text:
    STATE ex rel. Jules CARRACCI v. STATE of Louisiana.
    No. 2002-KH-2834.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Carracci, Jules; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 97-5758; to the Court of Appeal, Fifth Circuit, No. 02-KH-936.

Writ granted; case remanded to the district court. If it has not done so already, the district court is ordered to grant relator an out-of-time appeal and appoint counsel to prosecute it. State v. Counterman, 475 So.2d 336, 340 (La.1985).


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Lance H. AYERS v. STATE of Louisiana.
    No. 2003-KH-2703.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Ayers, Lance; — Plaintiff; Applying for Reconsideration of this Court’s action dated October 10, 2003; Parish of Orleans Criminal District Court Division “C”; docket No. 434-813, Court of Appeal, Fourth Circuit No. 2003-K-0774.

Granted for the sole purpose of transferring the pleading to the Court of Appeal, Fourth Circuit, for enforcement of its order in State v. Ayers, 03-0774 (La.App. 4th Cir.5/21/03), if it has not done so already.


text:
    STATE of Louisiana v. Rickey LITTLE.
    No. 2003-KH-3395.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Little, Rickey; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. M, Nos. No # .

Writ granted for the sole purpose of transferring the application to the district court for a hearing at which the court will direct the district attorney and Department of Public Safety and Corrections, Division of Probation and Parole to cooperate and move relator’s cases toward disposition.


text:
    STATE of Louisiana v. Leroy BANKS.
    No. 2003-KH-3448.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Banks, Leroy; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, Nos. 02-5507, 02-4223; to the Court of Appeal, Fifth Circuit, No. 03-KH-765.

Granted for the sole purpose of transferring the filing to the district court for its consideration under La.C.Cr.P. art. 701(F).


text:
    STATE ex rel. Claude E. WOODS v. STATE of Louisiana.
    No. 2002-KH-3041.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Woods, Claude E.; — Plaintiff; Applying for Reconsideration of this Court’s action dated October 31, 20031; Parish of Feliciana, 20th Judicial District Court, Div. “A”, No. W-75-2-61.

Denied.


text:
    Byron POWELL & Debbie Powell v. WALKER CONSTRUCTION COMPANY, INC., et al.
    No. 2003-CC-2924.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Powell, Byron et al.; Powell, Debbie; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Winn, 8th Judicial District Court Div. 0, No. 37168; to the Court of Appeal, Second Circuit, No(s). 38030-CW, 38115-CW.

Not considered, not timely filed.

TRAYLOR, J., recused.


text:
    STATE of Louisiana v. Bryce LEIGHTY, Jr.
    No. 2003-KK-2949.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 12-01-233; to the Court of Appeal, First Circuit, No. 2003 KW 1697.

Not considered, not timely filed.


text:
    In re G.T.
    No. 2003-CK-3509.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re G.T.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish Juvenile Court, No. 2003-JU-00833; to the Court of Appeal, Fifth Circuit, No. 03-K-1337.

Not considered; not timely filed.


text:
    Christine Moore BARTON v. John Vernon BARTON.
    No. 2003-C-3364.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Barton, John Vernon; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, East Baton Rouge Family Court, No. 112,338; to the Court of Appeal, First Circuit, No. 2003 CA 0181.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Ernestine D. SELLERS.
    No. 2002-K-1322.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Sellers, Ernestine D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 2000-2326; to the Court of Appeal, Fourth Circuit, No. 2001-KA-1903.

Denied.

JOHNSON, J., would grant the writ.


text:
    Reginald BERNARD v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Louisiana Board of Parole, Richard L. Stalder, Secretary, Louisiana Department of Public Safety and Corrections, and E. Peggy Landry, Chairman, Louisiana Board of Parole.
    No. 2002-KP-2613.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Bernard, Reginald; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 471,026; to the Court of Appeal, First Circuit, No. 2000 CA 1912.

Denied.


text:
    STATE ex rel. Mickey TAYLOR v. STATE of Louisiana.
    No. 2002-KH-3126.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Taylor, Mickey; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 80300; to the Court of Appeal, First Circuit, No. 2002 KW 0868.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. David Wayne POYDRAS v. STATE of Louisiana.
    No. 2002-KH-3189.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Poydras, David Wayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, No. 52,685; to the Court of Appeal, Third Circuit, No. KH 02-00564.

Denied.

KNOLL, J., recused.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Darrell MORGAN v. STATE of Louisiana.
    No. 2002-KH-3207.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Morgan, Darrell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 373-032; to the Court of Appeal, Fourth Circuit, No. 2002-K-1961.

Denied.


text:
    STATE ex rel. Eldridge FREY v. STATE of Louisiana.
    No. 2002-KH-3208.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Frey, Eldridge; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 362-207; to the Court of Appeal, Fourth Circuit, No. 2002-K-2184.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Alvin HANDY v. STATE of Louisiana.
    No. 2002-KH-3209.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Handy, Alvin;' — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 415-537; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0569.

Denied.


text:
    STATE ex rel. Michael HARVEY v. STATE of Louisiana.
    No. 2002-KH-3217.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Harvey, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 404-228; to the Court of Appeal, Fourth Circuit, No. 2002-K-1576.

Denied.


text:
    STATE ex rel. Troy HOPKINS v. STATE of Louisiana.
    No. 2002-KH-3218.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Hopkins, Troy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 190230; to the Court of Appeal, Second Circuit, No. 36920-KH.

Denied.


text:
    STATE ex rel. Robert NORWOOD v. STATE of Louisiana.
    No. 2002-KH-3220.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Norwood, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 279-452; to the Court of Appeal, Fourth Circuit, No. 2002-K-1627.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. James SPIKES v. STATE of Louisiana.
    No. 2002-KH-3235.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Spikes, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. B, No. 99 CR5 75460; to the Court of Appeal, First Circuit, No. 2002 KW 1863.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Marlon ARMSTEAD v. STATE of Louisiana.
    No. 2002-KH-3238.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Armstead, Marlon; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 405-734; to the Court of Appeal, Fourth Circuit, No. 2002-K-2042.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Terry JOHNSON.
    No. 2003-KP-1032.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 295-234; to the Court of Appeal, Fourth Circuit, No. 2003-K-0243.

Writ denied. The state may seek review in the court of appeal and this Court following any unfavorable rulings below.


text:
    STATE of Louisiana v. Gregory JONES.
    No. 2003-KP-1034.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Jones, Gregory; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 00-2263; to the Court of Appeal, Fifth Circuit, No. 03-KH-194.

Denied.


text:
    STATE of Louisiana v. Shermond ESTEEN.
    No. 2003-K-1486.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Esteen, Shermond; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 98-0218; to the Court of Appeal, Fifth Circuit, No. 02-KA-1241.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Willie PIER.
    No. 2003-K-1737.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Pier, Willie; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. D, No. 12991; to the Court of Appeal, First Circuit,.No. 2002 KA 1476.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Terry D. FRYE.
    No. 2003-K-1754.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Frye, Terry D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Tensas, 6th Judicial District Court Div. B, No. 58,210; to the Court of Appeal, Second Circuit, No. 37,-009-KA.

Denied.


text:
    STATE of Louisiana v. Wardell SKIDMORE.
    No. 2003-KO-1780.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Skidmore, Wardell; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 427-437; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1941.

Denied.


text:
    STATE of Louisiana v. John T. POWELL, III.
    No. 2003-K-1821.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Powell, John T. Ill; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 98-1016; to the Court of Appeal, Fifth Circuit, No. 03-KA-186.

Denied.


text:
    STATE of Louisiana v. James BELT.
    No. 2003-K-1840.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   . In re Belt, James; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 407-467; to the Court of Appeal, Fourth Circuit, No. 2003-KA-0045.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Raymond LAUGAND.
    No. 2003-K-1868.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Laugand, Raymond; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 383-706; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0873.

Denied.


text:
    STATE of Louisiana v. Johnny W. BRISTER, Sr.
    No. 2003-OK-1870.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Brister, Johnny W. Sr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, No. 62,723; to the Court of Appeal, Third Circuit, No. 03-47.

Denied.


text:
    STATE of Louisiana v. Willie SCOTT.
    No. 2003-K-1872.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Scott, Willie; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 424-186; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1349.

Denied.


text:
    SAMARITAN HEALTHCARE, INC. v. James D. REID.
    No. 2003-C-1902.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Samaritan Healthcare Inc.;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 461,237; to the Court of Appeal, Second Circuit, No. 37,102-CA.

Denied.

KIMBALL, J., would'grant the writ.


text:
    STATE of Louisiana v. John C. NORMAN.
    No. 2003-KO-1934.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Norman, John C.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 00-356; to the Court of Appeal, Fifth Circuit, No. 03-KA-248.

Denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    STATE of Louisiana v. John C. NORMAN.
    No. 2003-KO-1938.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Norman, John; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 00-356; to the Court of Appeal, Fifth Circuit, No. 03-KA-248.

Denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    STATE of Louisiana v. Bobbie L. CAMPBELL.
    No. 2003-K-1941.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Campbell, Bobbie L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 410-122 J; to the Court of Appeal, Fourth Circuit, No. 2003-KA-0301.

Denied.


text:
    STATE of Louisiana v. Michael L. HARRIS.
    No. 2003-KO-1977.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Harris, Michael L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 424-836; to the Court of Appeal, Fourth Circuit, No. 2002-KA-2434.

Denied.


text:
    Lane T. CHISHOLM and Susan Chisholm v. CLARENDON NATIONAL INSURANCE COMPANY, Jerry L. Parker, Individually and d/b/a Action Mobile Home Movers and Max Robinson.
    No. 2003-C-2608.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Clarendon National Ins, Co.; Parker, Jerry L. indv. and d/b/a; Action Mobile Home Movers; Robinson, Max; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. B, No. 61,197; to the Court of Appeal, Second Circuit, No. 37,022-CA.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Joyce Leblanc RICHARD v. The CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 2003-C-2688.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Richard, Joyce LeBlane; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 443066; to the Court of Appeal, First Circuit, No. 2002 CA 1900.

Denied.


text:
    John C. WINGRAVE v. Kevin HEBERT, et al.
    No. 2003-CC-2775.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Wingrave, John C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 99-17291; to the Court of Appeal, Fourth Circuit, No(s). 2003-C-0335, 2003-C-0336, 2003-C-0372.

Denied.


text:
    TERREBONNE PARISH SCHOOL BOARD v. BASS ENTERPRISES PRODUCTION COMPANY and Franks Petroleum, Inc.
    No. 2003-C-2786.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Bass Enterprises Production Company et al; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 127,049; to the Court of Appeal, First Circuit, No. 2002 CA 2119.

Denied.

TRAYLOR, J., recused.

KIMBALL, J., would grant the writ.

VICTORY, J., would grant the writ.


text:
    John C. WINGRAVE v. Kevin HEBERT, et al.
    No. 2003-CC-2825.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Whitney National Bank; Berger-on, Paul; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 99-17291; to the Court of Appeal, Fourth Circuit, No(s). 2003-C-0335, 2003-C-0336, 2003-C-0372.

Denied.


text:
    John C. WINGRAVE v. Kevin HEBERT, et al.
    No. 2003-CC-2826.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Boehmer, Donna; Abadie, Duane; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 99-17291; to the Court of Appeal, Fourth Circuit, No(s). 2003-C-0335, 2003-C-0336, 2003-C-0372.

Denied.


text:
    STATE of Louisiana v. Michael G. MCARTHUR.
    No. 2003-KK-2855.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re McArthur, Michael G.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 19634-02; to the Court of Appeal, Third Circuit, No. KW 03-01122.

Denied.


text:
    DONNAUD’S INC., Donald J. Donnaud, and Marian T. Donnaud v. GULF COAST BANK AND TRUST COMPANY.
    No. 2003-C-2862.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Donnaud’s Inc. et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 564-462; to the Court of Appeal, Fifth Circuit, No. 03-CA-427.

Denied.


text:
    TERREBONNE PARISH SCHOOL BOARD v. BASS ENTERPRISES PRODUCTION COMPANY and Franks Petroleum, Inc.
    No. 2003-C-2873.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Franks Petroleum Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 127,049; to the Court of Appeal, First Circuit, No. 2002 CA 2119.

Denied.

TRAYLOR, J., recused.

KIMBALL, J., would grant the writ.

VICTORY, J., would grant the writ.


text:
    Charles E. and Mary STEWART v. Scott POOLE, et al. Larry and Carol Johnson v. Scott Poole, et al.
    No. 2003-CC-2874.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Roy 0. Martin Lumber Co. Inc.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. D, No. 29833; to the Court of Appeal, First Circuit, No. 2003 CW 1198.

Denied. May reurge motion on appeal in the event of an adverse judgment.

TRAYLOR, J., would grant the writ.


text:
    Arthur BELL, Jr. and Brennon Bell v. Karl M. KREIDER, Desiree Ann Gaudet, Allstate Insurance Company, John Brock, Timothy Fondren, and Greater New Orleans Expressway Commission.
    No. 2003-C-2875.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Bell, Arthur Jr. et al.; Bell, Bren-non; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 580-886; to the Court of Appeal, Fifth Circuit, No. 03-CA-300.

Denied.


text:
    A.J. BRADFORD, et al. v. ONSHORE PIPELINE CONSTRUCTION CO., INC.
    No. 2003-C-2887.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Eland Energy, Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Richland, 5th Judicial District Court Div. A, No. 30,690; to the Court of Appeal, Second Circuit, No. 37,-421-CA.

Denied.


text:
    Laura GREER v. MAGNOLIA INVESTMENT d/b/a Checkmate Services and Mary Reiss.
    No. 2003-CC-2888.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Essex Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 02-2068; to the Court of Appeal, Fourth Circuit, No. 2003-C-0989.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Wayne AGUILLARD, et al. v. Charles W. MEINERS, et al.
    No. 2003-C-2891.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Aguillard, Wayne et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. E, Nos. 55,492, 55,034; to the Court of Appeal, Fifth Circuit, No(s). 03-CA-311, 03-CA-312.

Denied.


text:
    Dietmar FELBER v. STATE FARM FIRE AND CASUALTY COMPANY, Elizabeth Tetlow, Wife of and L. Mulry Tetlow.
    No. 2003-C-2893.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Felber, Dietmar; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 2002-1719; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0579.

Denied.


text:
    Roy A. VANDERHOFF, Sr. v. Doctor David A. BEARY.
    No. 2003-CP-2895.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Vanderhoff, Roy A.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 98-015; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0912.

Denied.


text:
    Kathy COCHRAN, Individually and as Natural Tutrix of Her Minor Children, Earl Cochran, III, David Cochran and Emily Cochran on Behalf of the Estate of Earl Cochran, Jr. v. Edward LAYRISSON, Sheriff of Tangipahoa Parish, Tangipahoa Parish Sheriff's Office, Deputy John Doe, Deputy Jane Doe, Estate of Sam J. Relan, Allstate Indemnity Insurance Company, Direct General Insurance Company, et al.
    No. 2003-C-2898.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Cochran, Kathy et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 94-775; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0766.

Denied.


text:
    Dan P. WHITE v. Carlton Russ GREER, M.D.
    No. 2003-CC-2904.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re White, Dan P.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 99-4318; to the Court of Appeal, Second Circuit, No. 38024-CW.

Denied.

TRAYLOR, J., recused.

JOHNSON, J., would grant the writ.


text:
    Rickey JOHNSTON v. LLOYDS INSURANCE CO.
    No. 2003-C-2905.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Johnston, Rickey; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Franklin, 5th Judicial District Court Div. A, No. 29,581A; to the Court of Appeal, Second Circuit, No. 37,-489-CA.

Denied.


text:
    Harold J. VINCENT v. CALCASIEU CAMERON HOSPITAL.
    No. 2003-CP-2907.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Vincent, Harold J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2003-000813; to the Court of Appeal, Third Circuit, No. CW 03-01002.

Denied.


text:
    Patricia COSTANZA and Gary Costanza, Sr. v. CITY OF COVINGTON, Parish of St. Tammany, and Louisiana Department of Transportation & Development.
    No. 2003-C-2917.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Costanza, Patricia et al.; Constan-za, Gary Sr.; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 99-10528; to the Court of Appeal, First Circuit, No. 2002-CA-2432.

Denied.


text:
    Cathy McMahon Wife of/and David G. MILLER v. Debra Whelchel Wife of/and Alexis Drago HOCEVAR.
    No. 2003-CC-2926.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Whelchel, Debra; Hocevar, Alexis D.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2002-16212; to the Court of Appeal, First Circuit, No. 2003 CW 1368.

Denied.


text:
    Michael MURPHREE and Robin Corona v. Richard DAIGLE, State of Louisiana, Through the Department of Transportation and Development and Parish of Ascension.
    No. 2003-C-2927.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Murphree, Michael et al.; Corona, Robin; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. D, No. 64,355; to the Court of Appeal, First Circuit, No. 2002-CA-1935.

Denied.


text:
    Terry P. BURNS v. APACHE CORPORATION and United States Fire Insurance Co.
    No. 2003-C-2928.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Apache Corporation; United States Fire Insurance Company; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Webster, Office of Workers’ Compensation District 1W, No. 02-04239; to the Court of Appeal, Second Circuit, No. 37,396-WCA.

Denied.

TRAYLOR, J., recused.


text:
    Sonja BARNEY v. PROGRESSIVE SECURITY INSURANCE COMPANY.
    No. 2003-C-2931.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Barney, Sonja; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2001-16485; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0435.

Denied.

JOHNSON, J., would grant the writ.


text:
    Patricia ADELMANN-CHESTER, et al. v. John N. KENT, D.D.S., et al.
    No. 2003-CC-2932.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Kent, John N. D.D.S. et al.; Board of Supervisors of Louisiana State University and Agricultural & Mechanical College d/b/a; L.S.U. School of Dentistry & Faculty Dental Practice; Louisiana State University; Louisiana State University Agricultural & Mechanical College; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 98-18330; to the Court of Appeal, Fourth Circuit, No. 2003-C-1129.

Denied.


text:
    In re: ADOPTION OF BABY BOY F.
    No. 2003-CJ-2933.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Louisiana State of; Department of Health and Hospitals; Office of Public Health; Vital Records Registry; — Other(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. [ A-XX-XXX-XX-X ]; to the Court of Appeal, Fourth Circuit, No. 2003-C-1529.

Denied.


text:
    Cheryl A. DUPRE v. STATE of Louisiana BOARD OF REVIEW, Ray Fredlund, Chairman.
    No. 2003-C-2934.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Dupre, Cheryl A.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2001-15678; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0153.

Denied.


text:
    Michael O’NEILL and Marilyn O’Neill v. DIXIE ELECTRIC MEMBERSHIP CORPORATION and JBFH Corporation.
    No. 2003-C-2935.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re O’Neill, Michael et al.; O’Neill, Marilyn; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 470,349; to the Court of Appeal, First Circuit, No. 2002 CA 2281.

Denied.


text:
    STATE of Louisiana v. Karen GETTRIDGE.
    No. 2003-KK-2952.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 425-215; to the Court of Appeal, Fourth Circuit, No. 2003-K-1521.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Joretta LEBEOUF and Murlin P. Lebeouf v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. And Other Consolidated Cases.
    No. 2003-CC-2955.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re LeBeouf, Joretta; LeBeouf, Mur-lin P. et al.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, Nos. 108,222, 108,497, 108,498, 108,874, 109,011, 109,012, 109,257, 109,306, 109,399, 109,400, 109,401, 110,043, 110,044, 110,045, 110,046, 110,074, 110,098, 110,099, 110,101, 110,123, 110,156, 110,392, 110,676, 110,677, 110,678, 110,732, 110,733; to the Court of Appeal, First Circuit, No(s). 2003 CW 1071, 2003 CW 1091.

Denied.


text:
    Rosemary NETTER, et al. v. Calvin MORGAN, et al.
    No. 2003-CC-2956.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Morgan, Calvin et al.; Jowin Express Inc.; Zurich American Insurance Company; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, Nos. 02-16248, 02-16249, 02-16250, 02-19014, 03-1508; to the Court of Appeal, Fourth Circuit, No. 2001-C-0741.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Earl BROWN, Jr., et al. v. Charles SAMSON, Jr. d/b/a Sam’s One Stop, et al.
    No. 2003-CC-2957.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Federal Corporation; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. C, No. 70057; to the Court of Appeal, First Circuit, No. 2003-CW-1063.

Denied.


text:
    Guy M. GUIDRY v. Clarence BREWER d/b/a Brewer’s Construction.
    No. 2003-C-2958.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Guidry, Guy M.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 6, No. 01-03319; to the Court of Appeal, First Circuit, No. 2002 CA 2693.

Denied.

CALOGERO, C.J., would grant the writ.


text:
    James COKER and Kay Coker v. Rusty MORRIS, et al.
    No. 2003-C-2959.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Traylor, Donald R. II; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. A, No. 61,598; to the Court of Appeal, Second Circuit, No. 37,688.

Denied.

TRAYLOR, J., recused.


text:
    Rosemary NETTER, et al. v. Calvin MORGAN, et al.
    No. 2003-CC-2960.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re State of Louisiana thru; Department of Transportation & Development;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, Nos. 02-16248, 02-16249, 02-16250, 02-19014, 03-1508; to the Court of Appeal, Fourth Circuit, No. 2001-C-0741.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Daryl J. WILLIAMS v. BET CONSTRUCTION, INC. and Eagle Pacific Insurance Company.
    No. 2003-C-2961.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Williams, Daryl J.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation Dist. 9, No. 00-01541; to the Court of Appeal, First Circuit, No. 2003 CA 0002.

Denied.


text:
    Joseph CASSARD, Sr. v. Nicholas CAMPO and State Farm Insurance Company.
    No. 2003-C-2963.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Cassard, Joseph Sr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 477,904; to the Court of Appeal, First Circuit, No. 2002 CA 2488.

Denied.

CALOGERO, C.J., would grant the writ.


text:
    Jonathan B. AINSWORTH v. Harold R. AINSWORTH, Jr. & Richard C. Ainsworth.
    No. 2003-CC-2964.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Ainsworth, Jonathan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2002-9224; to the Court of Appeal, Fourth Circuit, No. 2003-C-1626.

Denied.


text:
    Mary DUCHEIN, Individually and on Behalf of Her Minor Children, Jordon B. Duchein and Hilary Lauren Duchein v. Fernando VILAS and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-2966.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Duchein, Mary et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 460,352; to the Court of Appeal, First Circuit, No. 2003 CA 0018.

Denied.


text:
    B. Katherine Kelly MELANCON, Tracy Lynn Melancon, Holly Ann Melancon, and B. Katherine Kelly Melancon as Tutrix of Cory James Melancon v. Catherine A. SMITH, et al.
    No. 2003-C-2967.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Melancon, B. Katherine Kelly et al.; Melancon, Tracy Lynn; Melancon, Holly Ann; Melancon, B. Katherine Kelly as Tutrix; Melancon, James; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 92-13729; to the Court of Appeal, First Circuit, No. 2002 CA 2090.

Denied.


text:
    STATE of Louisiana v. Dorian ESTEVEZ.
    No. 2003-KK-3319.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Estevez, Dorian; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 96-624; to the Court of Appeal, Fifth Circuit, No. 2003-KH-1196.

Denied.


text:
    STATE ex rel. Jafus SIMMONS v. STATE of Louisiana.
    No. 2003-KH-3397.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Simmons, Jafus; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 371-162; to the Court of Appeal, Fourth Circuit, No. 2003-K-1300.

Denied.


author: | JAMES F. MCKAY III, Judge. MURRAY, J.,

text:
    Benitta WESCO v. COLUMBIA LAKELAND MEDICAL CENTER, Individually and d/b/a Lakeland Medical Center and Lakeland Medical Center, Dr. Sarah Laine and Dr. Washington Bryan.
    No. 2003-CA-0328.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2003.
    Rehearing Denied Jan. 30, 2004.
    Harry D. Hoskins, III, Hoskins & Hos-kins, LC, New Orleans, LA, for Plaintiff/Appellant.
    Dr. Sarah Lain, M.D., New Orleans, LA, In Proper Person, Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, Sr.).
   | JAMES F. MCKAY III, Judge.

Plaintiff/appellant, Benitta Wesco, appeals the trial court’s judgment granting an exception of prescription on behalf of defendant/appellee, Dr. Sarah Lain. We affirm the judgment of the trial court for the reasons hereinafter stated.

On July 10, 1996, appellant filed a claim with the Patient’s Compensation Fund (PCF) for a medical review panel. Appellant alleged negligence on the part of defendants, Lakeland Medical Center (Lake-land), Dr. Washington Bryan (Bryan) and Dr. Sarah Lain (appellee). The claim asserted that the defendants’ negligence caused appellant to undergo a second surgery on July 1, 1996, to correct what her first surgery on July 12, 1995, should have accomplished. On July 31, 1998, the proceeding before the PCF was dismissed due to appellant’s failure to comply with the procedural requirements of the Medical Malpractice Act (MMA) regarding the selection of an attorney chairperson.

Prior to the dismissal of the medical review panel, appellant filed suit against Lakeland, Bryan and appellee on July 1, 1997. The petition contained no service instructions, and the defendants were not served at that time. The petition was amended on September 28, 1999, and Lakeland and Bryan were served with the original and amended petitions. Appellee was not served.

Lakeland filed an exception of prematurity, which the trial court granted on November 29, 1999. On December 29, 1999, Bryan filed an exception of prescription. Thereafter, on February 17, 2000, appellant filed a second claim with the PCF. Lakeland responded with an exception of prescription. The trial court granted Bryan and Lakeland’s exceptions of prescription on June 1, 2000, dismissing appellant’s claims against them with prejudice. Appeal was taken from that judgment and this court affirmed the granting of the exceptions of prescription on November 14, 2001, in case number 2000-CA-2232.

Service of the original petition was made for the first time on appellee on September 16, 2002. Appellee responded by filing exceptions of prematurity, prescription, res judicata, abandonment and frivolous claim. On October 25, 2002, appellant filed another supplemental petition, alleging gross negligence on the part of appellee. Appellee was served with the supplemental petition on November 11, 2002. The trial court rendered judgment on December 13, 2002, in favor of appellee, granting the exception of prescription and dismissing the claim against appellee. The judgment of December 13, 2002 is now on appeal to this court.

Appellant cites as her assignments or error the trial court’s holding that gross negligence was covered by the MMA and the trial court’s granting of appellee’s exception of prescription.

In support of her position that gross negligence is not covered by the MMA, appellant cites Batson v. South Louisiana Medical Center, 98-0038 (La.App. 1 Cir. 12/28/98), 727 So.2d 613, reversed on other grounds, 1999-0232 (La.11/19/99), 750 So.2d 949. Appellant argues that although Batson involved a gross negligence claim against a state health care provider and the present case involves a private claim, it is unreasonable to treat the claims' differently. Appellant points out that while La. R.S. 40:1299.39A(l)(a)(iv)(cc) expressly excludes gross negligence claims against state healthcare providers, La. R.S. 40:1299.41A(l) does not have comparable language to exclude gross negligence for private claims under the MMA. Appellant relies on the concurring opinion in Batson, which stated:

Since the Louisiana Legislature and the Louisiana Supreme Court, in Williams v. State, Department of Health and Hospitals, 97-0055 (La.12/2/97), 703 So.2d 579, have indicated that there shall be no distinction between the applicability of the private and public malpractice acts, it is apparent that acts of gross negligence should also remove the private health care provider from the sanctuary of the Medical Malpractice Act. A cause of action given one, must also be afforded to the other.

Appellant submits that the concurring opinion in Batson further explained that one of the purposes behind the MMA was to protect good, hardworking, diligent physicians and was not intended to protect against gross negligence. Accordingly, appellant argues that as a matter of public policy and of legislative intent, the MMA should not be held to cover gross negligence for private claims.

Appellant’s prescription argument basically states that if the MMA does not cover the gross negligence claim, then the general prescription articles must apply. It is argued by appellant that pursuant to La. C.C. art. 3462, the timely filing of the original petition against appellee interrupted prescription.

Appellant argues that the pleadings make a prima facie showing of contra non valentum by alleging that the discovery of the malpractice did not occur until July 1, 1996, when her second surgery was performed. Therefore, appellant submits that the original petition filed on July 1, 1997, was timely. Appellant cites Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502, which held that when the pleadings make a prima facie showing of contra non valen-tum, the burden of proof shifts to the exceptor to prove the claim has prescribed. Appellant further Rasserts that appellee’s exception did not address this issue and she cannot meet her burden to show that contra non valentum does not apply.

In opposition, appellee argues that the prescriptive period applicable to medical malpractice actions is governed by La. R.S. 9:5628, which states that such actions must be filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect. In any event, even as to claims filed within one year from the date of discovery, such claims must be filed, at the latest, within a period of three years from the date of the alleged act, omission or neglect. Appellee further relies on the other procedural requirements of the MMA, particularly, La. R.S. 40:1299.47 which provides in parts:

A.(l) All malpractice claims against health care providers covered by this Part, ... shall be reviewed by a medical review panel established as hereinafter provided for in this Section.
(2)(a) The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part.... The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfea-sors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are subject of the request for review.
(c) The board shall dismiss a claim ninety days after giving notice by certified mail to the claimant or the claimant’s attorney if no action has been taken by the claimant or the claimant’s attorney to secure the appointment of an attorney chairman for the medical review panel within two years from the date the request for review of the claim was filed.

Appellee submits that appellant failed to appoint an attorney chairman within the time allowed, and pursuant to the above referenced articles, her claim is prescribed.

We will first address appellant’s argument that, as a matter of public policy and of legislative intent, the MMA should not be held to cover gross negligence. This issue was addressed by this court in Flood v. Pendleton Memorial Methodist Hospital, 2002-0440 (La.App. 4 Cir. 7/17/02), 823 So.2d 1002. In Flood, we acknowledged that the State Act excludes gross negligence from its coverage under certain circumstances, while the Private Act does not exclude gross negligence. Recognizing the differences between the statutes, we held in Flood that the Private Act was constitutional even though it excluded coverage for gross negligence. As in Flood, we find no merit in the argument that appellant’s gross negligence claim is not covered by the MMA.

Finding that the MMA covers appellant’s claim of gross negligence in the present case, we must next decide whether the claim has prescribed. This Court addressed this exact issue in the appeal taken from the granting of the exceptions of prescription of Lakeland and Bryan. Wesco v. Columbia Lakeland Medical Center, 2000-2232 (La.App. 4 Cir. 11/14/01), 801 So.2d 1187, writ denied, 2001-3304 (La.3/8/02), 811 So.2d 884. We hereby adopt our ruling from that appeal, which stated:

[A]fter Ms. Wesco’s claim with the PCF was dismissed, the prescriptive period began running again and Ms. Wesco would have had any time remaining under La. R.S. 9:5628(A) as of the date she first filed her PCF claim to file another claim with the PCF. Presuming Ms. Wesco’s PCF claim was filed nine days after discovery of the alleged act of negligence, she would have had almost one year from the dismissal, presumably July 31, 1998, in which to file another claim with the PCF. As it is, her second claim, filed on February 7, 2000, is not timely.

Id. at p. 1191.

We further held in the previous appeal, as we hold in the present case, that appellant’s contention, that the initial lawsuit interrupted prescription, was without merit. Relying on LeBreton v. Rabito, 97-2221(La.7/8/98), 714 So.2d 1226, we held that the general rules regarding prescription do not apply in medical malpractice actions. As stated by the Louisiana Supreme Court in LeBreton, “the filing of a medical malpractice claim with a medical review panel triggered the suspension of prescription specially provided by the Medical Malpractice Act, rather than the interruption of the liberative prescriptive period generally provided in the Civil Code.” In accordance with the jurisprudence, and with our holding in the previous appeal, we find that appellant’s case against appellee has prescribed.

For the foregoing reasons, we affirm the judgment of the trial court granting the exception of prescription in favor of appel-lee.

AFFIRMED.

MURRAY, J., concurring with reasons.

MURRAY, J.,

concurring with reasons.

Although I agree with the result reached in this case, I write separately to articulate the reason why our holding in Flood v. Pendleton Mem’l Methodist Hosp., 2002-0440 (La.App. 4 Cir. 7/17/02), 823 So.2d 1002, writ denied, 2002-2206 (La.11/8/02), 828 So.2d 1121, is dispositive of the gross negligence claim.

In Flood, the plaintiff-patient asserted a gross negligence claim against a private health care provider in an apparent attempt to circumvent the requirements of the private medical malpractice act. Recognizing that the Private Act differed from the State Act in that it lacked a gross negligence exclusion, the plaintiff asserted this difference rendered the Private Act unconstitutional. Rejecting that constitutional claim and finding the plaintiffs gross negligence claim covered by the Private Act, we reasoned that the State Act’s exclusion for gross negligence is a very narrow one. We stressed that it covers only “health care providers who are not otherwise qualified under the State Medical Malpractice Act, but who gratuitously treat patients either eligible for State treatment or who are referred from a State facility.” Flood, 2002-0440, p. 15, 823 So.2d at 1013 (citing La. R.S. 40:1299.39(A)(l)(a)(iv)(aa) and (cc)). We further reasoned that the Private Act only applies to qualified health care providers who contribute to the Patients’ Compensation Fund. For that reason, we concluded that “the Private Act would not apply to non-qualified health providers who gratuitously treat patients.” Id. We further concluded that “the gross negligence exception is not needed in the Private Act and that the Private Act is constitutional as written.” Id.

For these same reasons, I agree that the constitutional claim Ms. Wesco asserts is unpersuasive. The allegations of gross negligence asserted in her petition, to the extent those allegations otherwise qualify as “medical malpractice,” are not excluded from the Private Act merely because she labeled them gross negligence.

For these reasons, I respectfully concur.


author: PARRO, J.

text:
    Jodie COOPER v. ST. TAMMANY PARISH SCHOOL BOARD.
    No. 2002 CA 2433.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Rehearing Denied Jan. 22, 2004.

      William R. Mustian, III, Stanga & Mus-tian, Metairie, for Plaintiff-Appellant Jodie Cooper.
    Harry P. Pastuszek, Jr., Mandeville, for Defendant-Appellee St. Tammany Parish School Board.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   PARRO, J.

In this workers’ compensation case, Jodie Cooper appeals a judgment denying her claims for temporary total disability benefits or, in the alternative, for supplemental earnings benefits, as well as for penalties and attorney fees. We affirm.

FACTUAL BACKGROUND

Jodie Cooper, a lunchroom technician at Lee Road Junior High School in Coving-ton, whose employer was the St. Tammany Parish School Board, injured her left knee in a job-related accident on September 27, 1999. She worked until November, but in December 1999, arthroscopic surgery was performed to repair torn meniscus cartilage and open knee surgery was performed to remove a cyst from behind the knee. After a recovery period that included physical therapy and work hardening, Ms. Cooper returned to her job in the school cafeteria on May 11, 2000. At this point, her doctor began periodic injections to lubricate the knee, and she continued taking anti-inflammatory medications. Her employer paid all medical expenses and paid temporary total disability benefits until she returned to work.

Although her doctor had limited her to occasional standing and walking and occasional lifting up to thirty pounds, Ms. Cooper’s cafeteria position required constant standing and repetitive heavy lifting. She also had a temporary after-school-care job at another school, which was relatively light duty. During the summer of 2000, she worked another temporary job for the school system* at a summer camp in a position that did not require any lifting and' was within her physical limitations. Ms. Cooper worked at her cafeteria job the entire following school year, August 2000 to May 2001, but continued to experience pain and discomfort related to her knee injury.

On March 22, 2001, Ms. Cooper filed a disputed claim for compensation. She sought an increase in and reinstatement of wage benefits, which had terminated upon her return to work in May 2000. The claim also requested disability status, payment for disfigurement, penalties, and attorney fees.

In May 2001, over her and her supervisor’s objections, Ms. Cooper’s work day was increased from six hours per day to seven. When the next school year began in August 2001, Ms. Cooper returned to work. However, on September 5, 2001, she left and did not return, claiming she could no longer do the job because of pain. When she did not return to work, the school principal, Dennis Krieger, began termination proceedings based on her alleged physical inability to perform the work required by her job position. After a hearing, she was terminated from her job in November 2001. The termination included her cafeteria job, as well as the temporary positions in after-school care and the summer camp. She was not offered vocational rehabilitation or any other job with less demanding physical conditions.

Ms. Cooper’s workers’ compensation case was tried June 5, 2002, and judgment was rendered June 25, 2002. The judgment stated Ms. Cooper was entitled to continued reasonable and necessary medical treatment as prescribed by her treating physicians with respect to her September 1999 knee injury, and awarded her 25 weeks of benefits for disfigurement due to scarring, subject to a credit for benefits previously paid. Her claims for temporary total disability benefits or, in the alternative, supplemental earnings benefits were denied, as were her claims for penalties and attorney fees. Her motion for new trial was denied in a judgment rendered August 26, 2002. Ms. Cooper appealed both judgments.

She assigns as error the court’s failure to award supplemental earnings benefits, given the evidence that she is unable to earn 90 percent of her average monthly wage due to her job-related knee injury. She also assigns as error the court’s failure to award temporary total disability benefits, because she is in need of a period of vocational rehabilitation. Finally, she claims the court erred in failing to award penalties and attorney fees, when her employer’s only defense to her claim was a frivolous prescription argument.

STANDARD OF REVIEW

In a workers’ compensation case, as in other cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Smith v. Louisiana Dep’t of Corr., 93-1305 (La.2/28/94), 633 So.2d 129, 132; Kennedy v. Security Indus. Ins. Co., 623 So.2d 174, 175 (La.App. 1st Cir.), writ denied, 629 So.2d 389 (La.1993). The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993); Boudreaux v. Angelo Iafrate Const., 02-0992 (La.App. 1st Cir.2/14/03), 848 So.2d 3, 6.

In applying this standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether its conclusion was a reasonable one. Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the factual 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 v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556; Killett v. Sanderson Farms, 01-0277 (La.App. 1st Cir.5/10/02), 818 So.2d 853, 858.

SUPPLEMENTAL EARNINGS BENEFITS (SEB)

The purpose of SEB is to compensate the injured employee for wage-earning capacity she has lost as a result of her accident. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). Entitlement to SEB is provided by Louisiana Revised Statute 23:1221(3), under which the threshold prerequisite to recovery is that the |fiemployee’s injury results in her inability to earn wages equal to ninety percent or more of the wages she was earning at the time of the injury. Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). The injured employee bears the burden of proving by a preponderance of the evidence that the injury resulted in her inability to earn that amount in any employment. Id. A claimant is not entitled to SEB when her inability to earn wages equal to ninety percent of her pre-injury wages is due to circumstances other than her work-related injury. Smith v. J.E. Merit Constructors, Inc., 01-2824 (La.App. 1st Cir.11/08/02), 835 So.2d 749, 754. A claimant’s testimony that she is no longer able to return to her preinjury employment, without more, is insufficient to prove entitlement to SEB. Rapp v. City of New Orleans, 95-1635 (La.App. 4th Cir.9/18;96), 681 So.2d 433, 438, writ denied, 96-2925 (La.1/24/97), 686 So.2d 868. Whether a claimant has carried her burden of proof is a question of fact to be determined by the workers’ compensation judge. Williams v. Wal-Mart Stores, 00-1347 (La.App. 1st Cir.9/28/01), 809 So.2d 294, 298.

If the employee successfully bears her burden of proving her disability and resultant inability to earn at least 90 percent of her pre-injury wages, the burden shifts to the employer who, to defeat the employee’s claim for SEB 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 or available to the employee in her or the employer’s community or reasonable geographic region. See Daigle, 545 So.2d at 1008-09; Carignan v. Louisiana Compressor Maint, Co., 02-0180 (La.App. 1st Cir.12/30/02), 836 So.2d 476, 480. Then, if the employee further establishes, by clear and convincing evidence, that solely as a consequence of substantial pain, she cannot perform the employment that is offered, tendered, or available, she shall be deemed incapable of performing such employment and be entitled to SEB. LSA-R.S. 23:1221(3)(c)(ii).

The parties stipulated at trial that Ms. Cooper was injured at work and that the correct compensation rate for her weekly wage benefits was $171.80. All of her medical bills attributable to the work-related knee injury were paid, and she was paid temporary total disability benefits for twenty-six weeks. Those benefits terminated upon her return to work on May 11, 2000, at the same rate of pay that she had prior to her injury.

In oral reasons, the court explained its conclusions concerning SEB, stating:

Ms. Cooper was no worse for wear with respect to her knee condition on September 5th, 2001, the day she quit work, than she was 16 months earlier when she began work after her surgery on May 11th, 2000. The only significant change was the requirement by the employer that Ms. Cooper work seven hours per day as opposed to the six hours per day she had been accustomed to.
Dr. Van Deventer treated Ms. Cooper for the entire period during which she returned to work after surgery. The medical evidence of record falls short of supporting the Plaintiffs position that she is indeed unable to earn 90 percent of her preinjury wages as a result of a loss of earning capacity directly related to the knee injury.

Having reviewed the record in its entirety, we find there is evidentiary support for the trial court’s factual findings and its conclusions are reasonable. Ms. Cooper’s treating physician, Dr. Paul M. van Deven-ter, stated that when she initially returned to work in May 2000, she was working approximately seven hours per day and was having activity-related pain with her knee, some swelling, and some low back pain. Because he “felt a lot of her symptoms were from the underlying arthritis,” he began Synvise injections to lubricate the knee joint. He said he felt she had reached her point of maximum medical improvement at that time, but the injections might give her some increased relief. She returned to him in March 2001, still having occasional low back pain, but the knee examination was improved, in that there was no swelling. The injections and continued home physical therapy were providing her with some relief, but “she had findings consistent with underlying arthritis in the knee.” When Ms. Cooper came back to him in September 2001, she “felt that she just could not tolerate the physical demands of her work,” which was causing her significant discomfort in the knee. Again, Dr. van Deventer noted findings attributable to the arthritis in the knee and treated it symptomatically with a cortisone injection. His overall evaluation of her condition was basically unchanged.

On September 5, 2001, Dr. Van Deven-ter outlined the reasonable limitations on Ms. Cooper’s activity, stating in a letter to her employer’s insurer, “At this point in time I feel it is reasonable for Ms. Cooper to continue the duty that I have outlined in the past, namely occasional standing and walking, no limitations regarding sitting, occasional lifting of 25 to 30 pounds with frequent lifting of 10 pounds.” He said these recommendations were the same as when she initially returned to work. Dr. van Deventer did not say in May 2000 or in September 2001 that Ms. Cooper was totally unable to work at some job. He assigned her a 20 percent lower extremity impairment and an 8 percent whole body impairment, “based on the combined underlying degenerative arthritis and her meniscal injury,” each of which contributed 50 percent to her condition. In his notes concerning Ms. Cooper’s follow-up visit to him on September 6, 2001, Dr. van Deven-ter stated that, “unfortunately, due to her arthritis in her knee, [she] has been unable to fully participate in her work.” Dr. van Deventer’s testimony indicated that, to whatever degree she was unable to perform her job duties, at least half of her difficulty was due to the underlying arthritic condition, rather than to the work-related knee injury.

The evidence supports Ms. Cooper’s contention that knee pain precluded her from continuing the type of work she was doing as a lunchroom technician. The demands of that job exceeded the restrictions noted by Dr. van Deventer. However, Ms. Cooper testified that the job duties at her temporary positions were not so physically demanding that she experienced discomfort as a result of those jobs. Although she was not given the opportunity to continue in those jobs, her testimony indicates that she was capable of some employment. Her only statements concerning her inability to obtain other jobs were that she had called about a couple of home “sitting” jobs, but those required lifting that she could not do. She also said it appeared no one wanted to hire her, because she was a “risk” in her physical condition.

Although this is a close case, we are forced to agree with the trial court that this evidence simply falls short of satisfying Ms. Cooper’s burden of proof that she could not earn 90 percent of her pre-injury wages. She may not have been able to continue in her previous position, but she had the burden of proving, by a preponderance of the evidence, that her injury resulted in her inability to earn that amount in any employment. Having failed to carry that initial burden of proof, the burden never shifted to her employer to establish that she was physically able to perform some job that was offered or was reasonably available to her. Therefore, we find no error in the trial court’s conclusion that Ms. Cooper did not prove she was entitled to SEB.

TEMPORARY TOTAL DISABILITY (TTD) and REHABILITATIVE SERVICES

Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not the same or one similar to that in which the employee was customarily engaged when injured. LSA-R.S. 23:1221(l)(a) and (2)(a); Joseph v. J.E. Merit Constructors, Inc., 01-1666 (La.App. 1st Cir.6/21/02), 822 So.2d 72, 77, writ denied, 02-2295 (La.4/4/03), 840 So.2d 1201; Johnson v. Aetna Cas. & Sur. Co., 422 So.2d 1187, 1189 (La.App. 1st Cir. 1982), writ denied, 429 So.2d 127 (La.1983). When the employee is not engaged in any employment or self-employment, in order to be entitled to TTD benefits, the employee must prove by clear and convincing evidence that she is physically unable to engage in any employment or self-employment, including employment while working in any pain. LSA-R.S. 23:1221(l)(e); Atwood v. Ewing Timber, Inc., 34,045 (La.App. 2nd Cir.12/15/00), 774 So.2d 1140, 1145, writ denied, 01-0543 (La.5/11/01), 792 So.2d 733. An employee is not entitled to TTD benefits, despite her complaints of pain, when her treating physician indicates she can engage, at a minimum, in light duty work. Bolton v. Grant Parish School Bd., 98-1430 (La.3/2/99), 730 So.2d 882, 885 (per cu-riam). While the workers’ compensation laws are to be construed liberally in favor of the claimant, that interpretation cannot lessen the claimant’s burden. Id.

When an employee has suffered an injury covered by worker’s compensation law that precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. LSA-R.S. 23:1226(A). The goal of such services is to return a disabled worker to work at some form of employment, with a minimum of retraining, as soon as possible after an injury occurs. LSA-R.S. 23:1226(B)(1). To be entitled to rehabilitation services, the employee must first prove that her work-related injury precluded her from earning wages equal to wages earned prior to the injury. Springfield v. Wal-Mart # 1266, 01-2543 (La.App. 1st Cir.11/8/02), 835 So.2d 736, 742.

Ms. Cooper claims she is entitled to reinstatement of TTD benefits during a period of vocational rehabilitation. However, the facts of this case simply do not meet the legal requirements for such benefits. It is clear that Ms. Cooper’s TTD benefits were appropriately terminated when she returned to work in May 2000, since her disability status had ceased. The physical restrictions placed on her by her doctor at that time and at all times since that date do not preclude all forms of employment, and her own testimony and post-accident experience indicate she was and is capable of working in some capacity. Therefore, her employer was not required to reinstate TTD benefits when she stopped working. Furthermore, she received physical therapy after her surgery and was able to return to her preinjury employment at wages equal to what she earned prior to her injury. Accordingly, no further rehabilitative services were required. Ms. Cooper simply failed to establish that she was unable to earn wages equal to what she earned prior to her injury. Therefore, the trial court did not err in denying rehabilitative services.

PENALTIES AND ATTORNEY FEES

Penalties and attorney fees are recoverable under LSA-R.S. 23:1201(F) if the employer or insurer fails to commence payments of benefits timely or to pay continued installments or medical benefits timely, unless the claim is reasonably controverted. Attorney fees, but not penalties, are recoverable under LSA-R.S. 23:1201.2 if the employer or insurer arbitrarily and capriciously discontinues payment of benefits due. These statutes provide for imposition of penalties and attorney fees to discourage indifference and undesirable conduct by employers and insurers, and are essentially penal in nature. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Canizaro v. Tangipahoa Parish School System, 02-1913 (La.App. 1st Cir.8/20/03), 853 So.2d 741, 744.

Ms. Cooper claims her employer’s prescription defense was frivolous, and she is therefore entitled to penalties and attorney fees under either or both of the above statutes. Under the facts of this case, she is not entitled to recover such damages under LSA-R.S. 23:1201(F), because her employer timely paid all medical expenses and timely commenced and continued payment of TTD benefits until Ms. Cooper returned to work. With reference to LSA-R.S. 23:1201.2, the employer’s decision to discontinue payment of benefits in May 2000 was required by her return to work, and thus was not arbitrary and capricious.

In addition, we find that her employer’s refusal to recommence or reinstate benefits at any time after her disputed claim was filed was reasonable. Ms. Cooper actually had no actionable claims in March 2001 when she filed for benefits; all her medical expenses were being paid and she was back at work earning her full pre-injury wages in her permanent position and in two temporary, part-time positions. At that time, she simply was not entitled to any benefits at all, and to refuse payment could not have been unreasonable, arbitrary, or capricious. When she later left her employment and then was terminated from her position, her employer had her doctor’s evaluation of her condition indicating she was not totally disabled. Therefore, the refusal to reinstate TTD benefits was justified. Although SEB might have been available, Ms. Cooper had to establish her entitlement to such payments by demonstrating an inability to earn at least 90 percent of her pre-injury wages. Even when given the opportunity to present this claim to the trial court, she failed to carry her burden of proof. We conclude the trial court did not err in failing to impose penalties and attorney fees on the employer, when the employer did not owe any additional benefits. See Springfield, 835 So.2d at 742.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Ms. Cooper.

AFFIRMED.

      . The record indicates this may have been the last week of school before the summer vacation.

      . Because she had already been paid 26 weeks of wage benefits, this award was completely offset by the credit.

      . We note, however, that the records from his office include a May 8, 2000 notation on a telephone message to Ms. Cooper, stating the instructions given to patient were, "RTW @ no restrictions 5/11/00.”

      . LSA-R.S. 23:1201(F) has since been amended by 2003 La. Acts, No. 1204.

      . LSA-R.S. 23:1201.1 was repealed by 2003 La. Acts, No. 1204.

      . Additionally, although benefits may have been payable at that time for scarring and disfigurement resulting from the surgery, the payments that had already been paid for TTD sufficed to fully offset the maximum available for such benefits, so nothing further was due for this claim.


text:
    SECRET COVE, L.L.C. v. George Ronald THOMAS and His Wife, Audrey Lee Dykes Thomas
    No. 2002 CA 2498.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Rehearing Denied Jan. 22, 2004.

      Ronald W. Guth, Slidell, for Plaintiff-Appellant Secret Cove, L.L.C.
    Howard R. Fussell, Jones Fussell, L.L.P., Covington, for Defendants-Appel-lees George Ronald Thomas and Audrey Lee Dykes Thomas.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   PARRO, J.

Secret Cove, L.L.C., the record owner of certain real property, appeals a judgment declaring that George Ronald Thomas and his wife, Audrey Lee Dykes Thomas (the Thomases), acquired ownership of a portion of that property by thirty-year acquisitive prescription. Based on our review of the facts and law, we affirm in part, vacate in part, and remand for amendment of the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 1997, Secret Cove, L.L.C. (Secret Cove), a corporation owned by Dr. Robert M. Hogan and his wife, Deborah Surgi Hogan (the Hogans), bought a tract of rural land in Section 35, Township 5 South, Range 13 East, St. Tammany Parish, containing approximately 216 acres. The property is south of Lock No. 2 and borders the western edge of the Pearl River Navigational Canal (the canal); the southern boundary of the property is the section line between Section 35 and Section 48. At the time of the purchase, a small portion of the property, between one and three acres in the extreme southeastern part of the tract adjoining the canal (the disputed property), was the site of a campground operated by the Thomases. The Thomases were and are the record owners of property in Section 48 that is immediately adjacent to and south of the disputed property. The disputed property, a narrow finger of land alongside the canal, extends perpendicularly from the section line northward into Section 35. After Secret Cove bought the property in Section 35, the Hogans attempted to obtain possession of the disputed property; however, the Thomases refused to leave. Eventually, this litigation between the parties ensued.

Secret Cove filed this suit as a petitory action on October 29, 1999, claiming ownership of and seeking possession of the disputed property, along with damages for trespass and lost revenues. The Thom-ases reconvened, claiming that they possessed the disputed property and that they and their family had possessed it continuously and openly since about 1957. They claimed that by virtue of thirty-year acquisitive prescription, they had acquired ownership of the disputed property.

Secret Cove presented evidence of its title, and the parties stipulated at trial that Secret Cove had valid record title to the disputed property. Therefore, the only issues at trial concerned the extent and nature of the Thomases’ possession and whether it met the legal requirements for thirty-year acquisitive prescription. Following the trial, the court ruled in favor of the Thomases, finding they had continuous and open possession of the disputed property for thirty years, with the intent to own it and within certain described visible boundaries. The court concluded that although the Thomases’ title over their property in Section 48 did not extend to the disputed property in Section 35, the possession of the disputed property by Jack J. Thomas, which began in 1957, could be tacked to that of his son, George Ronald Thomas. By tacking the father’s possession to the son’s possession, the court concluded the Thomases had reached the thirty years required for acquisitive prescription.

The judgment was signed July 9, 2002, maintaining the Thomases’ plea of thirty-year acquisitive prescription and declaring them to be the owners of the disputed property. Secret Cove appealed, assigning as error the trial court’s factual findings relative to visible boundaries; its conclusions that the nature and extent of the Thomases’ possession satisfied the legal requirements for thirty-year acquisitive prescription; its signing of a judgment in which the eastern boundary line is described differently from the court’s findings as set forth in its reasons for judgment; and its credibility determinations with respect to the witnesses who testified at the trial.

APPLICABLE LAW

In Louisiana, the petitory action is available for the recovery of immovable property. A.N. Yiannopoulos, Property § 268, at 540, in 2 Louisiana Civil Law Treatise (4th ed.2001). The petitory action is brought by a person who claims ownership, but is not in possession, of immovable property, against another who is in possession or who also claims the ownership of that property, seeking to obtain judgment recognizing the plaintiffs ownership. See LSA-C.C.P. art. 3651. Acquisitive prescription beyond title by possession to a visible boundary for a period of thirty years may be pleaded as a defense in a petitory action. Cuthbertson v. Unopened Succession of Tate, 544 So.2d 1236, 1239 (La.App. 3rd Cir.1989). In a petitory action, 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. 2nd Cir.4/5/00), 756 So.2d 680.

Ownership of immovable property may be acquired by the prescription of thirty years without the need of just title or possession in good faith. LSA-C.C. art. 3486. Ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. Under the general codal provisions on acquisitive prescription, a possessor lacking good faith and/or just title may acquire prescriptive title to land by corporeally possessing a tract for thirty years with the intent to possess as owner. Such possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public, and unequivocal, and confers title only to such immovable property as is actually corporeally possessed. See LSA-C.C. arts. 3424, 3426, 3476, 3486, 3487, and 3488; Falcone v. Springview Country Club, Inc., 96-0794, 0795, and 0796 (La.App. 1st Cir.3/27/97), 691 So.2d 314, 316.

For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed. LSA-C.C. art. 3487. Actual possession must be either inch-by-inch possession or possession within enclosures. According to well-settled Louisiana jurisprudence, an enclosure is any natural or artificial boundary. LSA-C.C. art. 3426, comment (d), Revision Comments — 1982, citing A.N. Yiannopoulos, Property §§ 212-214, in 2 Louisiana Civil Law Treatise (2d ed.1980). The party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Conway v. Crowell Land & Mineral Corp., 93-1158 (La.App. 3rd Cir.4/6/94), 635 So.2d 544, 549-550, writ denied, 94-1198 (La.7/1/94), 639 So.2d 1166; Hill v. Richey, 221 La. 402, 420, 59 So.2d 434, 440 (1952).

One is presumed to intend to possess as owner unless he began to possess in the name of and for another. LSA-C.C. art. 3427. The intent to possess as owner may be inferred from all of the surrounding facts and circumstances. Livingston v. Unopened Succession of Dixon, 589 So.2d 598, 602 (La.App. 2nd Cir.1991).

Possession can be transferred by universal title or by particular title. LSA-C.C. art. 3441. When possession is so transferred, the possession of the transfer- or is tacked to that of the transferee if there has been no interruption of possession. LSA-C.C. art. 3442. Under these provisions, privity of contract or estate is an essential prerequisite to tacking of possession. Brown v. Wood, 451 So.2d 569, 573 (La.App. 2nd Cir.), writ denied, 452 So.2d 1176 (La.1984).

Alternatively, under Louisiana Civil Code article 794, a title holder may acquire more land than his title calls for by possessing property beyond his title for thirty years without interruption and within visible bounds. Such a title holder may attain the thirty-year possessory period— which is necessary to perfect prescriptive title in the absence of good faith and just title — by “tacking” on to the possession of his ancestor in title. LSA-C.C. arts. 794 and 3442; Brown, 451 So.2d at 572-73; Falcone, 691 So.2d at 317. Under Article 794, the privity of title between the possessor and his ancestor in title need not extend to the property to which the possessor asserts prescriptive title; under this article, the juridical link, or written instrument that passes to the possessor from his ancestor in title need not encompass or include the particular property to which the possessor claims prescriptive title. Brown, 451 So.2d at 572-73. In that sense, tacking under Article 794, which allows one to prescribe beyond title on adjacent property to visible boundaries, differs from tacking under Articles 3441 and 3442, which limit tacking for prescriptive purposes to the property described in title documents. See Brown, 451 So.2d at 573.

Whether a party has possessed property for purposes of thirty-year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong. Phillips v. Fisher, 93-928 (La.App. 3rd Cir.3/2/94), 634 So.2d 1305, 1307, writ denied, 94-0813 (La.5/6/94), 637 So.2d 1056. Additionally, boundary location is a question of fact, and the determination of its location by the trial court should not be reversed absent manifest error. Bowman v. Blankenship, 34,558 (La.App. 2nd Cir.4/4/01), 785 So.2d 134, 138, writ denied, 01-1354 (La.6/22/01), 794 So.2d 794. Where findings are based on determinations regarding the credibility of witnesses, the trier of fact’s findings demand great deference and are virtually never manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Gewalt v. Stevens, 98-2666 (La.App. 1st Cir.9/24/99), 757 So.2d 705, 707, writ denied, 99-3063 (La.1/7/00), 752 So.2d 865.

DISCUSSION

The trial court provided extensive written reasons, summarizing the evidence supporting its judgment and explaining how that evidence met the legal criteria for adverse possession sufficient to acquire ownership of immovable property. We will not attempt to re-summarize that evidence. However, we will briefly examine those factors necessary to address the assignments of error.

Evaluation of Witnesses’ Testimony

First, we note that Secret Cove questions the trial court’s assessment of the credibility of the fact witnesses called by the Thomases, along with its reliance on such “vague and contradictory testimony” to establish the facts of possession. The court’s decision to discount the testimony of one of Secret Cove’s experts has also been questioned. It is axiomatic that when factual findings are based on the credibility of witnesses, the fact-finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court, for only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844. It is only when documents or objective evidence so contradict the witness’s story or the story itself is so internally inconsistent or implausible on its face that a reasonable fact-finder would not credit the witness’s story, that the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845. Further, the rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990).

Having examined the testimony and documentary evidence, we find no inconsistency, implausibility, or other indicia sufficient to establish that the trial court’s conclusions concerning the witnesses were clearly wrong. While this court might have evaluated some or all of that testimony differently, the assessments are well within the trial court’s purview and are not unreasonable. Therefore, this assignment of error is without merit.

Visible Boundaries

In two of its assignments of error, Secret Cove alleges the trial court erred in: (1) establishing visible boundaries when there are none on three of the four sides of the disputed property, and (2) determining the Thomases had acquired ownership of that property through thirty-year acquisitive prescription by finding visible boundaries and possession. The court stated that two of the boundaries are not in dispute, those being the section line on the south and the canal on the east. Although Secret Cove argues that a section line is not visible, various maps in evidence show that the section line is marked on the'ground by concrete monuments set in place by the U.S. Army Corps of Engineers. Therefore, we find no error in the trial court’s determination that one of the visible boundaries of the Thomases’ possession is the section line.

However,, although the parties agree that the canal constitutes the visible eastern boundary of the Thomases’ possession of the disputed property, the judgment differed from the written reasons and described that boundary as “a point out in the canal to establish a line which will clear all docks and improvements] in the water.” Both parties state this was an error, because possession to this extent was not established for the requisite amount of time, and agree that the judgment should have set the eastern boundary as the west bank of the canal. Based on the photographic and testimonial evidence, which indicates no dock-building activity on the disputed property until the 1970’s, this court agrees that this aspect of the judgment is in error.

As noted by the trial court, the most problematic “visible boundaries” involve the northern and western limits of the Thomases’ possession. The court fixed these boundaries in accordance with a map or plat .of survey by Billy C. Daniels, who surveyed the disputed property for the Thomases. The trial court set the northern boundary of their possession along the southern edge of a natural drainage feature, known.to the Thomases as “Jessie Bayou,” which drains into the canal from the swamp area to the north and west of the disputed property. Secret Cove argues there was no evidence to show possession to that point, but only that the Thomases conducted some activities involving a large sand pile just south of that waterway.

We disagree with this characterization of the evidence. Reverend William J. Harris, who is George Thomas’s half brother, testified that George’s father, Jack J. Thomas, had a sand and gravel business on the Thomas property in Section 48 and used the disputed property to stockpile the product. According to him, these piles extended from the section line “all the way up here to Jessie Bayou,” right to the edge of it. In connection with the sand and gravel business, “the waterfront,” which was what the Thomas family called the disputed property, was where barges were tied while the product was being loaded. He recalled that one of those barges got loose in 19571 and floated to the north until it ran aground at a sandbar at Jessie Bayou. The sand pile immediately to the south of Jessie Bayou is what remains of the sand and gravel that Rev. Harris off-loaded from that barge so it could be re-floated. After that year, the family used a bulldozer to clear and maintain the road “all the way back up here to Jessie Bayou.”

Jack H. Thomas, George’s brother, confirmed the location of the sand and gravel piles and said the road was kept open because his father “sold gravel from up there,” and the buyers used the road to access the material. The sand and gravel business continued from the late fifties until the campground was built in 1967. Josephine Thomas, who is George Thomas’s mother, confirmed that the family had used the waterfront property for “over fifty years,” up to Jessie Bayou. She recalled that some of her husband’s friends liked to camp there, because they had mentally handicapped children who could be allowed to play on the sand pile in safety. George Thomas testified that after the commercial campground was started in 1967, his father “always kept underbrush out of there, and he always kept that road cleared that runs along the canal.” He also said that on the north end, the grassy area was always kept cleared, because “that’s mainly where we picnicked and tent camped.”

The surveys, aerial photographs, and topographic maps in the record clearly show the elevated sandy area just south of Jessie Bayou, although the waterway itself is not so clearly marked and is not named on the maps. However, there was consistent testimony concerning the existence of this natural boundary and the activities of the Thomas family up to that feature, including the sand and gravel operation, tent camping, picnics, road maintenance, and clearing of underbrush. This evidence supports the trial court’s finding that the southern edge of Jessie Bayou is a visible boundary marking the northern limit of the Thomases’ possession of the disputed property. Of course, there was evidence to the contrary from Secret Cove’s witnesses. But the function of the trial court is to make a choice between conflicting versions of events, and this court cannot say, on the basis of the record in this case, that the trial court’s choice of this boundary is clearly wrong.

Similarly, with respect to the western boundary, the record contains numerous references to a distinct difference in elevation between the disputed property and the swamp area lying immediately to its west. According to Daniels, “there’s about a two-foot difference in height there,” along which he drew the western boundary line on his survey. Another surveyor, Jeron Fitzmorris, confirmed that this difference was “visible as a natural distinction between high and low,” and observed “by walking along in spots between the high and the low that it’s a natural — it’s sort of like a natural boundary as a river bank would be.” Jack H. Thomas testified that at some point, his father had painted marks on some of the cypresses along the edge of the swamp “to keep people from running off into the swamp” where there was quicksand. Frank Thomas said the line between the “waterfront property” and the swamp was especially evident when the water was high, because then the disputed property “would be the only place that the land would be showing.” Topographic maps confirm the existence of this natural feature distinguishing the area used by the Thomases from the “gum swamp” to its west.

Secret Cove’s brief to this court states that the best legal definition describing what is required for a visible boundary is in Rathborne v. Hale, 95-1225 (La.App. 4th Cir.1/19/96), 667 So.2d 1197, 1201, writ denied, 96-0747 (La.5/3/96), 672 So.2d 692, where the court stated:

An enclosure does not require a fence but it does require that the land possessed as owner may be established with certainty, either by natural or artificial marks, sufficient to give notice to the world of the character and the extent of the possession, as well as its full identity and its certain boundaries.

Applying this definition, we conclude that the visible boundaries recognized by the trial court, with the exception of the error concerning the canal on the east, are supported by the evidence and are sufficiently certain and identifiable to meet the legal criteria.

Possession

In the Rathborne case, the court ultimately concluded that although certain visible boundaries existed, the adverse possessor had not established by a preponderance of the evidence his requisite thirty years of “continuous, uninterrupted, adverse possession up to that boundary” with intent to own. Rathborne, 667 So.2d at 1209. In the matter before us, the parties stipulated that the Thomases had been in continuous corporeal possession of the disputed property and had been using it as a campground since 1975. Therefore, it is their possession between October 1969 and 1975 that is crucial to the resolution of this case.

To have legal effect, possession must be continuous, uninterrupted, peaceable, public, and unequivocal as to the intent of the possessor to own the property. See LSA-C.C. arts. 3435 and 3436. One who proves that he had possession at different times is presumed to have possessed during the intermediate period. LSA-C.C. art. 3443. The quality of possession required up to a visible boundary in a particular case depends upon the type of land in dispute. Liner v. Louisiana Land and Exploration Co., 319 So.2d 766 (La.1975); Cuthbertson, 544 So.2d at 1239. The land involved in this case is wild, undeveloped, rural property; the entire area is virtually uninhabited except for the Thomases to the south, and the disputed property is inaccessible except by boat or by a road through the Thomas property. The Thomases did not occupy the disputed property or any part of it on a continuous basis during these years; however, possession does not require them to inhabit the property or be constantly present on it. Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. LSA-C.C. art. 3425. The evidence shows continuity of their possession during the years in question by clearing the underbrush, maintaining the road alongside the levee, and developing the campground area. Testimony of several witnesses revealed that the clearing for the campground, which began in 1967, continued during later years as the camping activity increased. The aerial photographs, as interpreted by-experts for both sides, show clearing activity on both sides of the road in 1967, plus removal of ground vegetation and the presence of dirt piles along- the canal. The large sand pile just south of Jessie Bayou is also clearly visible, as is the road leading to it. A 1971 photograph shows additional widening of the road and a possible “turn-around” area on the disputed property. By 1973, three trails can be clearly seen on the disputed property, leading from the road to the canal. A 1975 photograph shows extensive clearing and five small structures on the disputed property. By 1978, there were permanent structures on the disputed property, along with a number of boat docks.

The Thomases exercised possession as if they owned the disputed property — giving permission for their friends to use the property for camping, fishing, and picnicking; allowing people to use the road to access the sand pile near Jessie Bayou; selling or giving away the sand and gravel on the property; tying up boats and using the waterfront for recreation whenever they pleased; and eventually expanding their commercial campground to include the property. They took possession of the property peaceably and openly, and in all the years they used it until this suit was filed, there is no evidence that anyone every questioned their right to use the property or tried to remove them from it.

Based on our review of the evidence in this case, we find a reasonable factual basis in the record for the trial court’s finding that the Thomases possessed the disputed property as owners for thirty years. The evidence supports the conclusion that the nature and extent of that possession satisfied the requirements of acquisitive prescription. Furthermore, we find nothing in the record to convince us that the trial court’s conclusion was manifestly erroneous. The trial court’s application of the legal principles of tacking under Louisiana Civil Code article 794 were also correct, thereby allowing the possession beyond the title of Jack J. Thomas to be added to that of his son to reach the requisite thirty years for ownership under acquisitive prescription.

As previously noted, we also agree with the trial court’s finding that this possession was within visible bounds. However, the portion of the judgment describing the eastern boundary is erroneous. As the property description in the judgment uses compass points and measurements in accordance with a survey by Billy C. Daniels, this court is unable to amend the judgment without the benefit of similar information. A judgment affecting title to immovable property shall describe the immovable property affected with particularity. LSA-C.C.P. art.1919. Because this court is unable to render a judgment with an accurate legal description of the entire property, the portion of the trial court’s judgment describing the property must be vacated. The ease will be remanded to the trial court to receive evidence to establish the eastern boundary of the property; to make adjustments to the acreage in the property description, taking the revised boundary into consideration; and to render a judgment with a complete and accurate legal description of the property affected by the judgment.

CONCLUSION

The judgment of the trial court is affirmed, with the exception of the property description in the judgment. That portion of the judgment is vacated, and the case is remanded for receipt of evidence to establish the eastern boundary and acreage and render a judgment describing the property in accordance with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

      . The sale documents were executed by the numerous sellers on various dates in April 1997; the document was recorded on April 28, 1997.

      . A survey done by John G. Cummings for the Hogans showed the existing campsites were situated on 1.15 acres; another survey done by Billy C. Daniels for the Thomases showed the area over which the Thomases claimed possession was a little over 2.7 acres.

      . Because the filing of this suit acted as an interruption of that possession, the Thomases had to establish that they had possessed the disputed property since October 29, 1969.

      . In 1985, Jack J. Thomas and his wife sold a portion of the property in Section 48 to George and his wife to be used as a campground.

      . Both parties agree that if this court determines the trial court was correct in finding the Thomases acquired ownership of the disputed property by thirty-year acquisitive prescription, the eastern boundary line should be modified to conform to the evidence and the written reasons for judgment.

      .An additional assignment of error alleged a lack of due process, in that the case was tried for half a day on September 12, 2001, half a day on November 15, 2001, half a day on March 6, 2002, and several hours on March 7, 2002. However, this assignment of error was not briefed and is considered abandoned. See Uniform Rules, Courts of Appeal, Rule 2-12.4; Canizaro v. Tangipahoa Parish School System, 02-1913 (La.App. 1st Cir.8/20/03), 853 So.2d 741, 744 n. 2.

      . Although Article 794 is in Book II, Title VI of the Louisiana Civil Code, which deals with boundaries and disputes concerning boundary fixing and location, the jurisprudence has extended its principles to situations that are not, strictly speaking, boundary disputes. See, e.g., Swartley v. Feiber, 560 So.2d 507, 509 (La.App. 1st Cir.1990). This case would fit that category, as both parties recognize that the boundary of record between their properties is the section line, which is described in their title documents and is clearly marked on the ground.