author: _|jWILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. George KELLEY, Appellant.
    No. 36,602-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      James E. Beal, Jonesboro, Amy C. El-lender, for Appellant.
    Richard P. Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   _|jWILLIAMS, J.

The defendant, George Kelley, was charged by bill of information with distribution of cocaine and conspiracy to distribute cocaine, violations of LSA-R.S. 40:967 and 40:979. The defendant waived his right to a jury trial. After a bench trial, he was found guilty as charged on both counts. He was subsequently sentenced to serve five years at hard labor for the distribution of cocaine conviction, and two and one-half years at hard labor for the conspiracy to distribute cocaine conviction. The trial court ordered that the sentences be served concurrently. The defendant now appeals, challenging the sufficiency of the evidence to support his conviction on the conspiracy to distribute cocaine charge. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 17, 2001, Sergeant Mike Rowland of the Ouachita Parish Sheriffs Department was working with the Metro Narcotics Division on drug-trafficking investigations. At the time, his assignment was to complete an undercover drug buy/ bust in Monroe, Louisiana. Sgt. Rowland was driving a vehicle which was equipped with audio and video surveillance equipment. A surveillance unit followed him at a distance to several locations where illegal drugs were sold. Metro Narcotics had given Sgt. Rowland money (several numbers of which had been recorded) to purchase illegal drugs.

A short time later, Sgt. Rowland drove to the corner of Owl and D’Arbonne Streets, where he observed the defendant and another suspect, Edward Mansfield (“Mansfield”), standing near the corner. According to Sgt. Rowland, he pulled up to the corner and asked the defendant for a $20 rock of |2crack cocaine. The defendant retrieved two rocks of crack cocaine from Mansfield and handed them to Sgt. Rowland through the car window. Sgt. Rowland then gave the defendant $20 of the Metro Narcotics buy money. Sgt. Rowland engaged in a conversation with the defendant to allow the arrest team time to arrive at the scene and identify the defendant. Sgt. Rowland and the defendant discussed a future purchase of an additional $60 worth of crack cocaine. After the surveillance team arrived, Sgt. Rowland left the scene. He later identified photographs of the defendant and Mansfield as the individuals who had sold him the crack cocaine.

Officer Harold Freeman of the West Monroe Police Department Metro Narcotics Division was also involved in the surveillance. Officer Freeman testified that he observed the defendant and Mansfield at the window of the undercover vehicle. Officer Freeman testified that although he could not identify which voice belonged to which individual, he did hear the drug transaction taking place. According to officer Freeman, he heard Sgt. Rowland ask for a “20”, and thereafter, he heard Sgt. Rowland give the signal for the arrest. After the arrest, a search of the defendant produced a bag of marijuana and the buy money.

Sergeant Bob Morris of the Ouachita Parish Sheriffs Department Metro Narcotics Division was also involved in the investigation and heard the transaction via audio surveillance. Sgt. Morris testified that Sgt. Rowland drove up to the corner and asked the defendant for a $20 rock of crack cocaine. Sgt. Morris also testified that Sgt. Rowland gave the defendant $20 of the Metro Narcotics buy money. Sgt. Rowland then gave the arrest team lathe signal and engaged in conversation with the defendant. Sgt. Morris heard Sgt. Rowland and the defendant discuss the future purchase of $60 worth of crack cocaine. Sgt. Morris stated that the defendant was arrested and a search of the defendant resulted in the seizure of a bag of marijuana and the buy money.

Subsequently, the defendant waived a jury trial and was found guilty as charged on both counts after a bench trial. He was sentenced to serve five years at hard labor on the distribution charge, and two and one-half years at hard labor on the conspiracy charge. The trial court ordered that the sentences be served concurrently. The defendant now appeals, alleging that the trial court erred in convicting him of conspiracy to distribute cocaine because the offense arose out of the same evidence used to convict him of distribution of cocaine and the state failed to prove that he was the person involved in the drug transaction.

DISCUSSION

The defendant contends his conviction for conspiracy to distribute cocaine constitutes double jeopardy because the offense arose out of the same evidence used to convict him of distribution of cocaine. He argues that the double jeopardy prohibition should have barred the simultaneous prosecution for the lesser included offense of conspiracy to distribute cocaine. The defendant also argues that the evidence presented at trial shows that he did not conspire to sell an additional $60 worth of cocaine. The defendant claims that Sgt. Rowland engaged in a conversation with Mansfield with regard to the future purchase. The defendant asserts that he did not participate in the | ¿conversation and did nothing beyond the initial act of distribution of cocaine, which he had already completed.

The state contends the trial court did not err in finding the defendant guilty of conspiracy to distribute cocaine and distribution of cocaine. The state argues that the evidence used to convict the defendant of conspiracy was not the same evidence used to prove the distribution charge. The two crimes, according to the state, are not the same offense. Finally, the state submits that the evidence of record clearly supports the defendant’s conviction for conspiracy to distribute cocaine.

The constitutional standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. This standard, initially enunciated in Jackson and now legislatively embodied in LSA-C.Cr.P. art. 821, is ap-plieable in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983); State v. Harris, 28,517 (La.App.2d Cir.8/21/96), 679 So.2d 549, writ denied, 96-2954 (La.9/26/97), 701 So.2d 975. This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

| KWhen the defendant asserts that he was not the perpetrator, or he remains silent, the state bears the burden of negating any reasonable probability of misiden-tification. State v. Powell, 27,959 (La.App.2d Cir.4/21/96), 677 So.2d 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. Even so, the appellate court must not substitute its opinion of the facts for that of the jury or fact finder. It is the province of the trier of fact to resolve conflicting inferences from the evidence. State v. Free, 26,267 (La.App.2d Cir.9/21/94), 643 So.2d 767, writ denied, 94 2846 (La.3/10/95), 650 So.2d 1175; State v. Davis, 97-331 (La.App. 3d Cir.10/29/97), 702 So.2d 1014, writ denied, 97-2990 (La.11/6/98), 726 So.2d 919. Thus, upon review, this Court must consider all the evidence in the light most advantageous to maintaining a verdict. State v. Free, supra.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a defendant’s conviction. State v. Gradick, 29,231 (La.App.2d Cir.1/22/97), 687 So.2d 1071; State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992), and citations therein. This is equally applicable to the testimony of undercover drug agents. State v. Anderson, 30,306 (La.App.2d Cir.1/21/98), 706 So.2d 598; State v. Martin, 29,717 (La.App.2d Cir.9/24/97), 702 So.2d 739, writ denied, 97-2562 (La.1/30/98), 709 So.2d 703; State v. Daniels, 607 So.2d 620 (La.App. 2d Cir.1992). So too, the testimony of a single undercover police officer is sufficient to convict one charged with the distribution of a controlled dangerous substance. State v. Anderson, supra; State v. Martin, supra; State v. Harris, supra; State v. Daniels, supra.

Both the Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. The purpose of these provisions is to protect a person from a second prosecution after he has already been acquitted or convicted of that offense and also to protect an accused against multiple punishment for the same conduct. State v. Vaughn, 431 So.2d 763 (La.1983).

Louisiana uses both the test in Block-burger, infra and the “same evidence test” in determining whether double jeopardy exists. LSA-C.Cr.P. art. 596; State v. Vaughn, supra. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court held that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. This test was affirmed in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

The same evidence test is a broader test than the Blockburger test. It was explained in State v. Steele, 387 So.2d 1175 (La.1980):

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.

In order to prove the crime of distribution of cocaine against this defendant, the state had to prove beyond a reasonable doubt that the defendant |7acted in accordance with the circumstances listed in LSA-R.S. 40:967, i.e., that the defendant “knowingly or intentionally distributed cocaine, a Schedule II CDS.”

Conspiracy to distribute cocaine is the agreement or combination of two or more persons for the specific purpose of committing the crime, where at least one of the conspirators does an act in furtherance of the scheme. LSA-R.S. 14:26.

The offenses of distribution of cocaine and conspiracy to distribute cocaine do not contain identical elements. An individual is guilty of distribution of cocaine when he transfers possession or control of the cocaine to his intended recipient. The state must show (1) delivery or physical transfer; (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. State v. Manning, 30,809 (La.App.2d Cir.6/24/98), 715 So.2d 668. Conspiracy to distribute cocaine does not require these elements. To find one guilty of conspiracy to distribute cocaine, the state must show that there existed an agreement or combination of two or more persons for the specific purpose of transferring possession or control of the cocaine to an intended recipient. State v. Williams, 33,881 (La.App.2d Cir.9/27/00), 768 So.2d 728. A pri-ma facie case of conspiracy is presented by introduction of evidence which, if unrebut-ted, is sufficient to establish the fact of conspiracy. State v. Daniels, supra. The elements of conspiracy may be proven by direct or circumstantial evidence. State v. Daniels, supra. Assuming every fact to be proved that the evidence tends to prove, the evidence must exclude every | seasonable hypothesis of innocence in order to convict by circumstantial evidence alone. LSA-R.S. 15:438. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, 431 So.2d 372 (La.1982); State v. Daniels, supra.

In the instant case, the same evidence was not necessary for a conviction of both crimes because the crime of distribution of cocaine was completed after the conspiracy to distribute cocaine. In its reasons, the trial court concluded that a conspiracy took place prior to and after the distribution of cocaine. When the defendant retrieved two rocks from Mansfield for the purpose of selling them to Sgt. Rowland, a conspiracy took place. A second conspiracy was in process when Sgt. Rowland and the defendant discussed purchasing $60 worth of crack cocaine in the future.

The defendant argues that it was Mansfield who conspired to sell the additional $60 worth of cocaine. Although he claims that he did not participate in the conversation and did nothing beyond the act of distribution of cocaine, the testimony of the undercover officer proves otherwise. According to Sgt. Rowland, he pulled up to the corner and asked the defendant for a $20 rock of crack cocaine. The defendant retrieved two rocks from Mansfield and handed them to Sgt. Rowland through the car window. Sgt. Rowland gave the defendant $20 of the Metro Narcotics buy money. Sgt. Rowland testified that he engaged in conversation with the defendant for the purpose of allowing the arrest team time to get there and identify the suspect. Sgt. Rowland testified that he and the defendant discussed purchasing $60 worth of crack cocaine in the future. The testimony of the undercover police-officer was sufficient to convict the defendant of distribution of cocaine, State v. Anderson, supra; State v. Martin, supra; State v. Harris, supra; State v. Daniels, supra, and the officer’s testimony of the participation of both the defendant and Mansfield was sufficient to convict the defendant of conspiracy to distribute the cocaine. In addition to the testimony of Sgt. Rowland, Sgt. Morris testified that he heard the transaction via audio surveillance. Sgt. Morris stated that Sgt. Rowland pulled up to the corner and asked the defendant for a $20 rock of crack cocaine. The defendant retrieved two rocks from Mansfield and gave them to Sgt. Rowland. Sgt. Morris further testified that Sgt. Rowland handed the defendant $20 of the Metro Narcotics buy money. Afterwards, Sgt. Rowland gave the arrest team the signal, and engaged in conversation with the defendant for the purpose of allowing the arrest team time to arrive on the scene and identify the suspect. Sgt. Morris testified that he heard Sgt. Rowland and the defendant discuss the future purchase of $60 worth of crack cocaine. Furthermore, the audio and video tapes of the transaction that were entered into evidence at trial corroborated the officer’s testimony.

The trial court noted that conspiracy was proven by the evidence which indicated that the defendant took the money, obtained the contraband from Mansfield and sold it to Sgt. Rowland. We agree. The defendant and Mansfield acted in a manner consistent with an agreement to commit the offense of distribution of cocaine. The trial court did not err in finding the defendant guilty of distribution of cocaine and conspiracy to distribute cocaine. The evidence shows that the defendant conspired with Mansfield and |inSgt. Rowland to sell crack cocaine. Also, the evidence clearly shows that the defendant sold cocaine to Sgt. Rowland. The two crimes did not involve the same evidence, and were not the same offense.

Here, the crimes of distribution of cocaine and conspiracy to distribute cocaine were separate and distinct offenses. The defendant could have been convicted of distribution of cocaine as a principal without the state proving that a conspiracy to distribute cocaine occurred. Also, defendant could have been convicted of conspiracy to distribute cocaine without proof that the distribution actually took place. The legislature has recognized that both statutes involved in this case serve different purposes and each violation is a separate offense with different penalties. As such, the prohibition against double jeopardy does not prohibit defendant’s convictions.

We therefore conclude that a rational fact finder could have found that there was an agreement or combination of minds between the defendant and Mansfield when they transferred the cocaine from Mansfield, and an act in furtherance of that agreement, when Mansfield transferred the cocaine to the defendant for the purpose of selling it to Sgt. Rowland. Separate and distinct evidence was presented for both crimes, and the prosecution and conviction for both offenses did not subject the defendant to double jeopardy. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: |.GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Robert Lewis HARDY, Jr., Appellant.
    No. 36,666-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Carey J. Ellis, III., Louisiana Appellate Project, for Appellant.
    Richard Ieyoub, Attorney General, Jerry Jones, District Attorney, Stephen Winters, Assistant District Attorney, for Ap-pellee.
    Before GASKINS, CARAWAY and KOSTELKA, JJ.
   |.GASKINS, J.

The defendant, Robert Lewis Hardy, Jr., appeals as excessive his sentence to 30 years at hard labor and a fine of $250,000.00 following his conviction by a jury of possession of cocaine in excess of 400 grams, a violation of La. R.S. 40:967(F)(l)(c). The conviction and sentence are affirmed.

FACTS

On June 11, 2000, at approximately 8:00 a.m., the defendant was observed by law enforcement officials following closely behind another vehicle on 1-20 while traveling at approximately 70 m.p.h. The defendant was stopped for following too close. When he got out of his vehicle, he seemed nervous and would not make eye contact with the officer. The defendant, who had a Florida driver’s license, at first said that he had wrecked his truck in Dallas and had rented the car to return to Florida. He then said that he had been to Dallas to visit a girlfriend.

The officer asked the defendant if there was anything in the car that shouldn’t be there. He said there was not and offered to let the officer look in the car. The defendant then initialed a consent to search form. A black bag was found in the trunk of the car which the defendant acknowledged belonged to him. The bag was found to contain two bundles of suspected cocaine which weighed approximately 2.92 kg.

The defendant was arrested, charged, and convicted by a jury of possession of cocaine in excess of 400 grams. Following review by the court of a presentence investigation (PSI) report, the defendant was ordered to serve 30 years at hard labor and to pay a fine of $250,000.00, the | ^mandatory minimum sentence for this offense. In default of payment of the fine, the defendant was ordered to serve one year in jail. He was given credit for time served.

The defendant filed a motion to reconsider sentence which was denied. The defendant then appealed, claiming that the trial court failed to comply with La. C. Cr. P. art. 894.1 in articulating the reasons for the sentence. He also claimed that the sentence was excessive.

DISCUSSION

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of |3offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, supra; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988).

In sentencing the defendant, the court noted that it reviewed the PSI. The report reflected that the defendant, a native of Florida, was a first felony offender. The defendant was 30 years old at the time of sentencing. He grew up in a stable two-parent home. The defendant had a high school education and graduated from junior college in 1998. He worked throughout most of his career as a truck driver. He claimed to have an eight-year-old son.

The defendant gave conflicting stories to the police officers, but never accepted any responsibility for the crime. He initially said he wrecked his car in Dallas and rented the one he was driving. Later, he claimed that, after having an argument with his girlfriend in Dallas, he stayed at the home of one of her male friends. The defendant contended that he did not know this person’s name and that the man must have put the cocaine in his luggage without the defendant’s knowledge. The rental car he was driving was rented to Juanita McDonald.

The second test is whether the sentence imposed is too severe depending on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly 14disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

It is a well-established principle that it is the legislature’s prerogative to determine the length of the sentence for crimes classified as felonies. State v. Dorthey, supra. A minimum sentence compelled by Louisiana law is presumed not to be excessive or violative of the guidelines. State v. Drane, 36,230 (La.App.2d Cir.9/18/02), 828 So.2d 107. Courts are charged with applying a statutorily mandated punishment unless it is unconstitutional. State v. Dorthey, supra; State v. Felder, 2000-2887 (La.App. 1st Cir.9/28/01), 809 So.2d 360, writ denied, 2001-3027 (La.10/25/02), 827 So.2d 1173. Although the supreme court stated in State v. Dorthey, supra, that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490; State v. Sewell, 35,549 (La.App.2d Cir.2/27/02), 811 So.2d 140.

In State v. Johnson, 1997-1906, (La.3/4/98), 709 So.2d 672, the supreme court also held that the burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, a defendant must clearly and convincingly show that he is exceptional, which, in this context, means that, because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. State v. Johnson, supra; State v. Sewell, supra.

At the time of the commission of this offense on June 11, 2000, the penalty for possession of more than 400 grams of cocaine called for a term of imprisonment at hard labor for not less than 30 years nor more than 60 years and to pay a fine of not less then $250,000.00 nor more than $600,000.00. Pursuant to Acts 2001, No. 402, § 4, the penalty for this offense was reduced to a term of imprisonment of not less than 15 years nor more than 30 years. The provisions regarding a fine remained the same. The effective date of the amendment is June 15, 2001. However, the reduction in sentence does not benefit the defendant. The defendant’s sentence is controlled by the penalty at the time of the offense and not that at the time of conviction. State v. Sugasti, 2001-3407 (La.6/21/02), 820 So.2d 518; State v. Drane, supra.

In this case, the trial court imposed the mandatory minimum sentence under La. R.S. 40:967(F). The defendant has failed to show that this sentence is unconstitutionally excessive as applied to him. The defendant | fihas made no showing that he is exceptional, justifying a downward deviation from the imposition of the mandatory minimum sentence. The defendant was convicted of possessing more than 400 grams of cocaine. In fact, he was in possession of and transporting many times the amount of cocaine required to trigger imposition of this serious penalty. Based upon the facts of this case, the sentence imposed is not excessive and is suitably tailored to both the offender and the offense.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Robert Lewis Hardy, Jr.

AFFIRMED.

      . The defendant was specifically given credit for time served on this default time, but the record is not clear exactly how much time the defendant had spent in jail prior to his sentencing. If the defendant does owe some of this fine, but claims indigency when it is due, a hearing should be held to determine if he is financially able to pay.


author: J^KOSTELKA, J.

text:
    Paula Leanne MOORE, Plaintiff-Appellant, v. Ronald J. MICIOTTO, Defendant-Appellee.
    No. 36,727-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Daye, Bowie & Beresko by David J. Daye, Shreveport, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, by Walter S. Salley, Shreveport, for Appel-lee.
    Before PEATROSS, KOSTELKA and HARRISON (Pro Tempore), JJ.
   J^KOSTELKA, J.

Paula Leanne Moore (“Moore”) appeals a judgment of the Office of Workers’ Compensation in favor of her former employer, Ronald J. Miciotto (“Miciotto”) denying her claim jfor disability benefits, medical expenses, penalties and attorney fees. For the following reasons, we affirm.

Facts

Moore was employed part-time doing secretarial work for Miciotto, a Shreveport attorney, from May 1992 through December 31, 1998. On December 21, 1999, she filed a disputed claim for workers’ compensation disability benefits and medical expenses against Miciotto. In her complaint, Moore claimed to have been diagnosed with several hand and wrist ailments which she attributed to her job duties with Miciotto.

During Moore’s employment with Mi-ciotto, her duties consisted mainly of typing pleadings and correspondence on an average of twenty to twenty-five hours per week. In late 1996 or early 1997, Moore began suffering from pain in her hand and stiffness and locking of her thumbs and fingers. She was treated by Dr. Thomas A. Pressly (“Dr.Pressly”), a rheumatologist, starting in March of 1997. Dr. Pressly initially diagnosed her hand pain as being caused by peripheral neuropathy (degenerative nerve disease affecting the nerves outside the spine or brain) and trigger finger. Moore continued to receive treatment from Dr. Pressly until her last visit in pJune of 1999. Just prior to the last visit, Dr. Pressly had reached the conclusion that Moore had also developed mild carpal tunnel syndrome and diabetic cheiroarthropathy (scarring of the joints as a result of diabetes) which were additional causes of the hand pain being experienced by Moore.

While being treated by Dr. Pressly, Moore was referred to hand surgeon Dr. Ronzee Bridges (“Dr.Bridges”) who performed surgery in May of 1998 on Moore’s right hand to relieve the symptoms being caused by the trigger finger. During his treatment of Moore, Dr. Bridges referred Moore to Dr. Eric Bicknell (“Dr.Bicknell”), a specialist in physical medicine and rehabilitation, to evaluate her for carpal tunnel syndrome. After Dr. Bicknell confirmed that Moore suffered from moderately severe bilateral carpal tunnel syndrome, Dr. Bridges performed two separate carpal tunnel surgeries on each of her hands in 1999. After the surgeries, Dr. Bridges referred Moore to Dr. Michelle Ritter (“Dr.Ritter”), an orthopedist, who treated her for pain in her hands, fingers, and elbows.

At trial Moore testified that she had not worked as a typist since December 31, 1998, when her condition forced her to leave the employ of Miciotto. She also testified that she has been an insulin-dependent diabetic for over twenty years and that she first began to experience tingling and numbness in her hands and fingers as early as 1985 or 1986. Moore also testified as to her lifelong involvement with painting.

The testimony of Moore’s physicians was submitted to the trial court in the form of trial deposition transcripts. The Workers’ Compensation Judge (“WCJ”) rendered judgment denying Moore’s claim for disability 1 «benefits, medical expenses, penalties and - attorney fees on the basis that Moore failed to prove by a preponderance of the evidence that she had sustained a work-related occupational disease. This appeal by Moore ensued.

Discussion

On appeal, Moore urges reversal of the WCJ’s judgment that Moore had failed to establish a work-related occupational disease and requests that she be awarded medical expenses in the amount of $35,792.25, as well as permanent total disability benefits. Moore argues that the WCJ erred because a preponderance of the evidence, i.e., the medical testimony, tended to show that her disabilities were causally linked to her work duties with Miciotto.

By definition, an occupational disease or illness is due to causes and conditions characteristic of and peculiar to a particular trade, occupation, process, or employment in which the employee is exposed to the disease or illness, and although carpal tunnel syndrome is recognized as an occupational disease, it must be work-related. La. R.S. 23:1031.1(B). A claimant asserting an occupational disease must prove by a preponderance of evidence that there is a disability which is related to an employment-related disease, that the disease was contracted during the course of employment, and that the disease is a result of the work performed. Hymes v. Monroe Mack Sales, 28,768 (La.App.2d Cir.10/30/96), 682 So.2d 871; Price v. City of New Orleans, 95-1851 (La.App. 4th Cir.03/27/96), 672 So.2d 1045, writ denied, 96-1016 (La.10/25/96), 681 So.2d 360. The causal link between an employee’s occupational disease and work-related duties must be established by a reasonable probability. Hymes, supra; Shields v. GNB Technologies, Inc., 33,911 (La.App.2d Cir.10/04/00), 768 So.2d 774; Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161. The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused the disease. Hymes, supra; Bryant v. Magnolia Garment Co., 307 So.2d 395 (La.App. 2d Cir.1975). Expert testimony is required to support a finding of an occupational disease. Hymes, supra; Price, supra; see also, Picard v. Dynamic Offshore Contractors, 618 So.2d 1183 (La.App. 3d Cir.1993).

The factual findings of the WCJ are subject to the manifest error rule. Alexander v. Pellerin Marble & Granite, 93-1698 (La.01/14/94), 630 So.2d 706; Green v. Conagra Broiler Co., 26,599 (La.App.2d Cir.03/01/95), 651 So.2d 335. Under this rule, the reviewing court does not decide whether the findings are right or wrong, but whether they are reasonable. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). The fact-finder’s choice between two permissible views of the evidence cannot be clearly wrong. Id.

We do not believe the trial court committed manifest error in finding that Moore’s condition was not caused by her work-related duties. As to the carpal tunnel syndrome, while the evidence certainly indicates the 1 ^possibility that her secretarial duties could have been a contributing factor to its development, two of her treating physicians, Dr. Pressly and Dr. Bridges, testified that her condition could have been solely caused by her long-term diabetic condition. Dr. Bridges went further in testifying that it was his belief that Moore’s diabetes was primarily responsible for the carpal tunnel syndrome. Thus, while the evidence allows for another permissible view on the causation issue (i.e., that her work as a secretary may have caused her carpal tunnel syndrome), the trial court’s choice between two permissible views does not constitute manifest error as to the carpal tunnel syndrome.

As to Moore’s trigger finger condition (which she stated affected all ten fingers), we likewise conclude that the WCJ did not commit manifest error in finding that Moore failed to prove the condition was work-related. Dr. Pressly testified that trigger finger “[is] very common to have if you have diabetes.” He continued in his opinion that “[W]e don’t fully understand why people get [trigger finger]. Certainly it seems to happen a lot more common [sic] in some families, so there’s a genetic influence with it. People that use their hands a lot will have a tendency to get this. And people that have diabetes have an increased risk of having this too.” He noted that whereas the typing could have precipitated Moore’s trigger finger condition, the diabetes itself could have been the cause of it as well. Although Dr. Bridges testified as to his belief that the typing was most probably the catalyst for the trigger finger, he was not totally confident that such activity alone was the sole cause of her condition. When pointedly asked whether the typing was a potential cause of her trigger finger, he | ¿responded, “... maybe, you know.” When further questioned as to whether her work as a secretary for Miciotto caused the trigger finger, Dr. Bridges responded, “It would be hard to say. I mean, you know, as far as — there’s .a definite cause and effect. I mean, could it contribute? Yes. Could it be stuff at home? It could be stuff at home.” Moreover, Dr. Bridges did allow for the fact that engaging in artwork could likewise be an offending activity depending on the type of art being done. And whereas Dr. Bridges maintained that the diabetes alone could not cause trigger finger and that a traumatic event was necessary, Moore never proved by a preponderance of the evidence that said traumatic event was typing, i.e., the work she did for Miciotto. Clearly, as to Moore’s trigger finger condition, the WCJ’s final determination was supported by the deposition testimony of Dr. Pressly, whose opinion was more unequivocal than Dr. Bridges’, making the conclusion reasonable and not manifestly erroneous. Thus, the WCJ was not clearly wrong in finding that Moore failed to prove by a preponderance of the evidence her trigger finger condition was work-related.

Conclusion

For the foregoing reasons, the trial court’s judgment in favor of Ronald J. Miciotto is hereby affirmed, with costs of this appeal assessed to Paula Moore.

AFFIRMED.

      . Moore also named as a defendant the Parish of Caddo where she had been a full-time employee as a secretary from approximately August of 1983 until December of 1990; however, the Parish of Caddo was dismissed from the suit by judgment dated August 17, 2000, granting its exception of prescription.

      . Although Moore listed several diagnoses in her complaint, the record reflects that she was treated primarily for carpal tunnel syndrome and flexure tenosynovitis (commonly referred to as trigger finger),

      . Moore additionally argues that she should benefit from a "presumption of disability" due to her prior qualification for disability benefits through the Social Security Administration. Such a presumption is expressly prohibited by statute which requires proof by clear and convincing evidence "unaided by any presumption of disability.” La. R.S. 23:1221(l)(c) and (2)(c). Accordingly, that argument is without merit.


author: U STEWART, J. hBROWN, C.J.,

text:
    Joseph Roland MERRITT, Plaintiff-Appellant, v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, Defendant-Appellee.
    No. 36,771-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2003.

      Bobby L. Culpepper & Associates, by Bobby L. Culpepper, Jonesboro, for Appellant.
    Keith M. Borne, Lafayette, for Appellee.
    Before BROWN, STEWART and HARRISON (Pro Tempore), JJ.
   U STEWART, J.

Joseph Merritt (“Merritt”) appeals the trial court’s dismissal of his suit on the basis of its finding that the parties had entered into a valid compromise agreement settling his claims against Safeway Insurance Company of Louisiana (“Safeway”). For the reasons assigned below, we affirm.

FACTS

On June 5, 2000, Merritt was performing repairs on the windshield wipers of a vehicle owned by J.B. Nolan and insured by Safeway when he injured his hand as a result of the wipers being activated. The injuries to Merritt’s hand required surgery, and he incurred various related medical expenses.

On or about June 15, 2000, Merritt contacted Safeway to inform it of his claim, and he spoke to claims adjuster, Bridget Henry. Merritt testified that he did not recall ever sending Safeway any copies of medical bills.

A few days later, Merritt contacted Ms. Henry again regarding a potential settlement of the case. The call was placed from the home of Merritt’s friend, Lorraine Gibson. Apparently, the phone handset was broken and Merritt had to use the speaker phone which allowed Ms. Gibson to hear the entire conversation. Gibson testified that Ms. Henry told Merritt that Safeway “would pay up to $5,000 on medical, $5,000 on his pain and suffering.” Although, he gave no specific account of what Ms. Henry actually said, Merritt testified that it was his impression that the policy had liability limits of $10,000.00 and that Safeway would pay him $5,000.00 for his pain and suffering and up to $5,000.00 for medical bills. Both Merritt | j>and Ms. Gibson testified that Ms. Henry did not specifically mention that she was in possession of any of Merritt’s medical bills. Despite the fact that no settlement was reached during that conversation, Ms. Henry testified Merritt contacted her on June 22, 2000, and informed her that he would be in the Lafayette area the following day and that he was ready to settle his claim. She claims they discussed what medical documentation was needed regarding the treatment he had received in order for Safeway to pay those medical bills.

On the following day, Merritt contacted Ms. Henry again to advise her that he was ready to settle, and according to Ms. Henry they again discussed the terms of settlement. She advised him that they would pay him $5,000.00 for pain and suffering and all medical bills incurred through the date of settlement so long as they did not exceed $5,000.00.

Merritt stopped by Safeway’s office on June 23, 2000, and while there is some disagreement as to whether he met with Ms. Henry or not, all parties agree that he picked up a letter and a check in the amount of $5,000.00. The letter reads as follows:

Dear Mr. Merritt:
This letter will confirm our telephone agreement on 6-23-00 regarding settlement of your injury claim.
Please find enclosed the settlement check of $5,000.00 payable to you. Endorsement of the check constitutes receipt and release of Safeway and its insured(s). Since all medical bills are not available, I have agreed to pay all related medical bills incurred through today to each provider. This is with the understanding that the medical bills should not exceed $5,000.00 as we only have $10,000.00 policy limit [sic].
|aIf you should have any questions, please feel free to contact me at one of the above listed telephone numbers., Sincerely,
Bridget Henry
Claims Adjuster

The check accompanying the letter was made out to Merritt for $5,000.00 and had a notation on the front indicating that it was for “Full Settlement Arising Out of Accident Occurring on 6-05-00.” Furthermore, the back of the check contained the following language just above the endorsement line:

If Payee is not the Assured the endorsement of this check constitutes a release and receipt of claims against the Safeway Insurance Company of Louisiana, Assured or any other Party on account of claim or accident referred to on the face hereof.

Ms. Henry testified that she met with Merritt, confirmed his identity by requesting and copying his driver’s license and reviewed the terms of the settlement before he left with the letter and check. Merritt testified that he met with a blond assistant of Ms. Henry’s who delivered the letter and check to him and assured him it was in accordance with the agreement he and Ms. Henry had made over the phone. There is no dispute that Merritt received the letter and check, and later negotiated the check by signing the back of it.

Safeway subsequently issued four more checks as follows:

1.) Check # 054760 payable to Lincoln General Hospital July 7, 2000 in the amount of $778.95.

2.) Check # 054841 payable to Merritt on July 10, 2000 for prescription reimbursement in the amount of $26.86.

| ¿3.) Check # 054842 payable to Ruston-Lincoln Ambulance Service on July 10, 2000 in the amount of $355.16.

4.) Check # 055329 payable to Green Clinic Rehab Services on July 18, 2000 in the amount of $321.00.

Ms. Henry testified that at the time the settlement was reached she had the bills reflecting the amounts represented by the first three checks, and that she had instructed Merritt to obtain the invoice for the services provided by the Green Clinic through the date of the settlement so they could pay the bills as per their agreement. Merritt testified that he contacted the Green Clinic and gave them Safeway’s fax number so that they could forward the invoice directly to Safeway.

Merritt filed the instant suit on May 31, 2001, claiming that Safeway owed the remainder of the difference between the medical bills previously paid by Safeway and $5,000.00 as his medical bills had subsequently surpassed the $5,000.00 cap. Safeway responded by asserting the affirmative defense that a compromise had previously been reached between the parties on this cause of action which would have res judicata effect as to the present claim being asserted.

The trial court agreed and dismissed Merritt’s claims with prejudice. This appeal followed.

DISCUSSION

Louisiana Civil Code article 3071 defines transaction or compromise as:

Ik A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

Louisiana Civil Code article 3078 addresses the res judicata effect of a transaction or compromise and states:

Transactions have, between the interested parties, a force equal to the authority of things adjudged. They can not [sic] be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.

La. C.C. art. 3071 refers to a compromise as a contract that must be reduced into writing. Obviously, the check meets the writing requirement of La. C.C. art. 3071. We must determine whether the check was a contract of compromise, and if so, whether the endorsement and negotiation by Merritt of the check signified consent. We note that this court has previously recognized that a check can serve as a compromise if it recites that it is in full payment for all claims and the draft is endorsed and negotiated. Jerome v. Duggan, 609 So.2d 1119 (La.App. 2d Cir.1992).

La. C.C. article 1906 defines a contract as an agreement by two parties whereby obligations are created, modified or extinguished. The check represents an agreement, because it is signed by both parties, and it contains terms, especially that of: “FULL SETTLEMENT ARISING OUT OF ACCIDENT OCCURRING ON 6 05 00.” The terms of the agreement Land purpose for the payment of the money were further illustrated by the letter that accompanied it. The letter clearly explains that the intent of tendering the check along with Safeway’s agreement to pay all medical bills incurred by Merritt as of June 23, 2000, is to settle Merritt’s claims against it and its insured, and that by endorsing the check he releases Safeway and its insured. Thus, the object of the contract was to settle the matter between the parties. Finally, Merritt’s consent to this contract is evidenced by his endorsement and negotiation of the check just below the receipt and release language quoted above.

We find the present situation constitutes the permissible form of compromise described by the Louisiana Supreme Court in Felder v. Georgia Pacific Corp., 405 So.2d 521 (La.1981), as follows:

[T]he requirement that the agreement be in writing and signed by both parties does not necessarily mean that the agreement must be contained in one document. It would suffice that there be a written offer signed by the offerer and a written acceptance signed by the acceptor, even if the offer and the acceptance are contained in separate writings. In other words, where two instruments, when read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement, a written compromise agreement, as contemplated by La. C.C. art. 3071, has been perfected.

Merritt has argued in his brief that parole evidence is admissible to show an error of fact vitiating consent which could in turn serve as the basis for rescinding a compromise. Presumably to prove such error he cites the alleged acknowledgment by the claims adjuster of her awareness that Merritt was in a hurry to settle. We fail to see how this fact alone vitiates Merritt’s consent to the compromise. Furthermore, the record fails to reveal any other substantive inconsistencies between the parties’ version of events. |7 Ms. Henry testified that she extended to Merritt the offer to settle for $5,000.00 for pain and suffering and all incurred medical expenses through the date of settlement not to' exceed $5,000.00. While Merritt has testified as to his understanding of the agreement reached between the parties as being $5,000.00 for pain and suffering and no more than $5,000.00 for medical expenses, neither he nor his friend Ms. Gibson expressly denied that Ms. Henry used the caveat regarding a cutoff date for medical expenses. Merritt’s testimony is entirely consistent with Ms. Henry’s testimony with the exception that it makes no mention, either in denial or admission, that the offer on medicals was subject to a cutoff date.

Merritt also argues that Safeway’s actions are inconsistent with the assertion that the $5,000.00 check constitutes a contract of compromise because they subsequently issued checks to cover Merritt’s aforementioned medical expenses. We see no such inconsistency. Safeway’s actions were entirely in accordance with the compromise agreement as set forth in their letter. The fact that they acted in accordance with that agreement by not claiming that the check alone was controlling should not be held against them.

Merritt admits having received the letter and the check simultaneously. He testified at trial, however, that he did not read the letter before negotiating the check and he did not read any of the release language on the check before signing it. He should not now be heard to complain that he was unaware of the terms of the agreement which were clearly spelled out in the documentation provided to him.

J^CON CLUSION

For the foregoing reasons, we affirm the judgment of the trial court dismissing Merritt’s claims against Safeway. The costs of this appeal are assessed against appellant.

AFFIRMED.

BROWN, C.J., concurs with written reasons.

hBROWN, C.J.,

concurring.

No one argued that Merritt was mislead by statements that the $10,000 policy limited his recovery of general damages to $5,000 and special damages of $5,000.


author: I .WILLIAMS, Judge.

text:
    Jane W. McKOIN, et al., Plaintiff-Appellant, v. Eugene A. HARPER, et al., Defendant-Appellee.
    No. 36,533-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2003.

      Travis M. Holley, Bastrop, Hollis G. Kent, Jr., for Appellants.
    Robin D. McGuire, Lafayette, John C. Hamilton, Oak Grove, for Appellees, Joyce Harper & Eugene Harper.
    Phillip M. Lester, Bastrop, for Appellee, Frank Messinger.
    John C. Hamilton, Lafayette, for Appel-lees/Intervenors, Dorothy Summarell, Harold B. Summarell & Gary B. Harper.
    Alex W. Rankin, for Third Party Appel-lees, James E. Davison and Dianne 0. Davison.
    Benjamin C. Perry, Third Party Appel-lee, In Proper Person.
    Jerry F. Bray, Third Party Appellee, In Proper Person.
    Carol R. Powell, Third Party Appellee, In Proper Person.
    Before BROWN, WILLIAMS and STEWART, JJ.
   I .WILLIAMS, Judge.

The plaintiffs, Jane McKoin, Kelsey McKoin, Carol Ann Herrington and Scott McKoin (“the McKoins”), appeal a judgment establishing the boundary between adjacent tracts and determining ownership of the land in favor of defendants, Eugene Harper, Joyce Harper, Harold Summarell, Dorothy Summarell and Gary Harper (collectively “Harper”). For the following reasons, we affirm.

FACTS

The McKoins and Harper are owners of adjacent tracts of land with a boundary line at the west edge of McKoins’ property and at the east edge of Harper’s land. In December 1996, the McKoins filed suit alleging that Harper had built a metal building which encroached on the McKoin land and requesting that Harper be ordered to remove the building. Harper filed an answer with a reconventional demand against the McKoins and third-party demands against Jerry Bray, Benjamin Perry and Carol Powell, requesting that the court judicially establish the boundary between the disputed properties according to accepted surveying principles.

On September 26, 2000, the McKoins filed a supplemental petition alleging continuous and undisturbed possession of the disputed land for a period in excess of 30 years. Harper filed an exception on the grounds that McKoin was improperly trying to cumulate actions. The exception was withdrawn when the McKoins stipulated they were not seeking removal of the building or damages from Harper. Thus, the remaining issue was determination of the boundary.

| ¡.At trial, the McKoins presented testimony by two land surveyors, Frank Mes-singer and James Braswell. In May 1981, Messinger had prepared a survey of Harper’s property in an action to establish his western boundary. The survey plat showed that there was a fence on the eastern side of Harper’s land. This fence had run along one side of a lane located between the Harper and McKoin tracts that had been used as an access road by other landowners and as a utility right-of-way. The road had since fallen out of use. The defendant, Harper, produced testimony by surveyor Michael Mayeux, whose findings differed from Messinger’s with regard to placement of the boundary.

In its written reasons, the trial court accepted Mayeux’s survey results, finding that he had applied accepted principles of surveying in his work by referring to government surveys of the area and to the deeds by which the parties had acquired their property. The trial court also concluded that plaintiffs had failed to prove adverse possession by a preponderance of the evidence, finding that they never intended to possess the area of the access lane adjacent to their western fence.

The trial court rendered judgment in favor of Harper against the third-party defendants and against the McKoins, establishing the location of the boundary between the adjacent tracts and recognizing Harper’s ownership of the disputed property. The McKoins’ motion for new trial was denied. The McKoins appeal the judgment.

JjDISCüSSION

The McKoins contend the trial court erred in establishing the boundary line in the present case. The McKoins argue that the court should have relied on the 1981 survey plat, which was attached to the boundary agreement between Harper and a third party.

The court shall fix the boundary according to the ownership of the parties. If neither party proves ownership, the boundary shall be fixed according to limits established by possession. LSA-C.C. art. 792. When one party relies on title and the other on acquisitive prescription, the party relying on title will prevail unless the adversary establishes his ownership by acquisitive prescription. Pace v. Towns, 33,071 (La.App.2d Cir.4/5/00), 756 So.2d 680.

Ownership of immovable property may be acquired by prescription of 30 years without the need of just title. LSA-C.C. art. 3486. If a party and his ancestors in title possessed for 30 years more land than called for in the title without interruption and within visible bounds, the boundary shall be fixed along those bounds. LSA-C.C. art. 794. The party who seeks title to a tract of land through acquisitive prescription bears the burden of proof. Bowman v. Blankenship, 34,558 (La.App.2d Cir.4/4/01), 785 So.2d 134.

Whether or not disputed property has been possessed for 30 years without interruption is a factual issue which will not be disturbed on appeal absent manifest error. Additionally, boundary location is a question of fact and the trial court’s determination should not be reversed unless it is clearly wrong. Bowman, supra; Pace, supra.

4 In the present case, the testimony demonstrated that the property at issue was part of a larger tract owned by Ellis and Robert Huff, who partitioned the land in 1928, as shown by a survey plat prepared by A.C. Volk. As a result of this partition, Ellis Huff received a tract of land labeled Lot 4 and Robert Huff received Lot 2, plus a strip of land 30 feet wide along the eastern edge of Lot 4 as an access lane to his property. Thus, the east boundary of Ellis Huffs property was the western edge of the access lane. In 1979, Harper bought the easternmost 22 acres of Lot 4, the area west of the lane.

Messinger testified that in 1981, when he prepared a survey plat in connection with a boundary agreement between Harper and an adjacent landowner, there was only one fence in place dividing the Harper and McKoin tracts. Messinger stated that he determined the fence was on the east side of the lane, based upon the distance from the fence to the eastern line of Section Two of the township survey. The McKoins contend that this testimony proved that the fence depicted in the 1981 survey plat was located on the east edge of the lane and thus constituted their western boundary.

Michael Mayeux testified that he reviewed the title documents to identify the property which had been transferred to Harper. Mayeux also reviewed the Government Land Office township survey plats, the Huff partition plat and the 1981 boundary agreement plat. Mayeux explained that a surveyor’s task is to go out to the field and locate the fixed monuments referenced in the prior government and private surveys and then to prepare a plat reporting the distances between the fixed monuments. Mayeux |Rdescribed a monument as either natural, such as a tree, or artificial, such as an iron pipe, which is set in the ground to mark the corners of survey lines.

Mayeux testified that in the field he identified the monuments mentioned in the prior government and partition surveys and prepared a plat documenting the origin of the monuments he found. Mayeux stated that the monumentation supported the placement of Harper’s title boundary at the west edge of the 30-foot lane, a position which coincided with the location of the fence line identified in Messinger’s 1981 plat. Thus, contrary to Messinger’s determination, Mayeux opined that the fence shown in the 1981 plat was located on the west side of the lane and not the east.

Regarding the reason for the discrepancy, Mayeux testified that most of the survey section corners shown in Messinger’s plat did not correspond to a source document by which to trace the origin of the monument that Messinger had reportedly found. Mayeux stated that in 1981, Harper purchased the strip of land representing the area of the lane adjacent to his tract from Robert Huff. Mayeux testified that as a result, Harper owned by title land on both sides of the fence line, so that the boundary between the Harper and McKoin tracts was located at the eastern edge of the access lane as depicted in his survey plat.

The trial court was presented with conflicting expert opinions based upon contradictory survey plats. After weighing the credibility of the witnesses and considering the evidence, the trial court found that the methodology applied by Mayeux was more consistent with generally accepted surveying principles and therefore accorded greater weight to |fiMayeux’s survey results. In light of the evidence presented, the court’s choice was reasonable. After reviewing the record, we cannot say the trial court was clearly wrong in finding that Harper had proven title ownership of the disputed property and in establishing the boundary between the parties at the location shown in the survey plat prepared by Mayeux. Thus, the judgment is supported by the evidence. The assignment of error lacks merit.

Acquisitive Prescription

The McKoins contend the trial court erred in finding that they failed to prove 30 years possession of the disputed strip of land. They argue that they exercised uninterrupted possession of the land up to the fence line shown in Messinger’s 1981 survey plat.

Jane McKoin, who was 79 years old, testified that she had lived on the McKoin tract since her childhood and that her family maintained a fence around the property. She stated that the fence on the west side of the McKoins’ property ran along the eastern edge of a road which was used for access by other property owners. McKoin testified that over time the lane became overgrown with shrubs and trees and that in the early 1980s, most of the McKoins’ west fence was taken down by her son-in-law, Dale Herrington.

G.C. Tatum, who operated the McKoins’ dairy from 1967 to 1979, testified that he maintained the fences around the McKoin tract, including the fence on the western side of the property. Tatum also stated that the McKoins’ western fence ran along the east side of an access lane.

|7Eugene Harper testified that when he purchased his tract of land in 1979, the lane was overgrown by a thicket running along the eastern side of his land and the western side of the McKoin land. Harper stated that he once observed two fences within the thicket, which was cleared in 1980. Harper testified that he purchased the strip of land representing the area of the lane the following year.

The testimony demonstrated that the McKoins possessed land up to their western fence, which ran along the east side of the access lane. The opinions of the expert surveyors differed over the question of which side of the lane had been occupied by the fence shown in the 1981 boundary agreement survey plat. As we previously noted, the evidence presented supports a finding that the 1981 survey plat depicts the fence which had run along the west side of the lane. Thus, contrary to their contention, the McKoins did not show that more probably than not they possessed the land up to the fence depicted in the 1981 survey plat.

Consequently, we cannot say the trial court was clearly wrong in finding that the McKoins failed to satisfy their burden of proving by a preponderance of the evidence 30 years of continuous and uninterrupted possession of the disputed property sufficient to establish ownership of the land by acquisitive prescription. The assignment of error lacks merit.

In their remaining assignments of error, the McKoins contend the trial court erred in assuming that there was a difference of only two inches between the results of the surveys by Messinger and Mayeux and in declining to order another survey subsequent to the trial.

a After reviewing the record, we conclude that the trial court’s reference to a two-inch area of dispute in its written reasons for judgment did not refer to the difference between survey results, but to the McKoins’ contention that Harper’s shed encroached onto their land approximately two inches in relation to the fence line shown in the 1981 survey plat. Moreover, an appeal lies from the judgment itself, not from the reasons for judgment. Wilson v. Wilson, 30,445 (La.App.2d Cir.4/9/98), 714 So.2d 35. As we stated above, the record supports the trial court’s judgment.

Regarding the McKoins’ suggestion that another survey is required in this matter, we note that survey plats prepared by Braswell, Messinger and Mayeux were admitted into evidence along with the surveyors’ testimony explaining their methodology and results. Based upon this record, the McKoins have failed to demonstrate the need for any further surveying of the disputed property. Consequently, the trial court did not err in declining to order an additional survey of the land at issue in this case. The assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, Jane McKoin, Kelsey McKoin, Carol Ann Her-rington and Scott McKoin.

AFFIRMED.