author: hEZELL, Judge.

text:
    STATE of Louisiana v. Gary Louis ANDERSON.
    No. KA 03-1601.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      James C. Downs, District Attorney — 9th Judicial District Court, Michael W. Shannon, Assistant District Attorney, Alexandria, LA, for PlaintiffrAppellee State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, LA, for Defendant/Appellant Gary Louis Anderson.
    Gary Louis Anderson, St. Marksville, LA, pro se.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

The Defendant, Gary Anderson, was charged by bill of indictment with second degree murder in violation of La.R.S. 14:30.1. After a bench trial, the Defendant was found guilty of manslaughter in violation of La.R.S. 14:31. On August 12, 2002, the Defendant was sentenced to fifteen years at hard labor. He contends the evidence was insufficient to convict him of manslaughter.

FACTS

On July 27, 2001, a street fight erupted between the seventeen-year-old Defendant and T.G., the fifteen-year-old victim. The victim was stabbed twice during the brief fight and later died at a local hospital.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

Although the minutes of sentencing indicate the trial court advised the Defendant that he had “two years to file for Post Conviction Relief,” the transcript of sentencing indicates the trial court erroneously informed the Defendant that he had two years from the date of sentencing to apply for post-conviction relief. The trial court stated, “[Y]ou have two years to apply for any post-conviction relief after this sentence becomes final on this date, pursuant from this date.” “Pursuant to La.Code Crim.P. art. 980.8, the prescriptive period for filing post-conviction relief ... begins to run when the judgment of conviction and sentence become final.” State v. Jones, 01-539, p. 2 (La.App. 3 Cir. 10/31/01), 799 So.2d 772, 775, writ denied, 02-3310 (La.12/13/02), 831 So.2d 975. Thus, we find the trial court should be directed to inform |¡>the Defendant of the correct provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings.

ASSIGNMENT OF ERROR

The Defendant contends the evidence presented at trial was insufficient to convict him of manslaughter because the victim was the aggressor and the homicide was justifiable.

At trial, Roschund Swain testified he was the best friend of the victim. He stated he lived near both the Defendant and victim his entire life and they all played sports together. He testified that the day before the stabbing there was an argument between the victim and Dante Sikes. Roschund stated the fight started when the victim approached Sikes and asked him what he had said about him. Roschund admitted that the victim threw the first punch at Sikes. Roschund testified as follows:

A. At that time. It wasn’t really a fight. But, like, like, they exchanged punches, but it wasn’t really just a big fight. Because soon as they exchanged punches, Gary [the Defendant] had, like, jumped in and pushed [T.]. And he was, like, “Fight me, instead of the dude, Dante.” That was the day before.

He stated that nothing happened between the Defendant and victim at that time.

Roschund testified that on the following night, he, the victim, and three other friends were sitting outside when the Defendant and his brothers and friends walked down the street and stopped in front of them. Roschund stated they all got up and walked to the curb to meet them. He estimated there were about twenty people at the scene. One of the guys with the Defendant said “Do what you do.” At that point everyone backed up because the Defendant and the victim were getting ready to fight.

Roschund testified about the fight:
|SQ Who started fighting?
A [T.] and Gary. But it wasn’t really a fight. Because [TJ, like, swung a blow at him, like, one or two blows. And while he did, like, he — he had his little hand down ...
Q He — he—
A ... here by his pocket — well, Gary—
Q Well, when you said, “He had his little hand down,” who? Who?
A Gary had his hand down by his pocket, and one of his fists up, like this (Demonstrating), but he never swung. As soon as—
Q You’re indicating he’s holding up his left fist, and his right’s hand down.
A Yeah, his right hand was down.
Q Okay. And—

EXAMINATION BY COURT

Q And did you say [T.] swung at — at the defendant? That [T.] swung at Gary?
A Yes, sir.
Q Okay. Go ahead.
A And, like, when he was, like — like, when they was, like, fixing to do it, like, fight, he was like — it seemed like he waited till [T.] got close to him. And, like, when they got close, he just stabbed him.
Q Okay, did you see him actually stab the defendant?
A Yes, sir.
Q What did you see in his hand?
A I seen a knife in a little. — it was wrapped up in a little white towel.

Roschund testified the victim said “He stabbed me,” and ran off. Then the Defendant told him to “come on” and he saw the knife in his hand.

Roschund stated that he had seen the Defendant pull out the knife from his right front pants pocket. He said the Defendant and the victim were standing very |4close to one another when the stabbing occurred. He said the Defendant just had to reach out of his pocket and stab him.

Roschund explained that he did not expect a weapon to be used in the fight. He testified that everyone at the scene that night knew each other, played ball together every day, and had disagreements. Roschund testified that the only person beside the Defendant who had a knife at the time of the fight was the Defendant’s brother, William. He stated he did not see William with a knife, but after the victim was stabbed William told him he had a knife and would stab him if he started something.

Roschund Swain’s older brother, Desmond Vernon Swain, testified that he is a Southern University student who grew up playing ball with the victim and Defendant. Just before the stabbing occurred, Ros-chund told Desmond not to leave as the Defendant and his group were coming down the street. Desmond saw the two groups of boys in a circle with the Defendant and the victim in the middle fighting. Desmond testified that after a few punches, the victim stepped back and said the Defendant stabbed him. Desmond stated Roschund yelled at the Defendant and the Defendant and his brother then threatened to stab Roschund. He stated he was surprised by the stabbing because the two boys knew each other and did not have any great animosity toward each other.

On cross-examination, Desmond stated he did not see the Defendant stab the victim, but did see the Defendant holding a bloody knife afterward. He described the knife as having about a six-inch blade with the handle wrapped in a towel. Desmond was shown the knife in evidence (J-l) and he stated it looked like the knife the Defendant was holding.

| sKerrell Dunbar testified he was a friend of the victim and knew the Defendant. He testified: ‘Well, we was in the street, and they met up with each other. And, then, [T.] walked up to Gary, and he threw a lick, and he raised up and said he stabbed him.” Dunbar testified he heard the victim say he was stabbed and saw the Defendant with a knife wrapped in a white rag. He stated he assumed the Defendant dropped the knife because he did not see him with it after the stabbing. He also stated the Defendant’s brother said he would stab someone too.

Lonnie Murray testified he witnessed the fight as follows:

So, “later on” came. I happened to be in the neighborhood around there. [T.] was with us, and Gary and his brothers walked up. And Gary asked him, “What’s up? What you going to do, now?” So [T.], they both went in the middle of the street, and they start fighting. - [T.] swung. Gary swung. It was about three or four licks passed, and [T.] broke out running. And everybody was, like, “Man, what’s wrong with you?” And he said, “He stabbed me.” And when I looked at Gary, I seen the knife in his hand. And all the rest of them was, like, all his brothers, Gary’s brothers was, like, “Y’all come on. Y’all can get stabbed, too.” So.

He testified that he did not see the Defendant stab the victim.

Murray testified there was no one else close enough to have stabbed the victim other than the Defendant. He stated the fight between the kids was ordinary and he did not think the Defendant was in such danger that he had to use deadly force to protect himself. Murray stated that the two were going to fight earlier that day, but the Defendant said to wait until later because he was high. Murray testified he told this to the police when he gave his statement, but when given a copy of his statement, he could not find a mention of it. Murray also stated he was surprised by the stabbing and did not see the knife in the Defendant’s hand until after the. victim was stabbed. He stated he saw the Defendant’s two brothers with knives after the fight. He stated he told police the Defendant had five guys with him and they all had knives. Murray testified that he meant the majority of them had knives.

| fiDominique Teasley testified he saw the brief fight. He stated only a few punches were thrown and the victim ran off saying “This nigger stabbing me.” Teasley testified that at the time of the stabbing no one but the Defendant was close enough to the victim to have stabbed him. He did not see the knife during the fight. After the stabbing, the Defendant told Roschund Swain to “come on” as he held the knife. The Defendant’s brother, William, acted like he had a knife as well.

Khalilah Ferrell testified that she did not see the stabbing, but after the stabbing she saw the Defendant standing and holding a knife behind his back leg. She stated the Defendant’s hand was covering the black handle of the knife, and he looked like he was going to swing the knife. She stated she was about five to ten feet away from him at the time. She stated she never saw the victim with a knife.

Mr. Ronnie Dunbar, father of Kerrell Dunbar, testified that he was standing in his yard when the victim came walking toward him. The victim said, “That nigger stabbed me.” When Mr. Dunbar saw blood on the victim’s shirt, he ran to him, saw the wound and immediately took him to the hospital. Later, he flagged down an officer and brought him to the crime scene.

Alexandria Police Corporal Farrell Gas-pard testified that he was flagged down and told there was a possible gang fight on Felker Street. He arrived at the scene along with Officer Lachney and found several people standing around and blood on the ground. The Defendant’s father, Gary Piper, Sr., advised Corporal Farrell that his son was involved in an altercation with another boy. The Defendant was advised of his rights and agreed to cooperate. The Defendant told him that there was a circle of about eight to twelve boys arguing when a fight broke out and somebody got stabbed. Corporal Farrell testified the Defendant did not say who got stabbed, but did say he did not stab the victim. He said he did not know who had stabbed the boy.

|7Officer Randy Lachney testified that Ronnie Dunbar showed him the bloodstained area and told him he had taken the stabbing victim to the hospital. He was present when the Defendant was advised of his rights. Neither officer noticed any injuries on the Defendant. Officer Lach-ney corroborated Corporal Farrell’s conversation with the Defendant. However, Officer Lachney stated he remembered the Defendant mentioned that he heard gunshots during the altercation, but stated he did not have any weapon on him. We note that neither the Defendant nor the witnesses at the scene indicated that a gun was involved in the altercation.

Detective Cedric Green testified that when he arrived at the crime scene officers were holding the Defendant as a suspect. The Defendant was taken to the police department where he was advised of his rights at 11:00 p.m. The Defendant signed a rights form that was introduced as S-l. The Defendant’s transcribed statement was introduced as S-2. In his statement, the Defendant told Detective Green that he was fighting the victim in a crowd when the victim stopped and said someone stabbed him and ran off. The Defendant stated he did not have a knife and did not see anyone else with a knife. Detective Green did not notice any injuries or blood on the Defendant. He testified the Defendant did not complain of any injury during either of his interrogations.

The Defendant was released and arrested later the same night. Detective Green testified he reread the Defendant his rights and questioned him at 3:40 a.m. The rights form was introduced as S-4. The second transcribed statement was introduced as S-5. Detective Green testified as to what the Defendant told him:

A. He advised that he did, in fact, have a knife. He had gone into the house, and picked up the knife out of the kitchen because one of- the — one boy had came to his house and told him that— that — that [T.] wanted to fight him. So he picked up a knife, and then he went outside.
IsQ- Did he indicate, in that second statement, that had[sic] in fact stabbed the victim, [T.GJ?
A. He stated that he, when him and [T.] started fighting, he pulled out the knife, and turned around, and [T.] ran into the knife.

The Defendant stated the knife was in his backyard.

After obtaining permission from the Defendant’s father, the backyard was searched and the bloody knife recovered. Detective Green testified that they searched the house and did not find a bloody towel or anything else with blood on it.

As a former juvenile detective, Detective Green testified that he did not recall the Defendant being involved in any kind of trouble before this incident. After running a criminal background check, Detective Green stated the Defendant had a prior arrest for a “traffic ticket or something” and another charge for contempt of court.

Sergeant Ronald Beeson, crime scene investigator, testified that he took the photographs of the blood spatters in the road at the scene. He testified that it was not unusual that there were not any blood droplets from the immediate area of the fight until about one hundred feet away. He explained that the blood droplets would depend on what the victim was wearing and the amount of bleeding involved. A search of the street area did not reveal any weapons. Sergeant Beeson testified that he went to the hospital and took photographs of the victim’s dead body. He photographed a knife wound to the chest and a small cut on the victim’s finger.

After obtaining a search warrant, Sergeant Beeson saw a knife by the sidewalk in the Defendant’s backyard. The knife was photographed and collected as evidence. Sergeant Beeson identified J-l as the knife from the backyard. He stated it had a small amount of blood on it and that he would normally find more blood on a knife used in a stabbing. A swab of the blood was collected and sent to the crime lab for 19DNA testing. Michelle Gaines of the North Louisiana Criminalist Laboratory testified as a DNA expert that the swabs taken from the bloody knife matched the Defendant and not the victim.

Sergeant Beeson stated he also collected a second knife from under the stereo in the Defendant’s bedroom. Sergeant Bee-son testified that both knives had similar handles and appeared to be a matched pair. On cross examination, Sergeant Beeson stated he was not aware of any search for weapons of the bystanders at the scene. He testified that he did not attempt to match the stab wound on the victim to the bloody knife in the Defendant’s backyard.

Forensic pathologist George M. McCormick testified the autopsy of the victim revealed he had two stab wounds to the left side of his chest. One wound was superficial, but the fatal stab wound was three-and-one-half inches deep and had entered the heart. Both wounds had one sharp end and one blunt end. McCormick testified the size and shape of the common kitchen knife (J-l) was consistent with the wounds on the victim.

McCormick testified as follows:
Q Okay. And I understood — also, doctor, in this case, a number of statements had been introduced that the defendant made shortly after his arrest. And, in one of those statements, the defendant told the arresting officers that he was engaged in a fight or altercation with the victim, and that he pulled a knife. And at the time he pulled the knife, the victim swung at him, and fell into the knife. The defendant, therefore, suggesting this was an accidental stabbing. Is that story, put forth by the defendant, consistent with the wounds you found?
A It’s possible to do that if the victim swings, turns to his left and falls down. Because the wound goes upward, and from his left to his right.
Q Uh-huh.
A So, if he falls forward, it won’t do that. If he falls to his right, it won’t do that. He’s got to fall to his left, and be high enough that his blade can go for approximately three inches up into his chest. He’s got 11ftto fall ...
Q He’d have to swing, and, ...
A ... up and on it.
Q ... and falling toward the ground, all the way down, ...
A Correct.
Q ... for that ...
A Correct.
Q ... to be consistent. But there’s, if there’s — is there anything else you found, with the number of wounds, make the scenario given by the defendant unlikely.
A Well, it’s hardly like that someone falls on a knife twice. I mean, which one is first? The shallow one? And then the victim backs up again and falls on the knife the second time?
Q And harder.
A And harder. Or he falls on the knife, and gets a fatal stab wound in the heart? And, not having had enough, he backs off, and falls on the wound, on the knife again, making a shallow wound? It’s not logical.
Q Not logical. Not consistent.
A Not consistent.

On cross-examination, McCormick stated that he would not necessarily expect the knife that caused the wounds to be covered in blood. But, he stated he would expect to find some trace of the victim’s DNA on the knife. Assuming the knife the Defendant had that night had no DNA of the victim on it, McCormick concluded that the knife either had been cleaned or was not used in the stabbing. He stated it was possible that someone else stabbed the victim during this fight.

Gary Piper, Sr., the Defendant’s father, testified that on the evening in question, he allowed his three sons to walk down to Dante Sikes’ house so Sikes could get some clothes and spend the night. He testified his son was wearing maroon Nike In shorts and a white T-shirt. The shorts he identified were introduced as D-3. Piper noted the shorts do not have a pocket on them. He stated he thought his son had a towel around his shoulders when he left the house. When he returned, he did not have the towel.

When the Defendant returned to his house, he told his father there were a lot of guys outside trying to jump them. Piper stated he went outside, separated the two groups and sent his sons into the house. He did not see the victim outside. Piper said he heard one boy say that his son, William, had stabbed the victim, and he immediately confronted him. He stated William did not have a knife on him and he explained the only thing he had in his pockets was a pack of cookies. Piper testified that the Defendant never told him that he stabbed the victim or accidentally stabbed him.

On cross-examination, Piper admitted the victim was a good kid and a friend of the Defendant’s. He stated he never saw him in any trouble.

The Defendant’s older brother, Gary Piper, Jr., testified about the earlier argument between the victim and the Defendant on the day before the stabbing. He said somebody said Sikes was going to fight the victim. He explained what happened:

A All right, so, it’s, it’s me, myself, Gary, Lil’ William, and Dante. We were going to shoot basketball. So [TJ, [T.] asked Dante, “Did you say you was going to knock me out, or you supposed to have knocked me out?” [T.], I mean, Dante said, “Noh.” And then, before we know it, they got into an altercation. And, all of a sudden, they start fighting. And I’m trying to get to it to break it up. But, before I get to it, my little brother grabbed [T.], and pushed him back, you know- what I’m saying, and I gets in between of them. And, then, Lil’ Gary holding [T.] back, like this. [T.] knocks his arm down, and so they getting in each other face. They having words. So I, I mean, we done separated them. So we go on about our business, and they went about their business. So that was the first altercation.

Piper Jr. testified that as he and the Defendant were breaking up the situation l1g.,between Sikes and the victim, the Defendant and the victim began arguing. The argument ended without incident. The next morning, the victim was at their house playing a video game. Piper Jr. testified that after he left somebody must have told the victim that the Defendant wanted to fight him. Later that day, the victim asked Piper Jr. if the Defendant wanted to fight him. Piper Jr. stated he told him no, that his brother did not say that. Piper Jr. testified that everything was fine and nothing was supposed to happen.

Later that same day, Piper Jr., William King, Sikes, and the Defendant were walking down the street when they saw about fifteen to twenty guys by Dunbar’s house. As they passed by on their way home, the victim asked the Defendant if he was ready to fight now. Piper Jr. said he was trying to tell the Defendant to head to the house when the Defendant took off his hat, beads, and towel. He stated the Defendant threw the towel on the ground. Piper Jr. testified he was going to let them fight to get it over with. The two “squared up” to fight, and a large crowd gathered around them in the street. Piper Jr. stated the two fought for about twenty seconds and suddenly the victim ran off and everyone said he had been stabbed. He testified he did not see the Defendant with a knife, nor did he see him stab the victim. Piper Jr. testified the Defendant was wearing a white T-shirt and maroon shorts.

On cross-examination, Piper Jr. stated that when the victim and the Defendant fought there was no one else within arms’ length of the victim. He testified the rest of the crowd was standing about twelve to fifteen feet away. He testified that he had never seen the two knives that were recovered from his house.

William King, the Defendant’s other brother, testified that he saw the fight and heard the victim say he was stabbed, but he did not see the stabbing. He testified he did not see the Defendant with a knife. King testified that after the stabbing, li3Roschund wanted to fight him so he reached into his pocket and pulled out a pack of cookies. He testified he told Ros-chund “If you think I got a knife, you can come on and run up, I’ll cut you.” He described the scene as mass confusion, with other fights going on as well.

On cross-examination, King stated both he and Sikes were standing near the Defendant during the fight. He testified the rest of the crowd was about ten to twelve feet away. King testified the Defendant told him he thought he stabbed the victim and killed him.

The Defendant testified that he had a knife the night of the stabbing. The Defendant had been at Sikes’ house; when he left, he had a knife, plate, and fork he was taking home with him. On his way home,

he encountered the victim who asked him if he wanted to fight. The Defendant testified that he lied and said he was high to avoid the fight. He admitted he had a white hand towel around his neck that night. He had on red Nike shorts, a white T-shirt, a straw hat and beads around his neck. The Defendant said he had the knife and fork in his hand when he was walking down the street. He testified that when he left his yard, he took his hat off, his chain off, and threw the knife down with them. The Defendant stated he and the victim began fighting, with the victim hitting him first. He testified he hit the victim, but did not have anything in his hand. After the victim was stabbed, the Defendant picked up his hat and hurriedly grabbed the knife by the blade and went home. The Defendant testified he nicked his hand and got blood on the knife. He identified J-l as the knife he had that night. He stated the victim was nearby and told him he was bleeding and it confused him because he saw blood on the knife and had not known at that time that he had cut himself. The Defendant testified he then threw the knife in his backyard. He denied wiping or cleaning the knife. He stated he was not trying to 1 uin.jure the victim in the fight, and thought it would all blow over in a week or two and they would be friends again.

The Defendant stated he originally told police he did not have a knife during the fight. A few hours later he told police the victim fell onto his knife. He testified as follows:

Q Why did you tell the detective that?
A Because that was the best scenario I could come up with. He kept on screaming and hollering at me, telling me I had the knife. He said I did stab him. So I made up a story for him. said, “If that’s what you want to hear, that’s what I’m going to tell you.” So I made up him a little story, right fast. And, then, after that — the only reason I made up a story, from the get-go, is because he told me they was going to charge me with first degree murder. He said, with first degree murder, you cannot get no bond, and, therefore, you got to sit in jailhouse until your court date come.
Q Okay. And you told him?
A Yeah, that’s when I made up that little story for him.
Q Okay, what, what story was that?
A I told him that I had a knife. I told him [T.] hit me in the back of my head, so then I — I said I had a knife in my hand. And when he, I turned around, he was in a motion of trying to hit me again, and he stabbed himself.
Q Okay. Did you stab [T.] that night?
A No, sir. I didn’t have the knife in my hand.
Q Okay. Did you see anyone else stab him?
A No, sir.

He stated he lied to police because they were yelling at him.

The Defendant testified he told his brother, William, that he did not know what happened. He said he only told him he had a knife, and did not know whether or not he told him that he probably stabbed and killed the victim. The Defendant testified that he did not stab the victim. He stated he did not have the knife in his hand when |1sthe fight began. The Defendant testified that the only other person near enough to stab the victim was Sikes. He also denied threatening anyone after the fight.

The Defendant has requested a sufficiency review, contending the evidence established the defense of justification.

In considering questions of sufficiency of the evidence, a reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686.

The Defendant was charged with second degree murder, but the trial court found him guilty of manslaughter. Louisiana Revised Statutes 14:31 provides, in pertinent part:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
The trial court found the Defendant guilty, stating:
The overwhelming evidence is here. And it indicates that Gary Anderson stabbed and killed [T.G.]. I can’t see it any other way. It is unreasonable to assume anything else. And, as the trier of fact in this case, I have been shown beyond a reasonable doubt that that’s what took |1Rplace. And I do believe that this was cooking a long time. This was cooking all that day, for sure. And it was almost inevitable that [T.] and Gary were going to meet. And like someone testified they said, “We might as well go ahead and get it over with.” The problem is, rather than a fist fight, someone was armed with a dangerous weapon.
And it is this Court’s belief, based upon the overwhelming evidence that was presented here, today, Gary Anderson had the knife. Gary Anderson stabbed [T.G.] And, for that reason, I’ll ask the defendant to stand.

The trial court pronounced the Defendant guilty of manslaughter.

The Defendant contends that a manslaughter killing could be justified. The Defendant argues that the State had to prove that he did not have to act in self-defense citing La.R.S. 14:20(A)(1) as providing that a killing is justified “by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” The Defendant contends the evidence shows that he had earlier refused to fight, but that the victim threatened him and started the fight by stopping him in the street and punching him. He stated the victim was the aggressor and that he should not have been required to wait for the victim to finish his violent attack upon him.

We note the Defendant infers that he reasonably believed he was in imminent danger of receiving great bodily harm in the fight. However, the Defendant does not argue that killing the victim was necessary to save himself from that danger. The evidence at trial showed the victim provoked the fight and threw the first punch. Despite that, there was no evidence at trial that the stabbing of the victim was justified. Witnesses at the scene described the fight as brief, with only a few punches being thrown before the stabbing occurred. There was no testimony at trial that the victim was armed with a weapon. Pour witnesses testified that the victim was not armed with any weapon that night, nor did they know him to carry a weapon. Most significantly, the Defendant denied he stabbed the victim, and therefore, presented no |17evidence that the stabbing was in self-defense.

We find the trial court clearly chose to believe the testimony of other witnesses over that of the Defendant who denied that he stabbed the victim. The Defendant recanted his pre-trial confession where he had stated the stabbing was an accident when the victim fell into his knife. It is the role of the fact finder to determine witness credibility, and this court should not second-guess those credibility determinations beyond the sufficiency evaluations under the Jackson standard of review. We find, based on the evidence presented by the State that a rational trier of fact could have found the State proved the elements of manslaughter beyond a reasonable doubt, and in so doing, that the justification defense did not apply. Accordingly, this assignment lacks merit.

DECREE

The Defendant’s conviction is affirmed. The trial court is directed to inform the Defendant of the correct provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Pursuant to La.R.S. 46:1844(W)(l)(a), we have used the minor crime victim’s initials throughout this memorandum.


source: Caselaw Access Project

author: | JETERS, J.

license: Public Domain

text:
    Shirley CAIN v. JCPENNEY COMPANY, INC.
    No. 03-1706.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      George Flournoy, Diane M. Sweezer, Flournoy & Doggett, Alexandria, LA, for Plaintiff/Appellant, Shirley Cain.
    J. Martin Lattier, Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, for Defendant/Appellee, JCPenney Company, Inc.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   SUMMARY DISPOSITION

| JETERS, J.

Shirley Cain appeals a judgment denying her workers’ compensation claim against her employer, JCPenney Company, Inc. (JCPenney). Specifically, Ms. Cain claimed that she suffered from plantar fasciitis of both of her feet due to standing for prolonged periods of time on a hard surface in the course of her employment with JCPenney as a beautician. The workers’ compensation judge (WCJ) con-eluded that Ms. Cain failed to prove by a preponderance of the evidence that her plantar fasciitis and any concomitant problems flowing therefrom were caused by her employment with JCPenney. Rather, the WCJ concluded that Ms. Cain proved only that such a causal connection was possible. Ms. Cain has appealed. The WCJ provided lengthy reasons for judgment which adequately explain his decision, and we find no legal or manifest error therein.

Louisiana Revised Statutes 23:1031.1(A) provides in part: “Every employee who is disabled because of the contraction of an occupational disease as herein defined ... shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.” Additionally, La.R.S. 23:1031.1(B) provides in part: “An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.”

While Ms. Cain’s treating orthopedist and treating podiatrist opined that her plantar fasciitis was work related, a treating physician’s testimony is not irre-buttable,_J^and the inquiry is whether, based on the totality of the record, the fact finder was clearly wrong in accepting the expert testimony presented by defendants over that presented by plaintiff. Miller v. Clout, 03-0091 (La.10/21/03), 857 So.2d 458. Further, where there are two permissible views of the evidence, the fact finder’s choice between the two views cannot be manifestly erroneous. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

It is undisputed that Ms. Cain has high arches or cavus feet, a congenital defect which can cause plantar fasciitis. Additionally, JCPenney presented the opinion of an examining orthopedic surgeon who stated: “I really would question the etiology of her pain. I see chronic plantar fasciitis in a great number of people. I don’t remember anyone specifically with whom I could state that it was work related. Most of us walk on our feet all day long on concrete but I don’t see that as a cause specifically of plantar fasciitis.” Further, Ms. Cain gave a somewhat inconsistent presentation in her IME evaluation and was noted to have “significant symptom magnification behavior present” from a clinical standpoint when referred for diagnostic studies. She also gave inconsistent histories regarding her symptoms and described activities of daily living not necessarily peculiar to her employment that cause her pain to worsen. Moreover, Ms. Cain’s testimony was somewhat inconsistent with her manager’s testimony regarding her working conditions that she claimed caused or contributed to her plantar fasciitis. Importantly, Ms. Cain’s treating orthopedist explained that his opinion regarding causation was based in part on the history Ms. Cain had given him.

While we probably would have weighed the evidence differently and made different credibility calls, we do not find manifest error in the WCJ’s findings of fact. laSimply put, we find that there are two permissible views of the evidence, and therefore we cannot reverse the judgment below.

DISPOSITION

For the foregoing reasons, we affirm the judgment below in accordance with Uniform Rules — Courts of Appeal, Rule 2 16.2(A)(5), (6), and (8). We assess costs of this appeal to Shirley Cain.

AFFIRMED.

      . Although this opinion does not meet the criteria for publication, we are nevertheless required to publish it pursuant to La.R.S. 23:1310.5(F).


author: hPETERS, J.

text:
    Laura HICKS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 03-1732.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.
    Loren Lampert, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, Laura Hicks.
    David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellant, State Farm Mutual Automobile Insurance Company.
    Tracy P. Curtis, Perrett Doise, APLC, Lafayette, LA, for Defendant/Appellee, Farmers Insurance Exchange.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   hPETERS, J.

State Farm Mutual Automobile Insurance Company (State Farm) appeals a trial court judgment assessing fault in a multiple-car collision. For the following reasons, we vacate the trial court judgment and remand the matter to the trial court for a new trial.

The accident giving rise to this appeal occurred on Louisiana Highway 28 in Pine-ville, Louisiana, at approximately noon on August 20, 2001. At the point where the accident occurred, Louisiana Highway 28 is a two-way, four-lane, hard-surfaced highway running generally east and west. Immediately before the accident occurred, Mary Pentecost had stopped her 1996 Chevrolet Blazer in the inside westbound lane of Louisiana Highway 28, in an attempt to make a left turn into a shopping area parking lot. As Ms. Pentecost waited for the eastbound traffic to clear, a westbound 1995 Ford Ranger truck driven by Chastity Kilpatrick struck the rear of her vehicle, knocking it forward. Immediately thereafter, another westbound vehicle, a 1989 Pontiac, driven by Brooke Gaspard struck the rear of Ms. Kilpatrick’s vehicle. This impact knocked Ms. Kilpatrick’s vehicle into the eastbound lane where it struck an eastbound 1999 Chrysler driven by Laura Hicks.

On August 6, 2002, Ms. Hicks instituted suit to recover the damages she sustained in the accident. In her initial petition, Ms. Hicks named State Farm, her uninsured/underinsured (UM) insurance carrier, as the only defendant, asserting that the accident was caused solely by the negligence of Brooke Gaspard, an uninsured motorist. State Farm answered Ms. Hicks’ petition on September 16, 2002. In its answer, State Farm admitted that it had issued Ms. Hicks an insurance policy providing for UM coverage. State Farm further asserted in its answer that Ms. Kilpatrick’s fault was the sole cause of the accident.

1 ^Pursuant to a written order signed by the trial court on March 5, 2003, trial was scheduled for July 18, 2003, at 9:00 a.m. However, on the morning of trial, Ms. Hicks obtained permission from the trial court to supplement and amend her original petition. In her supplemental and amending petition, Ms. Hicks added Chastity Kilpatrick and Farmers Insurance Exchange (Farmers Exchange) as party defendants, asserted that Ms. Kilpatrick’s negligence was a legal cause of the accident, and asserted that Farmers Exchange provided liability coverage for the accident.

Despite the significant change of the litigation’s posture by the addition of Ms. Kilpatrick and Farmers Exchange as party defendants, the July 18, 2003 trial commenced as scheduled with only Ms. Hicks and State Farm participating as parties to the litigation. Ms. Hicks testified and presented the testimony of Pineville City Police Officer Richard Muncey and Ms. Gaspard in support of her claims. Upon completion of the evidence, the trial court took the matter under advisement.

On August 14, 2003, and before the trial court rendered judgment based on the evidence presented at the July 18, 2003 trial, Farmers Exchange responded to the supplemental and amending petition by filing exceptions and an answer. In its exceptions, Farmers Exchange asserted that Ms. Hicks failed to state a cause of action against, had no right of action against, and lacked standing to sue it as the insurer of Ms. Kilpatrick. Additionally, Farmers Exchange asserted that service of process was insufficient and that the supplemental and amending petition was vague. In its answer, Farmers Exchange pled plaintiff and third-party fault, failure on the part of Ms. Hicks to mitigate damages, and recovery limitations pursuant to La.R.S. 32:861 et seq.

|sOn September 12, 2003, the trial court issued brief written reasons for judgment, concluding as follows:

After considering the testimony, evidence and arguments of counsel, the Court finds that the plaintiff was able to prove by a preponderance of the evidence that the uninsured driver, Brooke Gaspard, is 100% at fault for the damages suffered by the plaintiff, Laura Hicks.
The Court finds that the appropriate award of general damages in connection with this matter exceeds the jurisdictional limit of this Court and therefore awards $35,000.00.

The trial court signed a judgment to this effect on September 26, 2003. State Farm appealed, asserting that (1) the trial court erred in its apportionment of fault and (2) the trial court awarded excessive damages.

OPINION

We find it unnecessary to address State Farm’s assignments of error because we conclude that the trial court erred in proceeding with trial after allowing Ms. Hicks to add party defendants to the litigation on the day of trial. This error requires that we set aside the judgment rendered and remand for a new trial, after issue is properly joined as to all defendants.

The matter before us is a civil action, “a demand for the enforcement of a legal right.” La.Code Civ.P. art. 421. As provided for in La.Code Civ.P. art. 463:

Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
(1) There is a community of interest between the parties joined;
(2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
(3) All of the actions cumulated are mutually consistent and employ the same form of procedure.
Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same suit if pleaded |4in the alternative.

Additionally, La.Code Civ.P. art. 1155 provides:

The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein.

The joining of Ms. Kilpatrick and Farmers Exchange as party defendants met all of the requirements of La.Code Civ.P. arts. 463 and 1155, and the trial court had the discretion to allow the supplemental and amending pleading to be filed cumulating the actions against the added defendants. The timing of the pleading and its effect on the litigation raises the problems herein.

Concerning the setting of matters for trial, La.Code Civ.P. art. 1571 provides that “[t]he district courts shall prescribe the procedure for assigning cases for trial” and that “[the prescribed] rules shall not allow the assignment of ordinary proceedings for trial except after answer filed.” (Emphasis added.) This provision is also applicable to city courts. See La.Code Civ.P. art. 4831. When this matter was first set for trial, State Farm, the only defendant, had answered the original petition and the setting was proper. Ms. Hicks’ choice was to proceed to trial against State Farm alone or to join the other two defendants. She chose to do the latter. This had the effect of creating a record where answers were yet to be filed.

It matters not that State Farm failed to object to the supplemental and amending pleading or to request a continuance. While La.Code Civ.P. art. 1562 does provide that the trial court may order separate trials on the issues of liability, damages, and insurance coverage, proceeding with the trial in the matter now before us had the effect of bifurcating the trial of the parties, not of the issues. We recognize that |5La.Code Civ.P. art. 1562 provides authority for the trial court to order a separate trial of cumulated actions if a separate trial “would simplify the proceedings or would permit a more orderly disposition of the case or otherwise would be in the interest of justice.” In the matter before us, the trial court made no such factual findings and failed to issue any order after cumulating the actions against the separate defendants. Additionally, La. Code Civ.P. art. 1562 requires that such a decision must be made “at any time prior to trial” and not at trial.

This litigation is presented to us in a most unusual position. Ms. Hicks has proceeded to trial against State Farm only — ■ her suit against Ms. Kilpatrick and Farmers Exchange is still pending. Thus, arguably, after the trial against State Farm, Ms. Kilpatrick could attempt to have a second trial on the same accident, this time asserting that the sole cause of the accident and her injuries was the negligence of Ms. Kilpatrick. Such a bifurcation circumvents La.Civ.Code art. 2823, which requires that “[i]n any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty.” In the instant case, presumably, the trial court has already apportioned fault among all of the parties involved in the -accident, including Ms. Kilpatrick. Yet, Ms. Kilpatrick and Farmers Exchange remain defendants in pending litigation wherein Ms. Kilpa-trick, without appearing as a party litigant, has been found to not be at fault. Importantly, by setting and proceeding to trial against less than all party defendants, the judicial process is subject to piecemeal litigation and | ^inconsistent judgments arising from multiple trials.

In reaching our conclusion on appeal, we find guidance in La.Code Civ.P. art. 2164, which provides in part that “[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” Based on the record now before us, we vacate the trial court judgment and remand this matter to the trial court for a new trial, after issue has been joined as to all defendants.

DISPOSITION

For the foregoing reasons, we vacate the trial court judgment and remand the matter to the trial court for a new trial. We tax all costs of this appeal equally between the plaintiff, Laura Hicks, and the defendant, State Farm Mutual Automobile Insurance Company.

JUDGMENT VACATED AND CASE REMANDED FOR A NEW TRIAL.

      . Erroneously referred to in the supplemental and amending petition as "Farmers Insur-anee.”

      . Although it did not participate in the trial, Farmers Exchange has filed a brief in this appeal. Understandably, Farmers Exchange basically adopts Ms. Hicks’ position that the trial court judgment should be affirmed.


author: | .THIBODEAUX, Chief Judge.

text:
    Joseph K. FONTENOT v. PYRAMID ALLOYS, INC.
    No. 03-1743.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      Richard Mary, Moss & Associates, Lafayette, LA, for Defendant/Appellant-Pyramid Alloys, Inc.
    Aaron Wayne Guidry, Porter & Guidry, L.L.C., Lafayette, LA, for Plaintiff/Appel-lee-Joseph K. Fontenot.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   | .THIBODEAUX, Chief Judge.

In this workers’ compensation case, the defendant, Pyramid Alloys, Inc. (Pyramid), appeals the ruling of the Workers’ Compensation Judge (WCJ), finding that the plaintiff, Joseph K. Fontenot, proved by a preponderance of the evidence that he sustained a work-related accident. The WCJ awarded Mr. Fontenot past and future supplemental earnings benefits in the amount of $300.00 per week, $2,000.00 in penalties and $6,500.00 in attorney fees. We affirm.

I.

ISSUES

1) Was the WCJ manifestly erroneous in finding that Mr. Fontenot was entitled to supplemental earnings benefits?

2) Was the WCJ manifestly erroneous in awarding Mr. Fontenot penalties and attorney fees?

II.

FACTS

Mr. Fontenot was a warehouse manager for Pyramid, a company that sells welding rods. Pyramid is based in Humble, Texas. However, Mr. Fontenot worked in its Broussard, Louisiana office. Mr. Fonte-not’s duties included unloading packages of welding rods with a forklift, making deliveries, doing invoice tickets and taking inventory.

Mr. Fontenot claims that on August 10, 2001, he was injured while working in the course and scope of his employment. Mr. Fontenot testified that as he was trying to change the fuel pump on Pyramid’s forklift, he felt something pull Lin his back and a burning sensation down his legs. He went to Lafayette General Hospital (LGH) complaining of lower back pain and pain in his legs.

On his first visit to LGH, Mr. Fontenot received an epidural injection and was sent home. He went back to the emergency room and was admitted for several days. Dr. Luiz C. DeAraujo ran several tests on Mr. Fontenot, including an MRI, which revealed ruptured discs in his back. Mr. Fontenot went back to LGH in February of 2002 complaining of back pain. He was given another epidural injection and was sent home. He came back a week later and received another MRI which revealed the same ruptured disc as in August 2001. Mr. Fontenot had surgery for his back on March 5, 2002. However, after his surgery, he sought treatment at Lafayette Bone and Joint Clinic because his symptoms had worsened. Pyramid paid Mr. Fontenot wages until he was discharged in November 2002 but did not pay his medical expenses.

Mr. Fontenot filed a disputed claim for compensation on September 3, 2002. The WCJ ruled that Mr. Fontenot proved by a preponderance of the evidence that he sustained a work-related injury. The WCJ awarded Mr. Fontenot past and future supplemental earnings benefits in the amount of $300.00 per week from December 1, 2002, $2,000.00 in penalties and $6,500.00 in attorney fees. Thereafter, this appeal was filed.

III.

LAW AND DISCUSSION Standard of Review

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. |aUnder the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfin-der’s choice between them can never be manifestly erroneous or clearly wrong. Id. Accordingly, if the trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

Work-Related Accident

Louisiana Revised Statutes 23:1031 requires a workers’ compensation claimant to initially establish personal injury by accident arising out of and in the course of his employment. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). Louisiana Revised Statutes 23:1021 defines an accident for purposes of workers’ compensation:

(1) “Accident” means an unexpected or unforseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

In Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98), 724 So.2d 853, 855, this court discussed the claimant’s burden of proving that an accident occurred:

To recover workers’ compensation benefits, a claimant must establish by a preponderance of the evidence that an accident occurred on the job site and that an injury was sustained. Garner v. Sheats & Frazier, 95-39 (La.App. 3 Cir. 7/5/95); 663 So.2d 57. A worker’s testimony alone may be sufficient to discharge this burden |4of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. [Jet] at 60. The evidence is viewed in a light most favorable to the claimant. When there is proof of an accident and attendant disability, without an intervening cause, it is presumed that the accident caused the disability.

In the present case, Mr. Fontenot presented the only testimony regarding the occurrence of an accident since there were no witnesses to the accident. Mr. Fonte-not’s neighbor, Mr. Wayne Forrester, testified that he always saw him working on the forklift. However, he did not witness the accident that day.

Mr. Fontenot testified that on August 10, 2001, he was injured while working in the course and scope of his employment. Mr. Fontenot recalled that he was trying to change the fuel pump on Pyramid’s forklift when he felt something pull in his back and a burning sensation down his legs. He testified that he called Mr. David Alexander, Pyramid’s owner, and told him that he needed to go to the hospital because he was in pain.

“In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of this testimony.’ ” Bruno, 593 So.2d at 361 (quoting West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979)). Included in the evidence contradicting Mr. Fonte-not’s testimony is the stipulated testimony of Mr. Alexander. Mr. Alexander reported that Mr. Fontenot only advised him of the accident after he went to the hospital and that Mr. Fontenot was working on his personal pickup truck at the time of the accident. Pyramid also claims that LGH records of August 10, 2001 indicate that Mr. Fontenot was injured on the afternoon of August 9, 2001 and not on August |s10, 2001. In addition, LGH records of August 11, 2001 indicate that Mr. Fontenot was injured while operating a backhoe instead of a forklift. Pyramid contends that the WCJ incorrectly found that the testimony of Mr. Fontenot was plausible and that he presented sufficient evidence for finding that his injury was work-related.

Clearly, there are two permissible views of the evidence regarding whether working on the forklift was the cause of Mr. Fonte-not’s accident. The standard by which we review lower court decisions requires great deference to the trier of fact’s findings, when, as in the present case, such findings are based on determinations regarding the credibility of witnesses. Blackwell v. Kershenstine, 97-210 (La.App. 3 Cir. 2/27/97), 690 So.2d 247, writ denied, 97-0546 (La.3/14/97) 689 So.2d 1390. The WCJ stated that Mr. Fontenot was a credible witness. She stated that his medical history was consistent with the exception of mention of a backhoe, which she attributed to the doctor not knowing the difference between a backhoe and a forklift. It is apparent that the WCJ chose to believe the testimony of Mr. Fontenot over that of Mr. Alexander.

We find that the record supports the conclusion that Mr. Fontenot had an accident while in the course and scope of his employment with Pyramid. His medical records sufficiently corroborate that he injured his back on or about August 10, 2001, as a result of an on-the-job accident. Accordingly, the WCJ’s finding that Mr. Fontenot sustained an accident resulting in a back injury is not in error and affirmed.

Penalties and Attorney Fees

The WCJ awarded Mr. Fontenot penalties in the amount of $2,000.00 and attorney fees in the amount of $6,500.00 because Pyramid failed to pay his 1 fimedical bills and workers’ compensation benefits associated with the back injury he sustained as a result of his work-related injury-

Louisiana Revised Statutes 23:1201 provides for the payment by the employer and/or its insurer of workers’ compensation benefits. In La.R.S. 23:1201(F) it provides in pertinent part:

Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim.

Subparagraph (2) of La.R.S. 23:1201(F) states: “This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.”

Pyramid argues that Mr. Fontenot’s claim was reasonably controverted because his claim, arose out of a January 2, 2002 accident and not from a work-related accident on August 10, 2001. Pyramid argues that on Mr. Fontenot’s May 22, 2002 visit to Lafayette Bone and Joint Clinic, he indicated on a medical history form that he was injured in January 2002.

Mr. Fontenot recalled that, after his August 2001 injury, Mr. Alexander told him to go to the emergency room and to take care of his injury. He also testified that he called Mr. Alexander from the office trailer before he went to the hospital because he did not know how to handle the situation in that he did not have an insurance card. Mr. Fontenot’s hospital records reveal that on August 10, 2001 he was seen at LGH and was given a steroid injection. He was admitted to the hospital on August 11, 2001 and was diagnosed with acute lumbosacral radiculopathy. After |7a MRI was performed, his final diagnosis was central right-sided disc herniation at L4-5.

Mr. Fontenot went to LGH again in February, 2002. He underwent another MRI which revealed the same disc herniation at L4-5, as in August, 2001. In a letter dated February 18, 2002, Dr. Ilyas Munshi stated that he reviewed Mr. Fon-tenot’s MRI from his February visit to LGH, and that Mr. Fontenot would benefit if he underwent surgery. The medical evidence sufficiently links the accident of August 10, 2001 to his surgery of March 5, 2002. There is insufficient evidence that Mr. Fontenot sustained an accident on January 2, 2002 or, that if he did, it was the reason for his surgery.

Whether the WCJ finds that an employer reasonably controverts a claim for benefits is a question of fact. Lyons v. Bechtel Corporation and AIU, 00-00364 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, writ denied, 01-0282 (La.3/23/01), 787 So.2d 996. We find no manifest error in the WCJ’s finding that Pyramid did not reasonably controvert Mr. Fontenot’s claim. Therefore, we affirm the WCJ’s award of penalties and attorney fees.

Additional Penalties and Attorney Fees

Mr. Fontenot argues that he is entitled to additional penalties and attorney fees because Pyramid did not pay its obligation under the judgment. Mr. Fon-tenot contends that Pyramid had an obligation to pay the judgment under La.R.S. 23:1201(G), and its obligation was not suspended by filing a devolutive appeal. Mr. Fontenot did not file an answer to this appeal. Failure to file an answer pursuant to La.Code Civ.P. art. 2133 precludes this court from considering this claim.

J¿V.

CONCLUSION

For the above reasons, the judgment appealed from is affirmed. Costs of this appeal are assessed to Pyramid Alloys, Inc.

AFFIRMED.


author: |, GREMILLION, Judge.

text:
    Michael Wayne BASILE v. Rebecca Elizabeth Bombet BASILE.
    No. 04-25.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      Charles E. Soileau, Bertrand & Soileau, Rayne, LA, for Plaintiff/Appellant Michael Wayne Basile.
    Michael Brent Hicks, McGlinchey, Stafford, PLLC, Baton Rouge, LA, for Inter-venor/Appellee Cumberland Academy d/b/a Gables Academy, Inc.
    J. Christopher Alexander, Esq., Baton Rouge, LA, for Defendant/Appellee Rebecca Elizabeth Bombet Basile.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, GLENN B. GREMILLION and  JOHN B. SCOFIELD, Judges.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   |, GREMILLION, Judge.

In this case, the defendant-appellant, Michael Wayne Basile, appeals the trial court’s judgment ordering him to pay the intervenor, Cumberland Academy d/b/a Gables Academy, $14,000 for past educational expenses, and $838 in child support per month to the plaintiff, Rebecca Elizabeth Bombet Basile, pursuant to La. R.S. 9:315.22(C). For the following reasons, we reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Rebecca and Michael were married in June 1983, and their only child, Emily, was born in May 1985. Michael filed for divorce in August 1997, and the divorce was granted in March 1998. In November 1998, Rebecca filed a rule for modification of child support, citing material changes in circumstance. Rebecca then filed a rule for contempt of court, attorney’s fees, and rental value, claiming that Michael was not paying school tuition as agreed upon in a February 1998 joint stipulation. In February 2000, Michael filed a motion and order to reduce child support. Following a hearing, the trial court reduced the monthly child support and maintenance sum from $1,100 to $838; the reduction representing Michael’s former share of Emily’s private school tuition.

In December 2002, Rebecca filed a motion to determine and make past due support executory and for expedited hearing and costs claiming that Michael had not made a child support payment since March 2002. Michael answered claiming that Rebecca unilaterally moved Emily to a psychiatric boarding school in Georgia called Gables Academy, which charges a yearly tuition of $36,000. Michael claimed that the February 2, 2000 child support order was still in effect and did not extend to 12placement at this new school. Following a hearing in January 22, 2003, the trial court issued a judgment in April 2003, in favor of Rebecca ordering Michael to pay child support arrearages in the amount of $8,382, subject to a credit of $2,240.43 (for a total owed of $6,141.57).

In June 2003, Rebecca filed a petition to enforce child support and for arrearages and a rule for contempt. Rebecca claimed that Michael ceased paying child support when Emily turned eighteen on May 7, 2003. Rebecca claimed that, pursuant to La.R.S. 9:315.22(C), Michael was obligated to continue paying support. Michael answered urging that Emily was not enrolled in an accredited high school or technical school and that he was justified in discontinuing child support payments pursuant to La.R.S. 9:315.22(A). In August 2003, Gables Academy filed an Intervention claiming that Rebecca and Michael failed to pay $41,825.71 in tuition for Emily while she attended Gables Academy from January 2002 to April 2003. Gables Academy prayed that Michael pay it directly for its extraordinary services pursuant to La.R.S. 9:315.6 and 9:315.8

Following a trial held in April, July, and August 2003, the trial court issued its judgment and ordered that the child support obligation, in the amount of $838 per month, continue until Emily attained the age of nineteen. The trial court also ordered Michael to pay one-half of the $28,000 tuition due for the past year directly to Gables Academy.

Michael, thereafter, filed a motion for new trial, which was denied. Michael now appeals.

| «ISSUES
Michael assigns as error:
1. The trial court’s award of child support payments to Rebecca for the period of twelve months after Emily turned eighteen.
2. The trial court’s award of $14,000 to Gables Academy for past educational expenses.
3. Alternatively, the trial court failed to give him credit, against he lump sum award, for the amounts of monthly child support payments made by him to Rebecca for Emily’s benefit.
4. The trial court’s allowing an evaluation report of Dr. John Bolter into evidence over his objection.

Gables Academy also filed a brief urging that the trial court’s ruling ordering Michael to pay it $14,000 was not erroneous.

LA.R.S. 9:315.22

Louisiana Revised Statutes 9:315.22 states (emphasis added):

A. When there is a child support award in a specific amount per child, the award for each child shall terminate automatically without any action by the obligor upon each child’s attaining the age of majority, or upon emancipation relieving the child of the disabilities attached to minority.
C. An award of child support continues with respect to any unmarried child who attains the age of majority or to a child who is emancipated relieving the child of the disabilities attached to minority. As long as the child is a full-time student in good standing in a secondary school, has not attained the age of nineteen, and is dependent upon either parent. Either the primary domiciliary parent or the major or emancipated child is the proper party to enforce an award of child support pursuant to this Subsection.

RMichael urges that Rebecca failed to prove that Emily was a “full-time student in good standing.” Emily attained the age of eighteen on May 7, 2003. She began the “Edge” program administered by Gables Academy, although approximately eighty miles from the Gables Academy school, in January 2002, and graduated from that program on April 19, 2003. The “Edge” program is a “wilderness type experience.” Rebecca testified that the actual cost was $36,000 for twelve months of attendance, but that Emily’s program extended approximately four months for a grand total of $42,000. Rebecca testified that she paid $11,666 in tuition for the school year of 2002, and borrowed $14,000, leaving $28,000 owed for the first year of attendance. Rebecca testified that the amount she paid was 32% because that is what she “was told to pay according to what we had done in a previous court hearing here.”

Rebecca testified that Emily began her-second year in the “Next Step” program on April 19, 2003, upon graduating from the “Edge” program. She testified that the 2003 tuition would be $39,000 and that she was paying her portion by working there for free. Emily then moved on to a program at Shepherd’s Hill Farm, which Rebecca testified has provisional accreditation with the state of Georgia. Rebecca also works at Shepherd’s Hill Farm as a nurse and therapist for the children and families attending the program. Rebecca testified that, at the Shepherd’s Hill program, Emily attended school from 8:00 a.m. to 2:00 p.m. and was instructed by one teacher. She stated that each child is on his or her “own level.” After the school day ends, the students perform chores, attend group meetings, and bible studies. Rebecca testified that Trace Embry and his wife, Beth Embry, run the program, but | (¡neither has a college degree. However, she testified that the teacher, Steven McGiver, is Board Certified in the State of Georgia. Rebecca stated that there are nine kids in this program and the kids live in the woods. She said that they build their own cabins and have no electricity or water. She testified that McGiver teaches all nine kids who are at different levels. She stated that they live in “survival mode,” but that the tuition includes food. She stated that Emily does not live with her at all while attending the program. Rebecca further testified that Emily should graduate from high school in May 2004.

On cross-examination, Rebecca testified that Gables Academy is no longer affiliated with the “Edge” program or the “Shepherd’s Hill Farm” program, partially due to financial problems. Rebecca explained that the “Edge” program was owned by Gables, but placed on Shepherd’s Hill Farm property and run by Shepherd’s Hill Farm staff. Rebecca also testified that Emily is currently looking into attending a private school whose tuition is $250 a month.

Michael testified that, due to the hostile nature of his relationship with Rebecca, he does not have any input into the educational decisions she makes and that basically, he is only informed of the changes in Emily’s education, after the fact. He testified that he did not consent to Emily’s placement at Shepherd’s Hill Farm or Gables Academy and that he never agreed to be bound for the tuition.

Emily testified that she wants to leave the school and move back to Baton Rouge. She stated that she wanted to stay with her dad for a while, but wasn’t sure if she wanted to live there permanently.

LOn the second day of trial, Emily testified that she did not wish to return to Shepherd’s Hill Farm or the State of Georgia. She stated that she wants to live with her father, but did not say anything before because she was afraid she would hurt her mother’s feelings.

The trial court found that the child support obligation of $838 would continue until Emily turned nineteen, because she was a full-time student in good standing at a secondary school who had not yet attained the age of nineteen. Having reviewed the evidence, we find no error in the trial court’s finding. Emily was enrolled in the “Edge” program and was being instructed by a board certified teacher. There is some issue as to whether she was a student “in good standing,” as Rebecca did not enter any school transcripts into evidence; however, the testimony from Emily and her mother is that she did well in the program. Nevertheless, it should be reiterated that the child support obligation is only for the $838 originally ordered by the trial court for as long as Emily remains a full-time student in good standing, until she attains the age of nineteen, otherwise the child support obligation automatically terminates.

LA.R.S. 9:315.6

La.R.S. 9:315.6 states:

By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
(1) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child.

17As an appellate court, we will not disturb the trial court’s findings regarding child support issues absent an abuse of discretion. Dempsey v. Stevens, 611 So.2d 815 (La.App. 3 Cir.1992). At the discretion of the trial court, school tuition payments may be made part of the child support obligation. Id. In this case, the trial court gave no reasons for ordering Michael to pay $14,000 of the previous school year’s tuition. In fact, the trial court specifically stated that Gables Academy is “extremely expensive and may not be in the best interest of Emily.” The issue at hand is whether Rebecca met the burden of proving that attendance at Gables Academy was necessary to meet Emily’s particular needs. We find that it was not and, accordingly, reverse the trial court’s ruling that Michael owes Gables Academy $14,000.

Michael testified that he never agreed to be bound for half of the tuition at Gables Academy. He further testified that he received a contract in the mail which he never signed or returned. It is further undisputed that Rebecca chose the school and that Michael had no input regarding that decision. While a psychologist testified that Emily needed a structured program to meet her needs, the psychologist did not state that Emily needed to attend a $36,000 a year wilderness experience. Clearly, Rebecca and Michael did not agree that these extraordinarily high educational expenses would be added to the basic child support obligation.

We also find the trial court abused its discretion in burdening Michael with half of the obligation owed to Gables. While the trial court may order extraordinary expenses to meet the needs of the child, the mover has the burden of proving that a particular educational need exists and is being met by attendance at the | particular school. See Bertrand v. Bertrand, 637 So.2d 531 (La.App. 1 Cir.1993). We find Rebecca failed to do so. The testimony is clear that Emily is a very bright child who was suffering emotional problems, but there is no proof that living in handmade cabins with no running water or electricity, at a cost of $36,000 per year, met her extraordinary educational needs. Accordingly, Michael is not obligated to pay the $14,000 lump sum for past tuition to Gables Academy. The trial court’s ruling in this regard is reversed.

EVIDENCE

Michael urges that the trial court erred in allowing an evaluation report of a psychologist into evidence. Based on our above findings, this issue is rendered moot. Even considering the evidence, we still find that Rebecca failed to meet her burden of proving that attendance at the Gables programs was required to meet Emily’s educational needs.

CONCLUSION

The judgment of the trial court ordering the defendant-appellant, Michael Wayne Basile, to pay $14,000 directly to Gables Academy is hereby reversed. All other findings are affirmed. The costs of this appeal are assessed equally to Michael and Rebecca.

REVERSED IN PART AND AFFIRMED IN PART.


author: |, SULLIVAN, Judge.

text:
    Charles GANT, Jr. v. Glenn ALEXANDER, et al.
    No. 04-27.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.
    Alicia Johnson Butler, Attorney at Law, New Iberia, LA, for Plaintiff/Appellant, Charles Gant, Jr.
    Julius W. Grubbs, Jr., C. Thomas Bien-venu, Jr., Haik, Minvielle & Grubbs, New Iberia, LA, for Defendants/Appellees, Glenn Alexander, Iran Alexander.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   |, SULLIVAN, Judge.

Charlie E. Gant, Jr. appeals the dismissal of his personal injury suit on an exception of prescription. For the following reasons, we affirm.

Factual and Procedural Background

Mr. Gant alleges that he was injured in an automobile accident on August 15, 2001. On August 15, 2002, he presented a petition for filing to the Iberia Parish Clerk of Court, naming as Defendants Glenn Alexander, Iran Alexander, and Patterson Insurance Company (Patterson), and requesting that all Defendants be served. That petition bears a filing stamp of “2002 Aug 15 A 9:08” and is also stamped “Pauper Suit.” However, Mr. Gant’s application to proceed in forma pauperis is stamped as being filed on August 21, 2002. On August 26, 2002, the trial court denied Mr. Gant’s pauper application, but the denial did not order Mr. Gant to pay court costs within a certain period of time. Mr. Gant paid court costs ten months later, on June 26, 2003, after which all Defendants were served.

On July 21, 2003, Glenn and Iran Alexander filed exceptions of prescription and non-joinder of indispensable parties. On August 8, 2003, Mr. Gant added the Louisiana Insurance Guaranty Association (LIGA) as a Defendant. After a hearing on October 10, 2003, the trial court granted the Alexanders’ exception of prescription. In its oral reasons, the trial court concluded that Mr. Gant’s petition did not interrupt prescription because the clerk’s office did not receive either a filing fee or a pauper application within the one-year prescriptive period.

| ^Opinion

In Hall v. Reber, 03-1482, p. 3 (La.App. 3 Cir. 3/31/04), 870 So.2d 424, 426, this court recently stated:

In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Morrison v. C.A. Guidry Produce, 03-307 (La.App. 3 Cir. 10/1/03), 856 So.2d 1222. Further, “the standard controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes ‘against prescription and in favor of the claim that is said to be extinguished.’ ” Security Ctr. Prot. Servs., Inc. v. All-Pro Security, Inc., 94-1317, 94-1318, p. 12 (La.App. 4 Cir. 2/23/95), 650 So.2d 1206, 1214 (quoting Louisiana Health Serv. v. Tarver, 635 So.2d 1090, 1098 (La.1994)).

Additionally, the burden of proof is ordinarily on the party pleading prescription, unless prescription is evident on the face of the pleadings, in which case the burden shifts to the plaintiff to show that the action has not prescribed. Eastin v. Entergy Corp., 03-1030 (La.2/6/04), 865 So.2d 49. Because Mr. Gant’s petition is stamped as having been filed on the one-year anniversary of his accident, we do not find that the petition has prescribed on its face. Accordingly, the burden of proving prescription remains with the Defendants.

At trial on the exception, the parties stipulated that the Iberia Parish deputy clerks will not sign the filing stamp on a pleading until the pleading is ready for processing, even though it may have been stamped as filed on an earlier date. Counsel for Defendants then pointed out that the copy of the petition attached to Mr. Gant’s opposition memorandum bears a filing stamp of August 15, 2002, but it is not signed by the deputy clerk.

Yvonne Taylor Metzel, a civil suit clerk with the Iberia Parish Clerk of Court’s Office, testified that the pauper application in Mr. Gant’s case was filed on August 21, 2002, at 4:21 p.m. Ms. Metzel explained that, upon denial of an | ¡¡application for pauper status, the clerk’s office will fax the plaintiffs attorney a bill with a request for payment, and that pleadings are not processed until court costs are paid. According to Ms. Metzel, Mr. Gant’s pauper application was denied on August 26, 2002, and fax records from the clerk’s office show that Mr. Gant’s attorney was notified of the denial, with a request for payment of $840.00 in costs, on August 28, 2002, at 2:48 p.m. Ms. Metzel testified that those costs were paid on June 26, 2003, after which service was effectuated.

Louisiana Civil Code Article 3462 provides in part: “Prescription is interrupted ... when the obligee commences action against the obligor, in a court of competent jurisdiction and venue.” Louisiana Code of Civil Procedure art. 421 provides in part: “A civil action is a demand for the enforcement of a legal right. It is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction.”

Defendants argue that the “filing” of Mr. Gant’s petition was not completed within the prescriptive period because he did not provide the clerk with a filing fee or a pauper application within one year of his accident. For the following reasons, we agree.

Under La.R.S. 13:842(A), “[t]he clerks of the district courts shall demand and receive from the plaintiff or plaintiffs in each ordinary suit, ... not less than twenty dollars or such other amount as may be fixed by law for advanced costs.... ” (Emphasis added.) Louisiana Revised Statutes 13:841(A)(1) provides: “The clerks of the several district courts shall be entitled to demand and receive the following fees of office and no more in civil matters: (1) For endorsing, registering, and filing petition, two dollars.”

Lin Jacobs v. Coca-Cola Bottling Co., 37,775, p. 7 (La.App. 2 Cir. 10/20/03), 859 So.2d 250, 254, writ denied, 03-3183 (La.2/6/04), 865 So.2d 725, the court concluded that the district court clerk could not refuse to “endorse, register, and file a petition presented for that purpose along with the statutorily-required fee ” of two dollars, as provided in La.R.S. 13:841(A)(1). (Emphasis added.) In Jacobs, the plaintiff had mailed his petition with a check that did not cover all advanced costs required by the clerk of court. The clerk’s office returned the petition with a statement of costs owed and did not stamp the petition as filed until all costs were paid. Finding that, under La. R.S. 13:841(A)(1), the clerk could not charge more than two dollars to file the petition, and that the amount sent with the petition exceeded that fee, the court held the clerk should have filed the petition on the date that it was originally presented.

In Hall, 870 So.2d at 426-27, this court reached a similar conclusion in applying La.R.S. 13:850, the statute governing the facsimile filing of pleadings. The plaintiff in Hall “faxed” his petition to the clerk of court’s office on the last day of the prescriptive period, along with a check that covered some, but not all, of the advanced costs required by the clerk. Under La. R.S. 13:850(B), the plaintiff had five days from the date of the facsimile transmission to ensure that the clerk of court received the original petition, the “applicable filing fee, if any,” and a transmission fee of five dollars. (Emphasis added.) See Bryant v. Milligan, 00-2524 (La.App. 1 Cir. 6/6/01), 808 So.2d 660. If the plaintiff failed to meet these requirements, the facsimile filing would “have no force or effect” under La.R.S. 13:850(C). Because the amount sent by the plaintiff covered the clerk’s filing fee, but not the fees for service, we found 1 [¡that the plaintiff complied with the statute; hence, the “fax” filing was timely and interrupted prescription.

In the present case, Mr. Gant did not include a filing fee with his petition because he sought to be declared a pauper pursuant to La.Code Civ.P. arts. 5181 through 5188. Article 5183 requires a person seeking to proceed in forma pauperis to apply for permission to do so from the court, either in his first pleading or in a written motion later filed, with certain affidavits attesting to his financial condition. In the present case, Mr. Gant attempted to file his petition on the last day of the prescriptive period, August 15, 2002, but he did not present the affidavits required by Article 5183 until six days later, on August 21, 2002.

The importance of full compliance with Article 5183 is illustrated by the recent supreme court case of Tenney v. Burlington N. & Sante Fe Ry. Co., 03-1260 (La.1/21/04), 863 So.2d 526. In Tenney, the plaintiff “faxed” her petition, as well as a cover letter indicating that pauper forms were being completed, to the clerk’s office with two days remaining in the prescriptive period. The clerk’s office did not receive the plaintiffs pauper affidavits within the five-day period as required by La.R.S. 13:850(B). Holding that the plaintiffs claim had prescribed, the supreme court first concluded that “a proper request for pauper status” would have satisfied the plaintiffs obligation to pay filing and transmission fees, if the clerk of court had received that request within the five days that those fees had to be paid. Id. at 528. However, the supreme court also concluded that the plaintiff failed to comply with the requirements for requesting pauper status. In particular, the supreme court found that the plaintiffs cover letter could not be considered a written motion for pauper status because no pauper affidavits were attached to it.

|fiWe recognize that Tenney and Bryant relied upon La.R.S. 13:850(C), which has no application here. However, we do find that the underlying principle of statutory interpretation in those cases does apply: that a party asserting a claim has a duty “to ensure that it is properly placed before a court of law.” Bryant, 808 So.2d at 663. In the present case, Defendants have shown, through the testimony of Ms. Met-zel, that Mr. Gant did not complete the filing process of his suit within the prescriptive period.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff-Appellant, Charlie E. Gant, Jr.

AFFIRMED.

      . Defendants seek dismissal of this appeal, arguing that Plaintiff failed to timely pay the estimated costs of appeal. After reviewing the record, we find no error in the trial court's failure to dismiss the appeal.


author: h GREMILLION, Judge.

text:
    Bridget J. DOTSON v. BROOKSHIRE GROCERY COMPANY.
    No. 04-83.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      Susan Ford Fiser, Alexandria, LA, for Plaintiff/Appellee Bridget J. Dotson.
    David A. Hughes, Hughes & LaFleur, Alexandria, LA, for DefendanVAppellant Brookshire Grocery Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, GLENN B. GREMILLION and JOHN B. SCOFIELD, Judges.

         Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   h GREMILLION, Judge.

The defendant, Brookshire Grocery Company, appeals the judgment of the city court finding that the plaintiff, Bridget J. Dotson, satisfied her burden of proving its liability for her slip and fall. We affirm.

FACTS

On August 19, 2001, at 8:30 a.m., Dotson had just finished her shift as an LPN at the Veteran’s Administration Hospital and was shopping at the Super One Foods in Pineville, Louisiana. The Super One Foods store is owned by Brookshire. She was in the produce department and tripped when her foot caught under a rug lining the front of a produce bin. Dotson injured her right knee as a result of this fall and was forced to seek medical care and missed a day of work.

Dotson filed suit in Pineville City Court against Brookshire seeking damages for her injury. Following a trial on the merits, the trial court took the matter under advisement and then rendered judgment in Dotson’s favor, awarding her $3,188.95 in general and special damages. This appeal by Brookshire followed.

ISSUE

On appeal, Brookshire argues that the trial court erred in finding that Dotson satisfied her burden of proof pursuant to La.R.S. 9:2800.6(B).

MERCHANT LIABILITY

In order to prove merchant liability in a slip and fall case, the plaintiff must prove, in addition to the usual negligence requirements (duty, breach, cause in fact, and damages), those elements found in La.R.S. 9:2800.6(B):

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
| ?,(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Constructive notice is defined in La.R.S. 9:2800.6(C)(1) as meaning:

[T]he claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

The burden of proof remains with the plaintiff and her failure to prove any of the three above stated elements defeats her cause of action. White v. Wal-Mart Stores, Inc., 97-0893 (La.9/9/97), 699 So.2d 1081.

The reasonable care required of a merchant was discussed by the second circuit in Jones v. Brookshire Grocery Co., 37,117, pp. 8-9 (La.App. 2 Cir. 5/14/03), 847 So.2d 43, 49-50:

Merchants are required to exercise reasonable care to protect those who enter the store, keep the premises safe from unreasonable risks of harm and warn persons of known dangers. Turner v. Brookshire Grocery Co., 34,562 (La.App. 2 Cir. 4/4/01), 785 So.2d 161; Ward v. ITT Specialty Risk Services, Inc., 31,990 (La.App.2d Cir. 6/16/99), 739 So.2d 251, unit denied, 99-2690 (La.11/24/99), 750 So.2d 987; Leonard v. Wal-Mart Stores, Inc., 97-2154 (La. App. 1st Cir.11/6/98), 721 So.2d 1059. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. Turner, supra; Ward, supra; Tanner v. Brookshire Grocery Company, 29,276 (La.App.2d Cir. 4/2/97), 691 So.2d 871. A store owner is not liable every time an accident happens. Turner, supra; Ward, supra; Leonard, supra.
The merchant’s duty of care requires that reasonable protective measures, including periodic inspections, are undertaken to ensure that lathe premises are kept free from substances or conditions that might cause a customer to fall. See Hardman v. The Kroger Company, 34,-250 (La.App.2d Cir. 12/6/00), 775 So.2d 1093; Ward, supra; Stevens v. Winn Dixie of Louisiana, 95-0435 (La.App. 1st Cir.11/9/95), 664 So.2d 1207. Whether measures taken are reasonable must be determined in light of the circumstances of each case. Hardman, supra; Ward, supra. As noted by the court in Stockwell v. Great Atlantic & Pacific Tea Co., 583 So.2d 1186 (La.App. 1st Cir.1991) (citations omitted), the degree of vigilance must be commensurate with the risk involved, as determined by the overall volume of business, the time of day, the section of the store and other relevant considerations.

The court further stated in regards to a trial court’s finding of facts:

A trial court’s findings regarding liability for damages caused by a slip and fall accident at the defendant’s place of business, as well as the presence of comparative fault, are factual determinations that will not be disturbed absent manifest error or unless clearly wrong. Barton v. Wal-Mart Stores, 97-801 (La. App. 3d Cir.12/10/97), 704 So.2d 361; Myles v. Brookshires Grocery Co., 29,-100 (La.App.2d Cir. 1/22/97), 687 So.2d 668. In addition, whether a condition existed for a sufficient period of time that a merchant should have discovered the condition is a fact question; however, there remains the prerequisite showing of some time period. Kennedy[ v. Wal-Mart Stores, 98-C-1939 (La.1999), 733 So.2d 1188] supra.

Id.

After reviewing the record in its entirety, we find no manifest error in the trial court’s finding that Brookshire had constructive notice of the problems caused by these rugs and that it failed to use reasonable care to ensure that this unsafe condition did not continue.

Dotson testified that she often shops at the store in question and was aware that the rugs were maintained in front of the produce bins to prevent the floors from becoming slippery. She stated that she did not see the wrinkled rug prior to her fall, nor did she know how the rug became wrinkled or how long the wrinkle was present.

|4Billy Scarbrock, a produce stacker for Brookshire, testified that he was working at the Pineville store on the morning of August 19, 2001. He stated that his duties include stocking produce and maintaining the floors in his department. He stated that the produce department floors are cleaned every night and then are supervised by that department’s employees during the day. He stated that Brookshire has long green, rubber-backed rugs in front of the produce bins which use sprinklers on the produce. Scarbrock testified that water from the sprinklers falls on the rugs, rather than the floors; thus the rugs provide a safe walkway for the customers.

When he begins work in the morning, Scarbrock testified that he places the rugs back on the floor and then begins stocking the display area. Once he reaches the end of a rack of produce, he stated that he cleans and straightens the rugs located in front of that rack. During the day, he testified that he is in and out of the storage area behind the produce section and that he regularly sweeps and straightens the rugs. He further stated that the rugs are problematic due to their thinness. He described them as being made out of a type of cloth with a rubber backing. He testified that they wrinkle up, which necessitates him going “out on the floor all the time [to] straighten them.” He stated that he straightens the rugs approximately six times a day.

On August 19, 2001, Scarbrock testified that the accident occurred at approximately 9:15 a.m., the time when he just finishes stocking the area utilizing the sprinklers. He stated that he had just straightened the rugs in the area of Dotson’s fall approximately five to fifteen minutes before hand, but he did not specifically look down at the rug which caused her fall. However, he stated that customers walk and|RrolI their shopping carts over the rugs in question. Scarbrock testified that the accident occurred while he was back in the storage area for approximately fifteen minutes. When he arrived back at the display area, he stated that Dotson was on the floor and that the rug was definitely wrinkled.

As evidence of the reasonable care exercised by Brookshire, Dotson introduced Brookshire Store Policy Letter # 59 into evidence. With regard to accident prevention and safety rules, the letter lists five rules:

1. All partners, as a required part of their daily duties, are to be alert to any unsafe conditions and constantly inspect the floors and displays as they work and move about the store.
2. A member of the management team will make regular, store-wide inspections during business hours to promote a safe environment for our customers and partners.
3. Regular SAFETY INSPECTIONS performed by the safety committee chairman should include all floor areas and shall strictly adhere to existing safety guidelines and procedures concerning floor care and maintenance. Any and all unsafe flooring conditions shall be reported on the Safety Inspection Form and sent to the Safety Coordinator immediately.
4. Approved SAFETY FLOOR SIGNAGE shall be placed in such a manner as to provide customers with a reasonable warning and alert that possible unsafe floor conditions may exist in the immediate areas. Without exception, when an unsafe condition is detected on sales area flooring, partners should restrict the unsafe area immediately. The area must be secured before sending for or leaving an area to obtain equipment to perform the necessary clean up or repair.
5.In an effort to enhance floor safety and provide a safe floor surface, approved FLOOR MATS will be used in certain areas of the store that have been identified by industry and company concerns as presenting higher accident-frequency history or higher potential for immediate or future injury to customers or partners.

| (¡Scarbrock admitted that the policy does not provide that inspections occur at specific times or by specific persons. He stated that employees just take care of unsafe situations as they are noticed or brought to their attention.

Considering the foregoing evidence, the trial court’s findings, that Brookshire had constructive notice that its produce department rugs presented a tripping hazard and that it failed to exercise reasonable care in preventing this condition from occurring, are reasonable. Brookshire’s employee testified that the thinness of the rugs caused them to wrinkle easily and that they were constantly having to straighten them. Since most customers purchase produce or travel through that area while grocery shopping, and considering the ease with which these rugs wrinkled, it was reasonable for the trial court to find that Brookshire failed to exercise reasonable care in preventing this accident. The judgment of the trial court is affirmed. This assignment of error is dismissed as being without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed against the defendant-appellant, Brookshire Grocery Company.

AFFIRMED.