazed state” when stopped. Officer Irving said on redirect examination that her partner, Officer Bevley, had to keep telling Ms. Bell to sit down because she kept getting up from her seat. Ms. Bell argued with Officer Bevley, and at one point told the officer that she was a black belt in karate, and: “I just did my lover, and I’ll do you, too.”

New Orleans Police Sergeant Michael Glasser and two other officers let themselves into 3211]é Gravier Street with the keys Ms. Bell had given Officer Irving. They found the dead body of a female in the second room of the dwelling.

New Orleans Police Detective David Gaines investigated the homicide. The victim was located in the bedroom. The handle of a knife was protruding from the right side of the victim’s neck, and a telephone cord, tied in a knot, was wrapped around her neck. After the initial scene investigation, Det. Gaines returned to the homicide office and interviewed Ms. Bell. He said she did not appear dazed or confused. Det. Gaines testified on cross-examination that he also recovered an unopened male condom from the bedroom area of the homicide scene. He noted that the victim had the name “Augie” tattooed on her; “Augie” was Ms. Bell’s nickname. It was the detective’s belief that the victim’s children lived at the residence. None of the furniture in the residence was disturbed. Based on Ms. Bell’s statements, interviews of witnesses, and physical evidence, Det. Gaines charged Ms. Bell with second-degree murder.

LNew Orleans Police Sergeant Kenneth Harris interviewed Ms. Bell at the homicide office. Sgt. Harris said Ms. Bell appeared to be calm, composed and forthcoming. She did not have any visible physical injuries. Ms. Bell signed a waiver of rights form and gave a statement. She said she picked the victim up from work on Easter Sunday, and they went to 3211}£ Gravier Street, where the two lay down to rest. They started arguing about the victim seeing other people and Ms. Bell’s violent temper. She said the victim did not threaten her or hit her during the argument. Ms. Bell stated that “I just went and I got an extension cord and I did what I had to do.” The victim was sitting in a chair when Ms. Bell wrapped the telephone cord around the victim’s neck from behind. When the victim fell to the floor, Ms. Bell picked up knife she said was under a table and stabbed the victim in the neck. Ms. Bell recalled stabbing the victim four or five times, and then left.

Byron Hudson, the victim’s son, was 10 years old at the time of the second trial. He testified that Ms. Bell had lived with him and the victim up until Good Friday, but apparently did not sleep at the home the Saturday before Easter. Ms. Bell took him to an Easter egg hunt on Easter Sunday. They later picked his mother up, and came home. Byron went to his grandmother’s home around the corner to pick up his Easter candy, and when he returned approximately ten minutes later, his mother was dead.

Misty Clesi was called as a defense witness. She testified that she had known Ms. Bell for approximately four years at the time of the second trial. She had known the victim for one year before the killing. All three women worked at the Jefferson Health Care Center. Ms. Clesi said she and Ms. Bell had lunched at Cle-si’s home, and sometimes went. shopping together. The victim and Ms. Bell lfihad been to Ms. Clesi’s home together a couple of times, and she had invited them to her wedding. The. two women did not come because, Ms. Bell later told her, they had an argument. Ms. Bell often had the victim’s children with her, and Ms. Clesi described her as like another mother to the children. The Easter egg hunt Byron Hudson attended with Ms. Bell on the day of the killing was at the Jefferson Health Care Center.

Audrey M. Bell, thirty-four years old at the time of trial, testified in her own .behalf. She and the victim were lovers for approximately eighteen months. They moved in together at 3211}£ Gravier Street while the victim was still married, and they lived together there for eighteen months. Complications arose some nine months into the relationship. They regularly argued and fought, and separated at times— it was “back and forth.” Ms. Bell testified that she was the director of activities at the Jefferson Health Care Center. She went to work on Good Friday. The victim was off that day. After receiving a telephone call at work, Ms. Bell telephoned her mother and asked her to pick her up. Ms. Bell spent that night at her mother’s home. The victim telephoned her at approximately 2:30 a.m. Easter Sunday morning. Ms. Bell went to the Gravier Street residence, arriving at 3:00 a.m., and she and the victim talked about why the victim had not picked up Ms. Bell from work, on Friday. Ms. Bell testified that she called her mother and sister afterward to pick her up, but neither would come. At approximately 6:45 a.m., Ms. Bell and the victim’s son dropped the victim at her job on Canal Street. Ms. Bell then returned to Gravier Street where she packed up some of her things. She and |7Byron then went to an Easter egg hunt at the Jefferson Health Care Center. She and Byron left at 3:00 p.m. to pick up the victim from work.

She and the victim went to the Gravier Street residence and took a nap. When they awoke, Ms. Bell expressed her intention to return to live at her mother’s home. The two women began arguing. Ms. Bell began packing up the rest of her things, and in the process came across a Blockbuster video store bag. The time and date on the receipt inside coincided with the time she got off work on Good Friday. The victim had told Ms. Bell she could not pick her up from work that day because her grandmother was sick and she had to take her to the hospital. A western movie was inside of the Blockbuster bag. Ms. Bell questioned the victim about the movie. Byron explained that the victim had rented the movie for Keith, a man the victim apparently was seeing, and that the three of them watched the movie.

The two women asked Byron to go outside and continued arguing. The victim went into the kitchen to get a knife. Meanwhile, Ms. Bell had picked up a telephone cord, which belonged to her sister, planning to take it with her when she moved out. Ms. Bell had the cord draped over her shoulder. The arguing continued. Ms. Bell testified that she made a move toward the victim, who raised the knife she was holding. Ms. Bell asked if she would really try to stab her, and the victim replied that she would. At that point Ms. Bell ran behind the victim and put the telephone cord around her neck. The two fell to the floor, and the victim dropped the knife. When the victim reached for the knife, Ms. Bell squeezed the cord around the victim’s neck. Ms. Bell said she squeezed the cord a little tighter, picked up the knife, and stabbed the victim in the neck. She did not recall how many times she stabbed the victim.

IsMs. Bell denied on cross-examination that she threatened Officer Bevley, as reported by Officer Irving. She stated that at the time she spoke with Officer Bevley, she was not aware that the victim was dead; therefore, she would not have made that statement. She admitted writing the two letters and confirmed that the letters reflected how she felt at the time she wrote them. When asked about her subsequent statement to Sgt. Harris, Ms. Bell said she told him what she wanted him to know. She admitted that she told Sgt. Harris that the telephone cord was on the floor, that the knife was under the bed, and that the victim did not threaten her. She denied that was the way it happened. She said she was feeling guilty at the time she gave the statement to Sgt. Harris, and she did not care whether she lived or died. Ms. Bell denied being in trouble before, but admitted that Officer Irving had arrested her on an outstanding warrant.

ERRORS PATENT:

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 1:

In her first assignment of error, Ms. Bell argues that the trial court erred in denying her motion to quash the indictment, based on the expiration of the time limitation in La. Code Crim. Proc. art. 582.

Louisiana Code of Criminal Procedure art. 582 states that when a defendant obtains a new trial, the State must commence it within one year from the date the new trial is granted, or within the period established by La.Code Crim. Proc. art. 578, whichever is longer. Under La.Code Crim. Proc. art. 578(2), no trial shall be commenced in a non-capital felony case after two' years from the date of the Isinstitution of prosecution. When a defendant brings an apparently meritorious motion to quash based on prescription, the State bears a heavy burden of demonstrating either an interruption or a suspension of the time limitation such that prescription will not have tolled. State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286; see also State v. Brent, 2000-0072, p. 6 (La.App. 4 Cir. 11/29/00), 775 So.2d 565, 569.

This Court reversed Ms. Bell’s original conviction and remanded the matter for a new trial on October 21, 1998, because of the unavailability of a trial transcript necessary for appellate review. The second trial did not commence until February 1, 2000, more than one year and three months after the grant of a new trial, and more than two years from the institution of the prosecution.

Louisiana Code of Criminal Procedure art. 583 states that the one-year period of limitation established by La.Code Crim. Proc. art. 583 shall be interrupted by any of the causes stated in La.Code Crim. Proc. art. 579. La.Code Crim. Proc. art. 579 states the period of limitation established by La.Code Crim. Proc. art. 578 shall be interrupted if, among things, the defendant cannot be tried because of any cause beyond the control of the State. Interruption of prescription in such a case has been held to require an action or inaction by the defendant that inures to his benefit, such as the filing of motions or pleadings that delay the prosecution. State v. Williams, 93-694, p. 6 (La.App. 5 Cir. 2/9/94), 631 So.2d 1370, 1373.

In the instant case, on May 25,1999, Ms. Bell moved the trial court to release her without bail on the ground of a statutory speedy trial violation. The trial court denied her motion, and she applied to this court for supervisory review. [inThe trial court minute entry from June 18, 1999 reflects that Ms. Bell appeared for a status hearing that date, but that the court was waiting on a response from this Court relative to defendant’s writ application. This Court denied the writ application on June 25, 1999, finding no error in the trial court’s ruling. Ms. Bell sought review of this Court’s ruling from the Louisiana Supreme Court. A trial court minute entry of July 30, 1999 reflects that Ms. Bell appeared for a status hearing that date, but that the trial court was waiting on a response from the Louisiana Supreme Court. The same notation is present in the minute entry for September 13, 1999. The minute entry for October 1, 1999 reflects that the Louisiana Supreme Court ordered the State to respond to Ms. Bell’s writ. The State filed a motion for a stay order, which the trial court granted. The Louisiana Supreme Court rendered its decision on October 13, 1999, granting the writ and ordering the trial court to either commence Ms. Bell’s retrial within sixty days or release her without bail.

All of these actions by Ms. Bell, from the filing of her motion on May 25, 1999 for release without bail, to her seeking review in this Court and in the Louisiana Supreme Court, inured to her benefit. One or more of these acts by defendant constituted a delay of trial for a cause beyond the control of the State, as contemplated by La.Code Crim. Proc. art. 579(A)(2), and, accordingly, interrupted the tolling of the time limitation of La.Code Crim. Proc. art. 582. La.Code Crim. Proc. art. 583 states that where such interruption occurs, the State has one year from the date the cause of interruption no longer exists to commence the retrial. Ms. Bell’s February 1, 2000 trial was within one year from the date she filed her Ininitial motion on May 25, 1999, and well within one year from the date the Louisiana Supreme Court finally ruled on the matter on October 13,1999.

ASSIGNMENT OF ERROR NO. 2:

In her second assignment of error, Ms. Bell claims that her forty-year sentence is unconstitutionally excessive.

Louisiana Constitution, art. I, § 20 explicitly prohibits excessive sentences. State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677, citing State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 656 So.2d at 979, quoting State v. Lobato, 603 So.2d 739 (La.1992); State v. Hills, 98-0507, p. 5 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1217. Courts have the power under La. Const, art. I, § 20 to declare to a sentence excessive, although it falls within the statutory limits provided by the legislature. Johnson, 97-1906, p. 6, 709 So.2d at 676. When a trial court determines a sentence from a carefully tailored penalty statute, such as the statute applicable in the instant case, La.Rev.Stat. 14:31, there is a strong presumption that the sentence is constitutional. State v. Bunley, 2000-0405, p. 24 (La.App. 4 Cir. 12/12/01) 805 So.2d 292, 308, writ denied, 2002-0505 (La.1/24/03), 836 So.2d 41. The penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2982 at p. 11310, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987).

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines set forth in La.Code Crim. Proc. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189; State v. Robinson, 98-1606, p. 12 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 127. If adequate compliance with La. Code Crim. Proc. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Ross, 98-0283, p. 8 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, 762; State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

Audrey Bell was sentenced to forty years at hard labor, the maximum sentence provided for a person convicted of manslaughter. La.Rev.Stat.l4:31(B).

Defense counsel argued at sentencing that this was a provoked incident, but admitted that it was not a self-defense case. Counsel said Ms. Bell admitted at trial that she was wrong and expressed her remorse. Counsel noted that the relationship between Ms. Bell and the victim had been violent and self-destructive. Counsel incorrectly stated that Ms. Bell had never been arrested. However, the record reflects that she was initially taken into custody on an outstanding arrest warrant for, according to the prosecutor, unlawful use of a movable — the victim’s car. Counsel noted that Ms. Bell had no history of violence, except in her relationship |13with the victim. Ms. Bell was liked by at least one person at her place of employment, Ms. Clesi, and had gotten along well with the victim’s two children.

The State argued that there are two motherless children because Ms. Bell chose to play God and take another life. Ms. Bell wrote in one of her letters that she killed the victim because she loved her so much that she did not want to see the victim with anyone else, and because the victim “wanted to play games,” and defendant “wasn’t standing for it.” Ms. Bell defiantly stated in the letter that “my emotions are not to be played with. She used me up and took me for granted, so I took her life, which I told her I would do. I guess she didn’t believe me.”

The court stated that it had considered the mitigating circumstances cited by defense counsel. The court said that there was too much violence in the community, and that the killing was a vicious act— strangling the victim and stabbing her twice in the neck.

In State v. Lanieu, 98-1260 (La.App. 1 Cir. 4/1/99), 734 So.2d 89, the court affirmed a forty-year sentence for manslaughter imposed on a nineteen-year-old first offender. The defendant and the victim argued and cursed each other before the defendant reached into the victim’s car through the passenger side window and shot the victim twice in the head. The court noted that, although either wound would have been fatal, a witness testified that there was a pause of one to three minutes between the first and second shots. The defendant fled the scene in the victim’s vehicle, dumped the body in a field, and was subsequently arrested after a high-speed chase. The court noted that the defendant received a benefit when the jury convicted him of the lesser offense of manslaughter, as the court believed the facts were sufficient to convict him of the charged offense of second-degree murder.

|uIn State v. Taylor, 535 So.2d 1146 (La.App. 2 Cir.1988), decided when the maximum sentence for manslaughter was twenty-one years, the court held that an eighteen-year sentence was excessive. The defendant and his victim had known each other for several years. The defendant rented a vehicle and later entrusted it to the victim to return. The victim used the vehicle for an additional ten days, and the defendant’s credit card was billed for an extra $400. The victim had repaid the defendant $75 at the time of the homicide. The defendant left a bar at 2 a.m. one morning, after earlier drinking with the victim. He went to the victim’s home, armed with a rifle, to demand full repayment. The defendant entered the victim’s residence and shortly thereafter fired one fatal shot into him. The defendant maintained that he accidentally shot the victim. The defendant subsequently called 911, but fled before reporting the shooting because he was afraid. He was charged with second-degree murder, but pleaded guilty to manslaughter. On appeal of the sentence, the court noted the circumstances and speculated that alcohol was probably a substantial factor in the killing. The court noted that the defendant’s mother, sister and cousin all testified to the defendant’s peaceable attributes, which testimony was corroborated by the mother of the defendant’s former girlfriend. The defendant was a first-felony offender with no prior criminal history. He was viewed as a good employee at a paper company, and had been under review for advancement. The court concluded that the defendant was not one of the worst offenders and should not have received the near-maximum sentence. It found that anything over twelve years would be excessive.

In State v. Maxie, 594 So.2d 1072 (La.App. 3 Cir.1992), the court held that a maximum twenty-one year manslaughter sentence imposed on a defendant originally charged with second-degree murder was not excessive. The defendant |1Khad accused the victim, an acquaintance, of stealing $600 worth of stereo equipment from his car. Earlier on the day of the killing, the two argued and the victim threatened the defendant with a knife. Later, the defendant was driving out of his apartment complex lot when the victim threw down his jacket and began walking toward the defendant’s car. The defendant parked his car and exited, armed with a .22 caliber semi-automatic rifle. After an exchange of words, the defendant shot the victim four times, killing him. Police found the victim’s opened knife nine feet from his body. The defendant testified that the victim approached him, threatened him with a knife, and continued to approach after the first shot struck him in the leg. This testimony was corroborated by the defendant’s girlfriend and her two brothers. Two additional witnesses testified they observed a closed knife near the victim’s body. Four witnesses testified the victim was unarmed. Another said the victim tried to dodge the bullets fired by the defendant.

The trial court noted that the defendant had never been convicted of another crime, that he was only twenty-two years old, and that he had a steady employment record, although he did not provide support for his two illegitimate children. The court believed the defendant acted without provocation. In affirming the sentence, the appellate court found that the defendant could have easily avoided the confrontation and had overreacted by arming himself with the firearm.

In the instant case, as in Lanieu, Ms. Bell received a benefit when the jury convicted her of the lesser offense of manslaughter, as it appears the evidence would have supported a conviction for the offense charged, second-degree murder. One of the letters written by Ms. Bell shortly after the incident and her subsequent statement to Sgt. Harris damn her. The letter evidences that, rather than acting in the heat of passion, defendant acted with cool detachment, killing the victim hfibecause she felt wronged and because she wanted to ensure that if she could not have the victim, no one else would. Ms. Bell admitted in her letter that she had previously threatened to kill the victim, but that the victim apparently had not believed her. She calmly told Sgt. Harris that she did what she “had to do.” While the trial court said it would “honor” the jury’s manslaughter verdict, it is apparent that the court believed the circumstances of the case would have justified a second-degree murder conviction, the crime for which Ms. Bell had originally been charged in the case. The victim’s son, Byron, who would have been approximately four years old at the time of the killing, came home from his grandmother’s house on Easter Sunday to find his mother dead, with a telephone cord wrapped around her neck and a knife protruding from her neck.

It cannot be said that the maximum sentence imposed for this manslaughter conviction is too severe in light of the particular defendant and the circumstances of the case.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . State v. Bell, unpub., 97-1615 (La.App. 4 Cir. 10/21/98).

      . State v. Bell, unpub., 99-1449 (La.App. 4 Cir. 6/25/99) (no error by the trial court).

      . State v. Bell, 99-1971 (La. 11/13/99), 748 So.2d 458.

        . State v. Bell, unpub., 99-3030 (La.App. 4 Cir. 12/6/99), writ denied, 99-3048 (La. 12/7/99), 751 So.2d 239.

      . It is not clear from the record from whom the call was received.

      . Ms. Bell does not argue that her Sixth Amendment right to a speedy trial was violated.

      . State v. Bell, unpub., 99-1449 (La.App. 4 Cir. 6/25/99).

      . State v. Bell, 99-1971 (La. 11/13/99), 748 So.2d 458.


author: JjMAX N. TOBIAS, JR., Judge.

text:
    In re Medical Review Panel for the Claim of Phyllis DEPLAND.
    No. 2003-CA-0385.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 2003.

      Peter O. Cola, New Orleans, LA, for Appellant.
    Mary Fuchs Gaudin, Robert D. Ford, Mang, Batiza, Gaudin, Godofsky and Pen-zato, Metairie, LA, for Appellee.
    (Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, JR.)
   JjMAX N. TOBIAS, JR., Judge.

The appellant, Phyllis Depland, initiated a medical review panel alleging a malpractice claim against her family practitioner, Dr. Wanda Timpton, the appellee. Ms. Depland nominated to the medical review panel Dr. Dennis Casey, a board certified ear, nose, and throat specialist who has conducted a general practice. Dr. Timp-ton objected to the nomination, arguing that the Medical Malpractice Act required the panelists to be from the same class or specialty as the defendant, in this case, a family practitioner. Specifically, La. R.S. 40:1299.47(C)(3)(f)(v), part of the Medical Malpractice Act, states in pertinent part:

If there is only one party defendant which is not a hospital, community blood center, tissue bank, or ambulance service, all panelists except the attorney shall be from the same class and specialty of practice of healthcare provider as the defendant....

Dr. Timpton filed a motion to compel compliance with the Medical Malpractice Act. On 18 November 2002, the trial court granted the appellee’s motion and ordered Ms. Depland to nominate a family practitioner to the panel. An appeal was taken from the judgment on 2 December 2002.

Ii JURISDICTION OF THE COURT:

A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment, which is not appealable absent a showing that it may cause irreparable injury. La. C.C.P. arts. 1841 and 2083. Bernard v. Allstate Insurance Company, 396 So.2d 548 (La.App. 3 Cir.1981). The test for determining whether an interlocutory judgment may cause irreparable injury is whether any error in the judgment may be corrected as a practical matter on appeal following the determination of the merits. Jacobs v. Jacobs, 365 So.2d 25 (La.App. 4 Cir.1978).

In the instant case, the judgment of the trial court has not terminated the litigation or Ms. Deplands claim, and is therefore interlocutory. Additionally, Mr. Depland has made no allegation or showing of irreparable harm. We therefore conclude that the judgment is not appealable.

Additionally, we note that the trial court has not certified the judgment as final and appealable pursuant to La. C.C.P. art. 1915 B(l), which states:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains ah exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

|aThe judgment of the trial court is interlocutory, and no allegation or showing of irreparable injury is made., Nevertheless, exercising our general supervisory jurisdiction and the statutory authority granted to us by La. C.C.P. art. 2164, and in the interest of judicial economy, we convert Ms. Deplands appeal to an application for a supervisory writ of review and render hereinbelow a decision on the merits.

THE MERITS:

As noted and quoted above, La. R.S. 40:1299.47(C)(3)(fXv) requires that all medical review panelists (save the attorney chairman) “shall” be from the same class and specialty as the defendant healthcare provider. Dr. Timpton is a family practitioner. Dr. Casey, the physician nominated by Ms. Depland to the panel, is a board certified and practicing eye, nose, and throat specialist who has conducted a general practice. Thus, Dr. Timpton and Dr. Casey are not of the same class and specialty. Therefore, Dr. Casey cannot be a member of the medical review panel and the trial court did not err in disqualifying him and ordering Ms. Depland to name another to the medical review panel. See La. R.S. 9:2794(A)(1); La. R.S. 40:1299.47(G); In re Calongne, 447 So.2d 1217 (La.App. 5 Cir.1984).

CONCLUSION:

For the foregoing reasons, we convert Ms. Deplands appeal to an application for a supervisory writ of review. We grant the supervisory writ, deny Ms. Depland relief, and remand this matter to the trial court for further Lproceedings.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED; REMANDED.

      . La. C.C.P. art. 1841 provides in part that: “A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.” La. C.C.P. art.2083A states in part: "An appeal may be taken ... from an interlocutory judgment which may cause irreparable injury...."

      . Nothing herein should be interpreted and prohibiting Ms. Depland from calling Dr. Casey as a witness at the trial of the merits of the case if the appellant complies with the law and appropriate pre-trial orders.


author: LKLINE, J. LMcCLENDON, J.,

text:
    William (Willie) Hudson HORNSBY v. Winton L. SLADE and Dorothy Prevost Slade.
    No. 2002 CA 2138.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 20, 2003.
    Rehearing Denied Oct. 2, 2003.
    Brent K. Delee, Baton Rouge, Counsel for Plaintiff/Appellee William Hudson Hornsby.
    Michael O. Hesse, St. Francisville, Counsel for Defendants/Appellants Winton L. Slade and Dorothy Prevost Slade.

      Before: FOIL, McCLENDON, and KLINE, J.J.

      . Hon. William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   LKLINE, J.

This is an appeal from a judgment finding the sale of an interest in a tract of land subject to rescission for lesion beyond moiety. For the following reasons, we affirm.

On July 15, 1994, plamtiffiappellee, William (Willie) Hudson Hornsby, sold her 5/18ths undivided interest in 364 acres of immovable property located in East Felici-ana Parish to defendant/appellant, Winton L. Slade. Nearly four years later, on May 4, 1998, Ms. Hornsby instituted this lawsuit against defendants/appellants, Winton L. Slade and Dorothy Prevost Slade, to set aside the sale on the basis of lesion, claiming that because of the gravel value in the property, the value of the property was more than twice the amount of the sale price. The Slades filed a motion in limine to exclude appraisal information and opinion based on results of gravel testing and inspection reports made after the sale date. The motion in limine was referred to the merits. At trial, on November 7, 2001, the case was submitted to the trial court on deposition testimony and document exhibits.

The parties entered into the following stipulations of fact:

1) The purchase price of the property was $28,000.00;
2) The value of the raw land was between $26,750.00 and $87,387.60;
3) The value of the gravel would be $97,417.50 to be added to the raw land value;
4) The property contained at least seventy acres of available gravel production;
5) Ms. Hornsby’s ownership was 5/18th interest in the property;
6) If the trial court allowed sand and gravel evidence (as to the value), then the sale was lesionary;
|s7) If lesion were found, Mr. Slade would return the property and receive the return of his purchase price, if the supplemental payment to be paid to Ms. Hornsby exceeded $50,000.00, exclusive of interest and costs.

In essence, the issue to be decided on the merits was whether the sand and gravel evidence was admissible.

The trial court issued written reasons for judgment on March 28, 2002, finding that the gravel constituted a solid mineral which was an inseparable component of the ground and, therefore, the data and information as to the gravel deposits could be used to determine the value of the land as of the date of the sale. Judgment was signed on June 6, 2002, ordering that the sale of July 15, 1994, be rescinded for lesion beyond moiety. The judgment further ordered that the Slades return the property to Ms. Hornsby and that Ms. Hornsby return to the Slades the original purchase price of the property, with interest from date of judicial demand.

The Slades appealed asserting that the trial court erred in ruling that the sand and gravel evidence, obtained after the date of the sale, could be used to determine the value of the property. Appellants also assert that under the Mineral Code the valuation of solid minerals was precluded from being the subject of lesion beyond moiety. Ms. Hornsby answered the appeal requesting that the judgment be modified to eliminate appellants’ entitlement to legal interest.

DISCUSSION

Lesion. La. Civil Code Art. 2589 provides:

Art. 2589. Rescission for lesion beyond moiety

The sale of an immovable may be rescinded for lesion when the price is less than one half of the fair market value of the immovable. Lesion can be claimed only by the seller and only in sales of corporeal immovables. It cannot be alleged in a sale made by order of the court.
The seller may invoke lesion even if he has renounced the right to claim it.

It is to be emphasized that lesion can be claimed only by the seller and only in sales of corporeal immovables. La. C.C. Art. 2590 requires that to 1¿determine whether there is lesion, the immovable sold must be evaluated according to the state in which it was at the time of the sale. The required standard is “fair market value.”

Rescission on grounds of lesion differs from rescission on grounds of error, fraud or duress. The latter results in a declaration of nullity while in cases of the former the buyer has an option between returning the thing and recovering the price he paid, which is the effect of rescission, or paying a balance up to the fair price. See Saul Litvinioff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. Law. Rev., p. 110 (Sept.1989).

Lesion is actually an instrument of public policy that, with certain limitations, allows the judicial policing of certain contracts that, because of unfairness that can be objectively shown, are inconsistent with the welfare of the community and therefore contrary to the public order. Id.

Legislative framework — Minerals and Mineral Rights.

The Louisiana Mineral Code, LSA-R.S. 31:1, et seq., effective January 1, 1975, states that its provisions are supplementary to those of the Louisiana Civil Code and are applicable specifically to the subject matter of mineral law. LSA-R.S. 31:2. Section 2 also provides that in the event of conflict between the provisions of the Mineral Code, the Civil Code or other laws, the provisions of the Mineral Code will prevail. Additionally, if the Mineral Code does not expressly or impliedly provide for a particular situation, then the Civil Code or other laws are applicable. LSA-R.S. 31:2.

LSA-R.S. 31:4 determines the application of the provisions of the Mineral Code. It does not attempt a firm definition of the term “minerals.” Comment to LSA-R.S. 31:4. Section 4 provides:

The provisions of this Code are applicable to all forms of minerals, including oil and gas. They are also applicable to rights to explore for or mine or remove from land the soil itself, gravel, shells, subterranean water, or other substances occurring naturally in or as a part of the soil or geological formations on or underlying the land.

Thus, sand and gravel are substances to which the Mineral Code applies. Slay v. Smith, 368 So.2d 1144, 1146 (La.App. 3 Cir.1979); LSA-R.S. 31:4.

| ROwnership of land includes all minerals occurring naturally in a solid state. However, solid minerals are insusceptible of ownership apart from the land until reduced to possession. LSA-R.S. 81:5. Minerals are reduced to possession when they are under physical control that permits delivery to another. LSA-R.S. 31:7. The comment to section 7 provides, in part:

Despite the fact that Article 5 recognizes that the owner of land also owns solid minerals, such minerals are insusceptible of ownership apart from the land, and the landowner may therefore only convey or lease the right to explore for them and reduce them to possession and simultaneously to ownership. Accordingly, the nature of the substance involved has no impact on the significance of reduction to possession and consequent vesting of title.

A.N. Yiannopoulos, Property § 118, at pp. 276-277 in 2 Louisiana Civil Law Treatise (4th ed.2001), provides a concise analysis, to wit:

§ 118. Ownership of Things Incorporated in, or Attached to, a Tract of Land — Minerals

Deposits of solid minerals are inseparable component parts of the ground, whereas fugacious minerals are in theory res nullius. However, the right to possession belongs to the owner of the ground.
The owner of the ground may segregate the mineral rights from the ownership of the land and either retain them himself or convey them to another person. Accordingly, rights in minerals may be regarded as separable component parts of the ownership of land. Mineral rights segregated from the ownership of land ordinarily take the form of the mineral servitude, a mineral lease, or a mineral royalty. (Reference footnotes omitted).

Louisiana Civil Code article 462 states:

Art. 462. Tracts of land

Tracts of land, with their component parts, are immovables. Louisiana Civil Code article 470, distinguishes from article 462 “rights and actions” that apply to immovables.

Art. 470. Incorporeal Immovables

Rights and actions that apply to immovable things are incorporeal immov-ables. Immovables of this kind are such as personal servitudes established on immovables, predial servitudes, mineral rights, and petitory or possessory actions.

The nature and creation of' mineral rights are provided in La. R.S. 81:15 et seq., to wit:

| fiPart 5. CREATION OF MINERAL RIGHTS BY THE LANDOWNER

§ 15. Right of landowner to convey, reserve, or lease right to explore and develop

A landowner may convey, reserve, or lease his right to explore and develop his land for production of minerals and to reduce them to possession.

§ 16. Basic mineral rights; status as real rights

The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. This enumeration does not exclude the creation of other mineral rights by a landowner. Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence.

§ 17. Rescission for lesion beyond moiety unavailable

A sale of mineral right is not subject to rescission for lesion beyond moiety.

§ 18. Nature of mineral rights

A mineral right is an incorporeal immovable. It is alienable and heritable. The situs of a mineral right is the parish or parishes in which the land burdened is located. All sales, contracts, and judgments affecting mineral rights are subject to the laws of registry.

Plaintiff’s contentions:

Plaintiff contends that sand and gravel are solid minerals and by nature corporeal, and that lesion lies in and only in cases of corporeal immovables as distinguished from mineral rights that are classified as incorporeal immovables under Civil Code article 470. Plaintiff urges that the value of the land includes the unmined quantity of sand and gravel deposits determined by precision testing. Plaintiff argues that the trial court was correct in finding under the law that ownership of land includes all minerals occurring naturally in a solid state and that including sand and gravel in the valuation of a tract of land does not constitute an “incorporeal immovable mineral right” so as to preclude lesion, and that the presence of these solid minerals that form the land should be considered in the fair market value of the land. Defendant’s Contentions

Defendant contends that it has been the doctrine in Louisiana that one did not own mineral interests until they were reduced to possession, and that one |7simply owned a right to produce them, and that un-produced minerals beneath the surface have little or no intrinsic value and are speculative in nature. Defendant argues that the expert valuation is based on a right to produce and develop gravel, which is a “mineral right” under the Mineral Code. By classifying the right to produce minerals as a mineral right, those rights should be considered incorporeal immov-ables for all purposes.

Defendant reasons, to wit:

There is no valid reason for treating the valuation of solid minerals owned by the landowner any differently from the valuation of the same minerals when owned by a separate owner as a “mineral right.”
It is clear under article 17 of the Mineral Code that the sale of a mineral is not subject to rescission for lesion beyond moiety.

Defendant argues that “Left in place, the sand and gravel add no ‘extra value’ to the land.”

CONCLUSION

The trial court was asked to determine under the statutory scheme of the Civfl Code and the prevailing Mineral Code whether the value of sand and gravel or solid mineral deposits in the land sold could be considered in determining fair market value of the land and, thus, subject the sale to cause of action for lesion beyond moiety.

Solid minerals, until reduced to possession, form an integral part of the land. It cannot be said that the presence of solid materials, being a component part of the land and capable of being reduced to possession, is an inconsequential factor in determining fair market value. With other factors being equal, lands with mineral deposits are worth more than lands without them.

Deposits of solid minerals are inseparable parts of the land. However, the owner of the land may segregate the mineral rights from the ownership of the land, and these mineral rights are deemed separable component parts of ownership in the usual form of mineral servitudes, leases, and royalties. These segregated rights are classified as incorporeal immovables. These are the mineral rights that are not subject to a lesionary inquiry because of their speculative character.

IsOur statutory schemes have distinguished the classification of land with mineral deposits and the classification of the alienation of component parts called mineral rights. The former are corporeal im-movables subject to lesionary inquiry and the latter are incorporeal immovables not subject to a lesionary inquiry.

Lands with known mineral deposits may be valued as an entity and that trial judge was correct in permitting that testimony.

Having determined the sand and gravel evidence is relevant in this action for lesion, we must acknowledge the stipulation that, if so, the subject sale was lesionary. We so find on the basis of the stipulation.

INTEREST

The plaintiff argues in answer to the appeal that the trial court erred in ordering plaintiff to return the purchase price of $28,000.00 with interest from the date of judicial demand. Plaintiff acknowledges that judicial interest is provided for by statute in cases of lesion beyond moiety, La. C.C. art. 2592, but contends that stipulations by counsel, in the event of determination of lesion, served to fix the obligations of the parties. The obligation for plaintiff to return the $28,000.00 purchase price did not articulate statutory interest.

We are mindful of plaintiffs argument that the stipulations served to establish the parameters of the proceedings, but we find no error of law made by the trial court in awarding statutory interest.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellee.

AFFIRMED.

McCLENDON, J., dissents with reasons.

LMcCLENDON, J.,

dissents.

I respectfully dissent from the majority opinion.

Admittedly, if not for the Mineral Code the sale of the property in this matter would be subject to rescission for lesion beyond moiety. Further, land with mineral deposits is clearly more valuable than similar land without mineral deposits. However, that is not the issue before this court. The only issue is whether the Mineral Code is or is not applicable to this sale of property. It is my opinion that the provisions of the Mineral Code do apply and that the sale in question was not le-sionary, in accordance with LSA-R.S. 31:17.

The majority of this panel determined that sand and gravel are corporeal immov-ables, and not incorporeal rights and, therefore, Article 17 of the Mineral Code does not apply. It is my belief, however, that the majority failed to distinguish between the actual sand and gravel, which may be a corporeal immovable, and the mineral right which is clearly an incorporeal immovable. See LSA-R.S. 31:18.

Article 4 of the Mineral Code provides: The provisions of this Code are.applicable to all forms of minerals, including oil and gas. They are also applicable to rights to explore for or mine or remove from land the soil itself, gravel, shells, subterranean water, or other substances occurring ^naturally in or as a part of the soil or geological formations on or underlying the land.

LSA-R.S. 31:4.

According to Article 5, ownership of land includes all minerals occurring naturally in a solid state. However, solid minerals are insusceptible of ownership apart from the land until reduced to possession. LSA-R.S. 31:5. Minerals are reduced to possession when they are under physical control that permits delivery to another. LSA-R.S. 31:7. The Comment to Article 7 explains:

In the case of solid minerals, the landowner is regarded by Article 5 as the owner of such substances, but vesting of possession will still determine when minerals extracted become subject to the law of movables. As to others than the landowner, vesting of possession will have the dual effect of marking the vesting of title and mobilization. Despite the fact that Article 5 recognizes that the owner of land also owns solid minerals, such .minerals are insusceptible of ownership apart from the land, and the landowner may therefore only convey or lease the right to explore for them and reduce them to possession and simultaneously to ownership. Accordingly, the nature of the substance involved has no impact on the significance of reduction to, possession and consequent vesting of title.

Thus, minerals in their natural state cannot be “owned” separately from the land. United States v. 43.42 Acres of Land, 520 F.Supp. 1042, 1045 (W.D.La.1981), citing Frost-Johnson Lumber Co. v. Sailing’s Heirs, 150 La. 756, 91 So. 207 (1921). Ms. Hornsby, however, was able to convey, reserve, or lease the right to explore and develop her land for the production of minerals and to reduce them to possession and simultaneously to ownership. See LSA-R.S. 31:15; LSA-R.S. 31:7 and Comment.

I .-¡Article 17 of the Mineral Code provides that a sale of a mineral right is not subject to rescission for lesion beyond moiety. The Comment to LSA-R.S. 31:17 specifically acknowledges that said article represents existing law as to mineral transactions on undeveloped property finding it appropriate due to the speculative character of such transactions. The Comment went further, however, and recognized that there could be transactions where values could be more accurately determined. It was decided that even in those instances where values are not as speculative, the article should apply. The Comment continues:

A case could be made for application of the principle of lesion when the rights sold are in fully developed property, thus permitting rather accurate determination of reserves and computations of values. However, considering the nature of transactions in developed properties and the facts that parties to them are usually experienced and lending institutions involved are highly conservative, the opportunities for the kind of overreaching which the concept of lesion was designed to prohibit are small indeed. Thus it is reasonable to make the doctrine of lesion beyond moiety inapplicable to all mineral transactions.

The unproduced minerals beneath the surface have little or no intrinsic value until reduced to actual possession permitting delivery to another. LSA-R.S. 31:7. The only added value to the land resulting from the sand and gravel in the land arises from the right to explore, mine or remove these minerals, and is therefore subject to the provisions of the Mineral Code. When removed and reduced to possession the sand and gravel can then be valued subject to the law of movables. See LSA-R.S. 31:7 Comment.

The trial court and the majority of this panel viewed the sand and gravel as minerals, and valued them as such, but then determined that the Mineral Code did not apply. I disagree. If sand and gravel are valued apart from the land, I am of the opinion that they are minerals and must be treated as such. Further, if the added value of the land is based simply on the right |4to remove the gravel below the surface, the Mineral Code clearly applies. LSA-R.S. 31:18.

Accordingly, I believe that this sale is not subject to rescission for lesion beyond moiety and I respectfully dissent.

      . At the time of the sale in this matter, LSA-C.C. art. 2595 provided a prescriptive period of four years for actions for the rescission of sales based on lesion beyond moiety. Acts 1993, No. 841, § 1, eff. Jan. 1, 1995, changed Article 2595 to provide a preemptive period of one year in actions for lesion.

      .Subsequent to the trial of this matter, appellant, Winton L. Slade, died. A motion to substitute party was filed in this Court by appellee and referred to the merits. By order of this Court David Lee Slade was substituted as proper party defendant/appellant.

      . The principles of valuation of the fair market value of mineral lands enunciated in Jones v. First National Bank of Ruston, 215 La. 862, 41 So.2d 811 (1949), has not been altered by the adoption of the mineral code.

      . It is not then necessary for this Court to evaluate the expert’s method or opinions in finding the land value; however, in response to defendant's contention that evaluation almost four years after the sale is suspect because the statutory requirement for lesion is the value of the land at the time of the sale, C.C. art. 2590, it is axiomatic that sand and gravel minerals tend to remain in place absent a flowing stream, which could cause migration and replenishment. For that reason defendants are not aggrieved relative to the date of the testing.
      There are other factors peculiar to the evaluation of the fair market value of the land: (1) the sale is of an undivided interest and (2) the fact that the reduction of the solid minerals to ownership consumes the land surface.

      . The Comment to LSA-R.S. 31:5 states in part:
      [This] servitude theory is still applied to liquid and gaseous minerals on the assumption, however mistaken, that they are insusceptible of ownership in place and to solid minerals for reasons of policy without regard to their ■ susceptibility to ownership because of their physical nature.